By Fuimaono Dylan Asafo*
Opinion - Last week, fresh elections were announced in Samoa by the Head of State, which would revoke the results of the general election held on 9 April.
It was reported that the counsel for the incumbent Human Rights Protection Party (HRPP), Aumua Ming Leung Wai, seeks to justify that declaration, by arguing the call for fresh elections was lawful because they were exercising their 'reserve powers'.
The Attorney General is also likely to make the same argument, and they have indicated that they are likely to engage the services of a Queen's Counsel (a foreign lawyer whose work has been given special acknowledgement by the British Crown) to act or advise on the matter.
In my view, this argument should be rejected, because the Head of State does not have any 'reserve powers'.
I explain my view below:
First, what are 'reserve powers'?
In several democratic countries around the world, 'reserve powers' are powers that may be exercised by the Head of State at their discretion and without the approval of another branch of the government. These 'reserve powers' can only be exercised in extreme and exceptional circumstances.
'Reserve powers' get their name by being the 'reserve' or remaining residue of the original powers that the monarch (i.e. the British Crown) once had back when they were able to govern and rule arbitrarily, before democracy was introduced.
Some key examples of 'reserve powers' include the power to dismiss a Prime Minister, and the power to refuse assent to legislation (as required).
But the most relevant one here is the 'reserve power' to force a dissolution of Parliament and call new elections when there is a hung parliament.
This specific 'reserved power' was almost exercised by Queen Elizabeth II herself in the United Kingdom when there was a hung parliament in 1974, and could have potentially been exercised by the Governor-General of New Zealand (as the Queen's representative) in 1993 when it seemed there was a hung parliament before the results were eventually finalised.
While most of the powers of the Head of State are laid down in a nation's constitution and legislation, these 'reserve powers' are not formally written down in any law. Instead, they are just accepted and regarded to exist and be available to the Head of State in those extreme and exceptional circumstances.
While are not formally laid down in any law, some government's talk about the 'reserve powers' their Head of State has on websites and other documents, including New Zealand's which can be found here.
Does the Head of State of Samoa have 'reserve powers'?
In my view, the Head of State of Samoa does not have any 'reserve powers'. This is because there is clear evidence that our forebears who drafted and passed the Constitution at the Constitutional Conventions of 1954 and 1960, purposefully chose not to grant the Head of State any 'reserve powers', and made a deliberate and intentional effort to explicitly spell out the powers of the Head of State in the Constitution.
There is likely to be several primary and secondary sources providing this evidential support. However, the most authoritative insights on Samoa's Constitution come from Lauofo Meti's seminal text Samoa: The Making of the Constitution. There, Meti draws on the words of Tupua Tamasese Mea'ole (the first joint Head of State and joint chairman of the constitutional conventions of 1954 and 1960, with Malietoa Tanumafili II) to remark on page 93:
"While in practice, functions of the office of the Head of State were not governed by fixed rules, it was felt that owing to the absence of a body of which these functions would have sprung, they should be embodied in law. The unwritten conventions would grow over time. Unlike the United States where the President was not only the Chief Executive but also the Head of State, the parliamentary system separated the two positions with the Head of State exercising duties on the advice of the head executive who was the Prime Minister and/or Cabinet. Under that system the Head of State was
not as free to act as wished."
Counsel for HRPP and the Attorney General might dubiously argue that this one sentence ("The unwritten conventions would grow over time") means that the Head of State was entitled to "grow" this "unwritten convention" (another term for 'reserved power') spontaneously with his declaration. However, in my view, it is clear that this should be honestly read as meaning that "unwritten conventions would grow over time" in order to then be able to be put into the Constitution (through the prescribed constitutional amendment process) and "be embodied in law".
This is clear, not only from reading the provision as a whole, but also because the primary concern (that there is an "absence of a body of which these functions would have sprung") has endured and remains today.
Therefore, this work of building this "body" to "grow" unwritten conventions and 'reserve powers" into written constitutional provisions should now be a priority for Samoa moving forward, and it must be done in the same spirit of transparency, fairness and collaboration that guided the Constitutional Conventions of 1954 and 1960.
Another easily accessible and helpful secondary source showing that the Head of State does not have 'reserved powers' comes from Sir Guy Powles, who was the High Commissioner of Samoa from 1949 to 1960, and one of the main facilitators and architects of Samoa's independence. In an address given to the Indian Society of International Law in New Delhi on 11 October 1961, which was later published in the Indian Journal of Political Science (available online here), Powles notes in an excerpt worth quoting at length (at page 190):
"In the provisions relating to the Head of State, the Executive and the Legislature, an attempt has been made to spell out in some considerable detail the various British conventions applicable to the conduct of a Constitutional Head of State.
"For instance, it was not thought wise in a new and comparatively untried parliamentary democracy, to leave unspecified the various circumstances in which the Head of State could or could not act on his own discretion. It is not an easy task to attempt to put into writing the provisions of comparatively unwritten Conventions such as this - a task which was apparently not thought necessary by the Founding Fathers of [India's] Convention, but the course adopted in India has, as is well known, led to certain discussions and perhaps disagreement.
"By the Constitution of Western Samoa, the Head of State is required to act on the advice of Cabinet, the Prime Minister, or the appropriate Minister as the case may be, except as otherwise provided in the Constitution.
"The exceptions are interesting: In the appointment of a Prime Minister, the Head of State is required to select someone who commands the confidence of a majority of the members of the House. This requirement limits his discretion, but he is not specifically enjoined to act upon advice. …
"The Head of State may, in his discretion, summon a meeting of the Executive Council. …. The Head of State may, in his discretion, dissolve the Legislature if the office of Prime Minister becomes vacant and there is no other member of the House likely to command the confidence of a majority..."
In this excerpt above, Powles makes it clear that the Head of State of Samoa does not have 'reserve powers' (he refers to them here as "Unwritten Conventions") because our forebears in making the Constitution were very careful not to give the Head of State such discretionary powers because of Samoa's "new and comparatively untried parliamentary democracy" - reiterating Meti's work above.
Powles also goes on to say that "There is nothing particularly unusual about the above provisions, but it is interesting to see them spelled out in writing".
More critical support comes from the work of James Wightman Davidson, a revered historian and constitutional adviser to matai in the 1940s, who noted in his seminal text Samoa Mo Samoa: The Emergence of the Independent State of Western Samoa, at page 374:
"The issue of a premature dissolution of the Legislative Assembly was covered by a proviso to the same Clause: '... if after the passing of such a motion or after that defeat the Prime Minister so requests, the Head of State may dissolve the Legislative Assembly instead of terminating the appointment of the Prime Minister'.
"The wording of the proviso reflected the committee's continuing fear of an overpowerful executive, in that it gave the Head of State discretion, in such a case, to accept or reject the Prime Minister's advice. The committee hoped by this means to prevent dissolutions engineered by a Prime Minister in order to enhance his own power, while making an early dissolution possible when it was necessary to the maintenance of effective government."
In taking these sources into account, it is remarkable and humbling that more than 60 years later, the great wisdom and foresight of our forebears making the Constitution would prove crucial in helping to prevent the arbitrary and unconstitutional exercise of power by the current Head of State today.
In their wisdom, they decided to not give the Head of State the 'reserved power' to dissolve Parliament and call for a new election when there is a hung parliament (or other related Constitutional crisis) but opted to carefully spell out their discretionary powers in regards to dissolution for new general elections in Article 63 of the Constitution, which Powles paraphrased above. Article 63 states:
"63. Prorogation and dissolution of Legislative Assembly:
(1) The Head of State may at any time, by notice published in the Samoa Gazette, prorogue the Legislative Assembly.
(2) If, at any time, the office of Prime Minister is vacant, the Head of State shall, by notice published in the Samoa Gazette, dissolve the Legislative Assembly as soon as the Head of State is satisfied, acting in his or her discretion, that a reasonable period has elapsed since that office was last vacated and that there is no Member of Parliament likely to command the confidence of a majority of the Members.
(3) The Head of State may at any time, by notice published in the Samoa Gazette, dissolve the Legislative Assembly, if the Head of State is advised by the Prime Minister to do so, but shall not be obliged to act in this respect in accordance with the advice of the Prime Minister unless the Head of State is satisfied, acting in his or her discretion, that, in tendering that advice, the Prime Minister commands the confidence of a majority of the Members of Parliament."
This is very clear and unambiguous wording that only gives the Head of State the power to dissolve parliament (to then call for new elections under section 52 of the Electoral Act 2019) if the office of Prime Minister becomes vacant and there is no other member of the House likely to command the confidence of a majority (per Article 63(2)). Article 63(3) also gives the power of the Head of State to dissolve parliament on the Prime Minister's advice, and they can reject that advice if they feel that the Prime Minister does not have the confidence of a majority of parliament.
It is therefore clear that neither our forebears making the Constitution, nor any subsequent parliaments who had the power to amend the Constitution with a two-thirds majority vote, wanted to extend this great discretionary power of dissolving parliament to the Head of State to situations where there is a hung parliament - or more appropriately, add specific discretionary power to revoke election results that are still being contested and petitioned in court.
In other words, the specific 'reserved power' or "Unwritten Convention" of being able to dissolve parliament when there is a hung parliament, which exists in the United Kingdom (and other states where the Queen is the Head of State), was excluded from the Samoan Constitution, and can't be allowed to be exercised otherwise.
Moreover, the Constitution also does not grant specific discretionary powers to revoke election results that are still being contested and petitioned in court to call for new elections either.
In any case, it is clear from the wording of Article 63 that parliament must first actually exist (in other words, have had election results verified, with no pending cases or petitions, and have been sworn in with the opportunity to have their first sitting) in order to be dissolved by the Head of State, and that it would be impossible for them to activate Article 63(3) when there are election results that are still being contested and petitioned in court - especially before the time period of 45 days given (by Article 52) has passed.
How could HRPP (and possibly the Attorney General) argue in court that the Head of State has 'reserve powers'?
In addition to making a dubious argument misinterpreting the passage from Meti mentioned above, counsel for HRPP (and possibly the Attorney General) is likely to make two further arguments as to why the Head of State of Samoa has 'reserve powers'.
The first argument they can try to make is that the Head of State inherited or gained 'reserve powers' from the British monarch - whereupon Samoa's independence in 1962, the 'reserve powers' from the British monarch (who was the Head of State of New Zealand when New Zealand 'administered' Samoa from 1920 until Samoa's independence in 1962) somehow passed on to them.
Their second potential argument is that regardless of whether the Head of State inherited or gained 'reserved powers' from the British monarch, the Head of State of Samoa has 'reserved powers' because Samoa's legal and political system is based largely on the British Westminster parliamentary system.
Unfortunately, in this opinion piece, I can't outline the number of different reasons why these arguments are weak, unconvincing, and lack support from any relevant law or authority. However, the most important reason is that there is clear evidence that our forebears, in making the Constitution, purposefully did not grant the Head of State any 'reserved powers' and deliberately chose to spell out all their discretionary powers regarding dissolution in certain extreme circumstances in the Constitution.
Why would it be problematic for the Supreme Court to rule that the Head of State does have 'reserve powers'?
Aside from being an egregious violation of the basic principles of constitutional interpretation and the rule of law, in my view, to grant the Head of State 'reserve powers' would be to unapologetically betray the wishes and wisdom of our forebears.
By finding that the Head of State has powers deriving from the British Crown, such a decision would undermine the distinct Indigenous royalty held by the highest titles in Samoa in their own right, and also deny the people of Samoa the opportunity to develop and "grow" 'reserve powers' or "unwritten conventions" into written constitutional provisions "over time" in the uniquely Samoan way envisioned by our forebears.
By extension, I believe this would undermine the independence of Samoa and dishonour the sacrifices of the Mau movement and all Samoans who lived and suffered under New Zealand's colonial rule. In my previous analysis of the legality of the Head of State's declaration, I didn't mention that it could be argued that the Head of State was acting under the authority of any 'reserved powers' because, to be frank, this argument is far-fetched, implausible, disingenuous and more importantly, harmful in seeking to undermine Samoa's independence. Indeed, the Head of State themselves didn't say they were using any 'reserved powers' in their declaration.
In my view, this indicates that they either did not know what 'reserved powers' were at the time they made their declaration, or they knew very well that they did not have such powers, but wanted to try to exercise them anyway. Either way, the Head of State was attempting to exercise power in a way that is arbitrary and contrary to the rule of law
* Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland, he holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.