Asafo: A critique of the Samoan Court of Appeal's decision - an unfortunate case of judicial overreach

By Fuimaono Dylan Asafo*

Opinion - law lecturer Dylan Asafo argues the Samoan Court of Appeal has made an incorrect decision in making its ruling about how the law protects the proportion of women in the Samoan parliament.

Yesterday, the Court of Appeal (CA) ruled that Article 44(1A) of the Constitution requires that six women should sit in Parliament. With all due respect, I believe that that the CA's decision was incorrect.

This is on the grounds that the CA have overreached their powers by encroaching on the law-making powers of parliament and have made an unpragmatic (or impractical) decision that has now prolonged and further complicated Samoa's constitutional crisis.

While the CA's decision is final and can't be appealed, I believe that it's still important that this decision be critiqued because the CA's decision has set a dangerous precedent for future judges interpreting the Constitution - a precedent which essentially signals to them that they can disregard the clear and unequivocal words of the Constitution and insert their own words as they see fit.

To be clear, nothing in this critique should be taken as my disapproval or dissatisfaction with the fact that more women are now required to sit in parliament. It goes without saying that having only six women in a parliament with 51 seats is shameful for any country and is representative of a deeply entrenched gender inequity problem in Samoa that must be addressed.

However, I believe that it's important for all Samoans to understand both the dangerous precedent that's been set by the CA and the wider implications of their decision on Samoa's constitutional crisis.

Accordingly, I set out three reasons why I believe that that the CA's decision was incorrect below:

1. The CA encroached on the law-making powers of parliament by ignoring the explicit wording of Article 44 of the Constitution

As stated in the Supreme Court's judgement, the court's function is to "give primary attention to the words used, and the Court does not have the power and ability to go beyond the clear and unequivocal words used". This function was made clear in three previous landmark by the Court of Appeal cases on constitutional interpretation: Attorney-General v Saipaia Olomalu, Mulitalo v Attorney General, and Jackson & Ors v Attorney General.

This statement of the court's function recognises the fundamental importance of the doctrine of separation of powers in any democracy. The doctrine of separation of powers follows that it's only for the democratically elected parliament to make and amend the law (including the Constitution) and the courts, as the unelected independent body, should only interpret and apply the law as parliament intended and not make or amend the law themselves.

In this case, the "clear and unequivocal words" of Article 44(1A)(a) that the Court of Appeal had to apply are: "...women Members of the Legislative Assembly shall: (a) consist of a minimum of 10 percent of the Members of the Legislative Assembly specified under clause (1) which for the avoidance of doubt is presently 5".

Therefore, the CA's decision to ignore the explicit wording of Article 44(1A) demonstrates that they consciously chose not to take the correct approach to interpret the Constitution that has been laid down in key landmark cases.

In the CA's judgement, they state that "there is a principled way to resolve the two ideas which are presently before the court...guided by well-established principles of interpretation from earlier rulings of this Court". In my view, the CA's approach to constitutional interpretation was not at all "principled", but bizarre and dubious in a way that hopefully won't be adopted by any courts after them. This dubious approach was supported and encouraged by the arguments submitted by counsel for the appellants, that in my view, were insincere and unduly motivated by political gain.

In adopting this dubious approach, the CA deliberately ignored the great (if not determinative) significance of the passing of the Constitution Amendment Act 2019. This 2019 Act amended Article 44 to increase the number of seats in parliament from 49 to 51 specifically for the "2021 general elections"

If they gave proper consideration to the impact of the 2019 Act, the CA would've recognised that if parliament wanted to increase the minimum number of seats for women to six, they would have changed "five" to "six" while amending Article 44 for the "2021 general elections" when they had the chance. However, parliament did not do this, and the courts are not authorised to do this for them.

Parliament's choice to leave "five" in Article 44(1A)(a) untouched while amending other parts of the Article 44 specifically for the should be taken as a clear indication that they intended the minimum number of women to remain "five" and not "six" for the "2021 general elections". Again, it should be emphasised that under the doctrine of the separation of powers, only parliament can amend the Constitution as the democratically elected body - not the unelected judiciary.

In an attempt to reason or justify their disregard for the clear and unambiguous wording of the Constitution, the CA looked to the overall purpose of Article 44(1A) and said that: "We consider that Article 44 1A [of the constitution] is ambiguous as to the ideas it promotes and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa."

However, the CA knew, or should've known, that it's not for them, as a body of unelected apolitical justices, to consider political matters like what "best promotes the establishment of human rights practice in Samoa". It's only for parliament to do so as the democratically elected body who have been chosen by the people of Samoa to debate and legislate on these political issues. This particular separation of powers is in place for a very good reason -parliament is the only body that has the capabilities, time and resources to consider submissions from people in Samoa, (including experts and groups specialising in the relevant issues) in order to make the best laws possible that represent the will of the people. In contrast, the courts don't have the capabilities, time and resources to fully consider matters of great importance before making or amending the law (including the Constitution). More fundamentally, judges and justices of the courts haven't been elected by the people or appointed by elected officials based on their political views or sensibilities as MPs have. In fact, they have the constitutional mandate to act apolitically and objectively when interpreting and applying the law.

Therefore, I believe that the CA's decision sets a dangerous precedent for other courts to possibly follow, where they have signalled to other judges and justices who'll interpret the Constitution that they're permitted to disregard clear and unequivocal words of the Constitution and insert their own words as they see fit.

2. The CA have encroached on the law-making powers of parliament by creating their own process for Article 44(1A)

Another major part of the CA's decision is their finding that a sixth woman can only be added only after all petitions and potential by-elections have been completed.

For reasons similar to the ones I've given above, I argue that the CA's creation of a process for Article 44(1A) was an overreach of their powers because it's only for parliament to design and explicitly set out this process in the Constitution or any relevant legislation (i.e. the Electoral Act).

This was rightfully respected by Justice Tuatagaloa and Justice Vaai in the Supreme Court, who observed in their joint judgement that parliament needed to provide:

"Some clarity as to the 'process' to be followed when Article 44(1A) is activated. There is no process provided in regards to a woman candidate appointed pursuant to Article 44(1A). Section 84 of the Electoral Act refers to successful candidates or elected candidates. Section 2 of the Electoral Act defines the word "election" means the election of a Member in a general election or by-election to represent a constituency. The woman candidate coming in through Article 44(1A) is (in our view) not "elected"

Here, Justice Tuatagaloa and Justice Vaai acknowledge that parliament (in 2013 and 2019) unfortunately didn't provide a clear process for the activation of Article 44(1A). However, both justices chose not to go beyond their constitutional powers to engineer and create this process themselves. Instead, they appreciated that it's only appropriate for parliament to create this process lawfully and transparently after they have taken the time to fully consider the merits of different options and ideas.

Unfortunately, the CA didn't show such respect for parliament and the separation of powers and decided to engineer and create their own process for Article 44(1A) in less than three days.

In my view, the CA should've simply interpreted the clear and unambiguous words of Article 44(1A) as mentioned above, and stated that it was therefore unnecessary for them to discuss the process as this was a matter for parliament to determine.

While the CA attempted to design their process with some regard to the practical realities surrounding election petitions, counter petitions and potential by-elections - it was still wrong for them to create this process in the fraught context of a dispute in which arguments from parties, namely the appellants, are motivated by political gain.

Therefore, it wouldn't be surprising if the rushed and unprincipled manner in which the CA created their process provides even more confusion, ambiguity, conflict and controversy in the near or distant future. In any case, it's hoped that the new parliament takes the time needed to fix the problems with Article 44(1A), before designing a new process following its activation, fairly and democratically.

3. The CA's process for Article 44 is unpragmatic for prolonging and further complicating Samoa's constitutional crisis

Aside from the issues with the CA's problematic interpretation of the Constitution, the CA's decision should also be criticised as being unpragmatic (or in other words, impractical) for having the effect of prolonging and further complicating Samoa's constitutional crisis.

The CA's finding that a sixth woman can only be added after all petitions and potential by-elections have been completed (and there are still only five women MPs), means that the addition of another woman MP could be several months away. This is due to the sheer volume of petitions that the courts are due to consider next week, a reality the CA were no doubt aware of.

While the courts are not necessarily required to be influenced by what is pragmatic and best for the general well-being and smooth running of the country, it's hoped that they at least don't go out of their way to make decisions that would create further uncertainty and delay in a country suffering from an already drawn out constitutional crisis.

Of course, there's already a degree of uncertainty around which party will hold the majority of seats due to the unprecedented number of petitions that have been filed and are yet to be heard,

However, adding the potential activation of Article 44(1A) to the mix doesn't help things at all. This has already been seen by how both the leaders of the FAST party and the HRPP have interpreted the CA's decision to mean that their parties hold the majority in judgement and should be able to govern until the election petitions and any potential by-elections are completed.

In my view, had the CA interpreted Article 44(1A) in the correct, honest and principled manner (to find that the minimum number of seats for women is "five" and not six) this wouldn't be a legitimate dispute as the leader of the HRPP wouldn't have any real reason to believe that a sixth woman MP could be added as a 52nd seat in parliament in their favour. FAST would then have a clearer path for transitioning into the government - a path which I believe they legitimately have because in my view, their convening of parliament was legitimate and constitutional in the extraordinary circumstances Samoa was facing. NOTE: Although the constitutionality of FAST's swearing-in on 24 May 2021 is another matter due to be heard by the courts on Friday, I have argued in a previous opinion piece that their swearing-in was constitutional and that the courts should declare this when they do rule on this case (most likely sometime next week).

Another practical problem the CA could've (and should've) avoided was the risk of creating an even-numbered hung parliament of 52, with each party having 26 seats. When Article 44(1A) was introduced in 2013, the parliament of that day (and any day up to the 2021 general election) didn't foresee that its activation could lead to an even-numbered hung parliament which could create major issues in the future. For example, a hung 52 seated parliament (with 26 seats for both parties) could lead the Head of State to use their powers under Article 63 to dissolve parliament and call for a new general election on the grounds that the office of the Prime Minister has vacant beyond a "reasonable period" of time (Article 63(2)) or that the Prime Minister does not command the majority in parliament (Article 63(3)). With due respect, it can only be hoped that this wasn't the underlying motivation behind the CA's decision.

In any case, there's an urgent need for a government to come into power to govern Samoa. This is not only because Samoa's in a global pandemic, but also because the government should've already set and announced its annual budget by this time in the year. Therefore, the CA's decision shows an unfortunate lack of pragmatism for which the people of Samoa will continue to bear the costs.

A case of 'judicial activism'?

Some might celebrate and defend the CA's decision as a case of 'judicial activism' because it was apparently decided in the interests of gender equality and human rights in Samoa.

'Judicial activism' is a term that refers to when judges go outside their apolitical and objective roles to become 'activists' in the courtroom pursuing their political agendas. They do this by interpreting and applying laws in a way that is obviously incorrect and contrary to established legal principles because they believe that the outcome would be morally unacceptable and unjust according to their political beliefs if they didn't.

One key instance of 'judicial activism' in New Zealand, was in the 1985 case of Finnigan v New Zealand Rugby Football. In this case, the Court of Appeal of NZ disregarded well established legal principles in order to prevent the All Blacks from touring South Africa during the nation's apartheid era. It's well known now that the justices hearing this case were influenced not only by anti-apartheid protests outside the courtroom but by their own values and beliefs against South Africa's racist system.

Of course, anyone committed to anti-racism (and the fundamental human right to freedom from discrimination) wouldn't question or fault the Court of Appeal of NZ for being judicial activists in the Finnigan case. However, in my view, the CA's decision shouldn't be seen or understood as a legitimate and justified case of 'judicial activism' like that in Finnigan.

Some may disagree and argue that the need to have six women (rather than five) in parliament is a critically urgent and important human rights and social justice issue that's analogous or comparable to the moral dilemma the NZ justices faced in the Finnigan case.

However, if anything, this litigation has shown that Article 44(1A) is a deeply flawed mechanism for ensuring the representation of women in parliament and upholding Samoa's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In my view, instead of further complicating a deeply flawed mechanism during a constitutional crisis, the CA should've upheld the observations of Justice Tuatagaloa and Justice Vaai in the Supreme Court to allow parliament (and the people of Samoa whose voices they represent) to improve Samoa's deeply entrenched gender inequity issue in the fair and transparent manner that is expected of a democratic state.

In terms of what a new gender-based quota system for Samoa would look like, it's clear that the new parliament will need to pay closer attention to the laws and experiences of other democratic countries that have introduced similar gender-based quota laws, such as Finland, Sweden, Norway, and Denmark who have since achieved an average of 40 percent women in their parliaments.

It's also important that the new parliament tackle deeply entrenched gender inequity in Samoan politics more broadly. A 2015 report on 'Political Representation and Women's Empowerment in Samoa' by the Centre for Samoan Studies at the National University of Samoa (NUS) found that Article 44(1A) would "not address what this research found to be the core issue: the barriers to women's equal participation in local government" and that Samoa does not have gender parity laws and candidate pre-selection mechanisms that other countries like France, Timor-Leste, Senegal and Rwanda have introduced to increase the number of women in their parliaments. Similarly, Kiki Matire has commented that while Article 44(1A) would increase the representation of women in Samoa's parliament, "much more needs to be done to address the cultural and tangible obstacles to women as political leaders".

* 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.