Parliament decision suspending HRPP members unconstitutional


The Supreme Court has found that the two-year suspension of Tuilaepa Dr Sailele Malielegaoi and Lealailepule Rimoni Aiafi is unconstitutional. They are also to be paid for the duration of their suspension. 

The ruling was handed down by Chief Justice Satiu Simativa Perese, declaring the suspension “breaches article 44(1) of the Constitution and the framework of Samoa’s Constitution of responsible and representative government.”

Last October, Parliament voted to uphold the Privileges and Ethics Committee’s recommendations to suspend senior HRPP members for 24 months. 

That decision was rendered in a secret ballot vote of 29 MPs supporting the recommendation by the Committee while 19 voted against it; this is for contempt of Parliament after they were found guilty of contempt of court. 

According to the Chief Justice, the unprecedented duration of the long suspension is a material breach of article 44(1) and Samoa’s system of representative and responsible government enshrined in the Constitution because it denies the Parliament of representation from these two constituencies and the people of those constituencies with their voice in Parliament. 

There is in their respectful view no question that the actions of the First and Second Applicants condemned in the Contempt decision, and by Parliament by these suspensions were reprehensible. That much has been made clear by both the Courts and Parliament. 

However, the Court is being asked to determine whether these long unprecedented suspensions are consistent with the Constitution and Samoa’s representative and responsible government system. On that footing, they say that the two year suspension is inconsistent and therefore void from the outset.

“Does, this mean that a member can never be suspended? Not, each case turns on its merits. 

“However, suspensions must not deny Parliament of effective representation from electoral constituencies, and or the voice of the people of those electoral constituencies. 

“Such denial is also a denial of the democratic system of representative and responsible government established in the Constitution. 

“In other words, intramural decisions concerning the penalty for contempt of Parliament are limited by the requirements of the Constitution.” 

Furthermore, Standing Orders 187(iii) – 187(v) prohibit suspended MPs from questioning any Parliamentary matter, making any public announcements “through any medium which aim to denigrate the Legislative Assembly, Speaker or Committees” and extend to prohibiting suspended MPs from writing to the Speaker or any MP regarding any Parliamentary matter. 

“The standing orders extend well beyond the walls of Parliament and are all-encompassing, prohibiting the questioning of “any Parliamentary matter” by suspended MPs. 

“These standing orders significantly restrict the freedom of speech and expression of suspended MPs on matters of governance and politics, the freedom enjoyed by the rest of the population and which forms an indispensable part of representative government. 

“Taken to its logical conclusion, the standing orders would extend, for example, to prohibit suspended MPs from questioning their own suspensions from Parliament in any forum to writing to the Speaker or other MPs on that very question. 

“The standing orders extend well beyond what Mr Keith submitted addresses “plainly disruptive if a Member, having been suspended, continues to intervene or attempt to intervene in or undermine parliamentary proceedings and decisions.” 

The standing orders infringe Article 13(1) of the Constitution and do not constitute “reasonable restrictions on the exercise of the right” of freedom of speech and expression “for protecting the privileges of the Legislative Assembly”.” 

The Chief Justice concluded that the Legislative Assembly’s suspension of Tuilaepa and Leala for two years breaches Article 44(1) of the Constitution and the framework of Samoa’s Constitution of responsible and representative government, and the suspensions are therefore void. 

In light of the decision, the Applicants are entitled to be paid their remuneration and the allowances that were withheld on account of the terms of the suspensions. 

The MPs are also to file for costs within 14 days and the Respondents to response within a further 14 days.