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Mulitalo v Attorney General of Samoa [2001] WSSC 33 (9 February 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Constitution of the Independent State of Samoa

AND

IN THE MATTER of an application to the Supreme Court pursuant to Article 4 of the Constitution.

AND

IN THE MATTER of an application to the Supreme Court pursuant to the Declaratory Judgements Act 1988 as certain provisions of the Electoral Act 1963.

BETWEEN

MANO’O LUTENA MULITALO, TAUILILI LEAITAUA LOGOTAEAO PEMERIKA,
TIATIA LELAULU LEOTA, FAUMUINA MAPESONE TAIMALE, LAGI NAOTALA
TILIALO TOFILAU and TAPUAI TOESE AH SAM
Applicants

AND

ATTORNEY-GENERAL of Samoa
Respondent

Counsel: AJ Pereira for applicants
Attorney-General BP Heather-Latu,
K Kwan and R Schuster for respondent

Hearing: 31 January and 2 February 2001-02-07
Judgment: 9 February 2001

JUDGMENT OF SAPOLU CJ

The five applicants are matais. Each one of them is from a different territorial constituency. All of them have been living overseas. They returned to Samoa at different times more than twelve months ago. Each one with the intention to run in his territorial constituency in the forthcoming general election which is now set to be held on 2 March 2001. The reason for each one of the applicants returning to Samoa more than twelve months ago, was because of a new residential qualification introduced in 1995 to the Electoral Act 1963 for any person who may run as a candidate in a parliamentary election. This new residential qualification is in section 5(3) of the Electoral Act 1963. That provision says that a person will be disqualified from being a candidate at a parliamentary election if he has not resided in Samoa for a period of not less than twelve months at the time his nomination is lodged with the Chief Returning Officer.

Since the return of the applicants to Samoa, Parliament, acting on the report of a parliamentary select review committee, has twice amended the Electoral Act 1963, to change the residential qualification for a person to qualify as a candidate in a parliamentary election. The first change was made by the Electoral Amendment Act 2000 (No. 8) which came into force on 6 July 2000, the date on which the Act was assented to by the Head of State. That amendment increased the residential qualification period from twelve months to three years. That three period was to be calculated on the basis that an intending candidate should live in Samoa for at least ten months of each year for a consecutive three year period ending on nomination day for a parliamentary election. The ten months period for each year would not include any period of temporary absence from Samoa because of official duties. Subsequently, Parliament again amended the residential qualification by the Electoral Amendment Act 2000 (No. 10) which came into force on 7 November 2000, the date on which that Act was assented to by the Head of State. The effect of that amendment was to reduce the period of ten months for which an intending candidate should live in Samoa in each year to 240 days. As a consequence of the first amendment, the applicants are disqualified from being candidates at the forthcoming general election. The effect of the second amendment is to make it more impossible for the applicants to become candidates in that general election.

The applicants feel they have been unfairly treated under the changes made to the residential qualification for someone to become a candidate at a parliamentary election. They say they had arranged their affairs to return and live in Samoa for not less than twelve months prior to the forthcoming general election, on the basis of the then existing twelve months residential qualification. They, therefore, filed a motion for a declaration that the Electoral Amendment Act 2000 (No. 8) and the Electoral Amendment Act 2000 (No. 10) should be held not to apply to the forthcoming general election, but to the general election after that, which presumably will be held in 2006. During the course of the argument on that motion, I indicated to counsel for the applicants, that the declaration sought on behalf of the applicants, was tantamount to asking the Court to amend the commencement dates of the two amendment Acts enacted by Parliament. But the Court does not have the power to amend an Act of Parliament. That is for Parliament, itself, to do, if it sees fit to do so. Counsel for the applicants then sought leave to amend the applicants motion. Leave was granted and proceedings were adjourned to 2 February, for the applicants to file and serve on the respondent an amended motion.

The applicants amended motion seeks two different declarations. It will be helpful to set out in full the declarations which have been sought. Counsel for the applicants moved:

"1. For a declaration pursuant to Article 4 of the Constitution and the Declaratory Judgments Act 1988 that the provisions of section 3 of the Electoral Amendment Act 2000 (No. 8) and of sections 2 and 3 of the Electoral Amendment Act 2000 (No. 10) are inconsistent with the applicants rights under Articles 14 and 15 and the law making powers of Parliament under Article 43 of the Constitution and are therefore void.

"2. And for a further declaration that section 44 of the Electoral Act 1963 is inconsistent with the provisions of Article 64 of the Constitution and is therefore void."

In addition to their amended motion, an amended statement of claim was also filed on behalf of the applicants seeking the same declarations as sought in their amended motion. In response, the Attorney-General, who has been cited as respondent in these proceedings, filed a motion to strike out the amended statement of claim as disclosing no cause of action. I will deal first with applicants motion for declarations and then with the respondent's motion to strike out the applicants amended statement of claim.

Motion for declarations

For convenience and clarity, I will deal first with the first part of the applicants motion for declarations and then with the second part. In dealing with the first part of the motion, I will deal first with the alleged breach of Article 14 and then with the alleged breach of Article 15. Both these Articles are contained in Part II of the Constitution.

As the submissions by counsel for the applicants unfolded, it became very clear that the real thrust of those submissions was directed at the alleged breach of Article 15 rather than at the alleged breach of Article 14 or any other provision of the Constitution. Article 14 was only touched upon very briefly and not in any detail. The submission by counsel for the applicants in relation to Article 14 was that the applicants have incurred great financial losses, waste of time, stress and ridicule in their expensive preparations to travel to Samoa for the 2001 general election. As a consequence of the change to the residential qualification for candidates to run at a parliamentary election made by the Electoral Amendment Act 2000 (No. 8) and further amended by the Electoral Amendment Act 2000 (No. 10), the applicants will now be forced to bear those losses without compensation contrary to Article 14. Article 14(1), which is the relevant provision, provides:

"Rights regarding property - (1) No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily, except under the law which, of itself or when read with any other law:

(a) Requires the payment within a reasonable time of adequate compensation therefore; and

(b) Gives to any person claiming that compensation a right of access, for the determination of his interest in the property and the amount of compensation, to the Supreme Court; and

(c) Gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a court of original jurisdiction."

The onus of satisfying the Court that there has been a breach of Article 14 or any other provision of the Constitution, must lie on the shoulders of the party alleging such a breach. However, the applicants were unable to demonstrate in what manner Article 14 has been breached in this case. It was not shown whether the financial losses, wasted, time, stress and ridicule the applicants claim to have suffered can be classified as a "right over or interest in property". It was also not shown how those matters, especially wasted time, stress and ridicule, could have been "taken possession of” or "acquired compulsorily" by the State under the provisions of the Electoral Amendment Act 2000 (No. 8) or the Electoral Amendment Act 2000 (No. 10). One would have thought that such matters as wasted time, stress and ridicule do not ordinarily come within the meaning of a "right over or interest in property". It is also very difficult to see how one person can take possession of or acquire wasted time, stress or ridicule in a compulsory manner from another person. Normally, those are matters no one would like to have and tries to avoid. In respect of the financial losses, the applicants claim to have incurred in their preparations to travel to Samoa to prepare for the 2001 general election, it was again not shown how the State through the Electoral Amendment Act 2000 (No. 8) and the Electoral Amendment Act 2000 (No. 10) could have taken possession of or acquired the moneys spent by the applicants in a compulsory manner.

As I have said, the onus lies on the party who claims that Article 14 has been breached, to show that such a breach has actually occurred. The applicants have failed to show such a breach. In fact the alleged breach of Article 14 was not really pursued with any strength. The motion seeking a declaration that the Electoral Amendment Acts 2000 (No. 8) and (No. 10) have breached Article 14 and therefore constitutional, is accordingly dismissed.

I turn now to the alleged breach of Article 15 which forms the main part of the submissions by counsel for the applicants. The gist of the submissions by counsel for the applicants is that the qualifications for being a candidate at a parliamentary election are dealt with under Article 44 which is contained in Part V of the Constitution, more specifically Article 44(3). But Article 44(3) is subject to Article 15 because of its commencing words, "subject to the provisions of this Constitution". Article 15 provides for freedom from any discriminatory legislation or executive or administrative action of the State on certain grounds. One of these grounds is political opinion. It will be helpful to set out the relevant constitutional provisions.

Article 44(3) provides:

"Subject to the provisions of this Constitution, the mode of electing members of the Legislative Assembly, the terms and conditions of their membership, the qualifications of electors, and the manner in which the roll for each territorial constituency and the individual voters' roll shall be established and kept shall be "prescribed by law."

Article 15, as far as relevant, then provides:

"(1) All persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.

(3) Nothing in this Article shall -

(a) prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law; or

(b) Prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons."

Counsel for the applicants then further proceeded to argue that the Electoral Amendment Act 2000 (No. 8) which increased the residential qualification for candidates at a parliamentary election from twelve months to three years and the Electoral Amendment act (No. 10) which further amended that residential qualification were enacted pursuant to Article 44(3). But because Article 44(3) is subject to Article 15, the two amending legislations must therefore also be subject to Article 15. It was then further argued that the two amending legislations are in consistent with Article 15(2) as they discriminate against the applicants on the ground of political opinion contrary to Article 15(2). It follows that the amending legislations must be unconstitutional and void by reason of Article 2(2), which provides that any law which is inconsistent with the Constitution shall be void to the extent of that inconsistency.

I do not propose to deal with all the numerous details of the argument by counsel for the applicants. I propose to adhere to the gist of that argument as there is a real element of urgency for delivering a judgment in this case and there are serious time constraints on the Court. This does not, however, mean that I have not subjected all the details of the argument for the applicants to careful consideration.

It is clear that the whole argument for the applicants in relation to Article 15 is based on the assumption that the qualifications for being a candidate at a parliamentary election are prescribed under the Electoral Act 1963 pursuant to Article 44(3). Whether that assumption is true or false, I will deal with that question later in my judgment. For present purpose, I will proceed on the basis that the assumption is true as that is the basis upon which the argument for the applicants proceeded. I must say the argument for the applicant is confronted with formidable difficulties of which counsel for the applicant was fully aware, right from the outset of these proceedings.

The first of these difficulties is that the position contended for by counsel for the applicants that Article 44(3) is subject to Article 15, insofar as parliamentary electoral qualifications are concerned, has already been dealt with and rejected by the Court of Appeal in Attorney-General v Saipaia Olomalu and Others [1980-1993] WSLR 41 and Le Tagaloa Pita and Others v Attorney-General (1995) (C.A.7/95; unreported judgment delivered on 18 December 1995). In the Saipaia case, the Court of Appeal when dealing with the relationship between Article 15 and Article 44 said at p.60:

"When the Constitution is considered as a whole, we do not think that the question is left in any true obscurity. Parliamentary electoral qualifications are a special subject, outside the purview of Article 15 and not dealt with at all in Part II of the Constitution. Such provisions as the Constitution makes on the subject are to be found in Part V_."

As already pointed out, Article 44 is contained in Part V of the Constitution. Then at p. 61 of its judgment, the Court of Appeal said:

"We have already given our reasons for holding that Article 15 does not govern parliamentary electoral rights. Accordingly we see no conflict between it and Article 44(3)."

In the Le Tagaloa case, which was concerned with a challenge to the constitutionality of the universal suffrage introduced by the Electoral Amendment Act 1990, the Court of Appeal reaffirmed its previous position that Article 15 does not apply to parliamentary electoral qualifications prescribed in the Electoral Act 1963 pursuant to Article 44(3), by citing the same passage that I have already cited from p. 60 of its own judgment in the Saipaia case. Thus the Saipaia and the Le Tagaloa cases provide a complete answer to the present argument for the applicants.

However, counsel for the applicants sought to distinguish Saipaia and Le Tagaloa on the basis of their ratio decidendi so that what was said by the Court of Appeal in its judgments in those two cases should not be held to be applicable to the present case. Counsel for the applicant submitted that the ratio decidendi of Saipaia is that Saipaia had no right to complain against the then existing suffrage as he had at that time not yet been prescribed any right to vote under any law made pursuant to Article 44(3). I do not accept this submission as a valid basis for distinguishing Saipaia from this case. In the first place, it is erroneous to say that Saipaia had not been prescribed any right to vote under any law made pursuant to Article 44(3). The name Saipaia is a paramount matai title from the village of Satuimalufilufi in the Aana Alofi No. 3 territorial constituency. He must therefore have had a right to vote under the then provisions of the Electoral Act 1963 relating to matai suffrage, if he had entered his name on the roll of electors for his constituency before the close of that roll. So there was a law in existence at the time under which he could have voted in the 1982 general election, provided he complied with the requirements for registration. Secondly, I do not accept that the ratio of Saipaia is as stated by counsel for the applicants. What that case was about was whether the then sections 16 and 19 of the Electoral Act 1963 which provided respectively for the qualifications of electors (matai voters) and voters (individual voters) were unconstitutional or not. The Court of Appeal held that the then sections 16 and 19 of the Electoral Act 1963 were constitutional and allowed the appeal by the Attorney-General from the decision of the Supreme Court which held to the contrary. That is the main ratio decidendi of Saipaia. Having said that, I do, of course realise that a judgment can have more than one ratio decidendi. But having studied the judgment of the Court of Appeal in Saipaia, I am satisfied that the ratio decidendi contended for by counsel for the applicants is not one of the ratio decidendi of that case. The attempt to distinguish Saipaia from the present case therefore fails.

In respect of the Le Tagaloa case, counsel for the applicant sought to distinguish that case from the present case by saying that the ratio decidendi of Le Tagaloa was that the universal suffrage introduced by the Electoral Amendment Act 1990 was not unconstitutional. I agree with counsel that is the main ratio decidendi of Le Tagaloa. Where I disagree with counsel for the applicants is when he went on to say that it should follow that Article 15 should therefore apply to parliamentary electoral qualifications prescribed pursuant to Article 44(3). The reason is that the argument now put forward by counsel for the applicants, is substantially the same as the argument he put forward on behalf of the Samoa Society for Civil Liberties in the Le Tagaloa case. And the Court of Appeal did not accept that argument, but reaffirmed what it said in the Saipaia case that Article 15 does not apply to parliamentary electoral qualifications prescribed pursuant to Article 44(3). The attempt to distinguish Le Tagaloa from the present case must, therefore, also fail.

Counsel for the applicants then went further in his submissions and challenged the correctness of certain conclusions reached by the Court of Appeal on the law in Saipaia. But as as counsel properly accepted, when pointed out by the Court, this Court is not in a position to rule that what was said by the Court of Appeal in Saipaia is wrong in law because of the doctrine of precedent. It is, therefore, not necessary to deal with the arguments directed to the correctness or otherwise of the conclusions reached by the Court of Appeal on the law in Saipaia. Suffice to say that this Court is in full agreement with the Court of Appeal. In fairness to counsel for the applicant, I wish to point out again that he was fully aware of the formidable difficulties confronted by his submissions for the applicants. He has made a courageous attempt to distinguish Saipaia and Le Tagaloa, and even challenged the correctness of some of the conclusions on the law reached by the Court of Appeal in Saipaia, but I am of the clear view the attempt cannot succeed.

The next difficulty with the argument for the applicants is to be found in Articles 111(1), 83 and 15 itself. Article 111(1), as far as relevant, provides:

"'Service of Samoa' means service in any capacity in Samoa; and includes service in any of the capacities named in subclauses (a) to (k) inclusive of Article 83."

A Member of Parliament is named in Article 83(e). Reading Article 111(1) together with Article 83(a) to (k), it would be clear that the office of Member of Parliament is one of the capacities within the expression "Service of Samoa". And Article 15(3) clearly provides that nothing in that Article shall prevent the prescription of qualifications for any of the capacities within the service of Samoa. This must mean that nothing in Article 15 shall apply to the prescription of qualifications for being a Member of Parliament or a candidate at a parliamentary election. This negates the foundation of the whole argument for the applicants that Article 15 should apply to the prescription of qualifications to become a Member of Parliament or for being a candidate at a parliamentary election. I accept the submission by the Attorney-General that Article 15(3) excludes the application of Article 15 to qualifications for candidates at a parliamentary election.

Now I have been dealing with the argument for the applicants on the assumption that the qualifications for being a candidate at a parliamentary election are prescribed under the Electoral Act 1963 pursuant to Article 44(3), for that is the basis upon which the argument for the applicants proceeded. However, the Attorney-General, who has been cited as respondent in these proceedings, has pointed out, that the Electoral Amendment Act 2000 (no. 8) and the Electoral Amendment Act 2000 (No. 10) were not enacted pursuant to Article 44(3), but pursuant to Article 45. Thus the argument for the applicants has been misdirected at Article 44 which is not the relevant constitutional provision. Article 45 provides:

"QUALIFICATIONS FOR MEMBERSHIP - (1) Any person shall be qualified to be "elected as a Member of Parliament who -

(a) Is a citizen of Samoa; and

(b) Is not disqualified under the provisions of this Constitution or of any Act

(2) If any person other than a person qualified under the provisions of clause (1) is elected as a Member of Parliament, the election of that person shall be void."

Clearly, Article 45 deals specifically with the subject of qualifications "to be elected as a Member of Parliament." This clearly suggests that the qualifications to become a candidate at a parliamentary election to elect a Member of Parliament are governed under Article 45. Article 44(3) refers to the "terms and conditions" of membership in the Legislative Assembly. Whether the words "terms and conditions" extend to the qualifications to be a candidate at a parliamentary election was not argued in this case. But I am inclined to the view that they do not. The reason is that if the qualifications for a candidate at an election are already covered under Article 44(3), then it will be unnecessary to deal with the same subject again under Article 45. Article 45 becomes superfluous or redundant. Not only that, the words "terms and conditions" used in Article 44(3) are general words, whereas Article 45 is quite specific about what it is concerned with, namely, qualifications to be elected as a Member of Parliament.

If one turns to section 5 of the Electoral Act 1963 which deals with the qualifications to become a candidate for election as a Member of Parliament, section 5(1) makes specific reference to Article 45. Sections 5(3) and 5(4) then provide for the residential qualification for a candidate for election. This must be what the Attorney-General meant when she pointed out, that the Electoral Amendment Act 2000 (No. 8) and the Electoral Amendment Act 2000 (No. 10) were not enacted pursuant to Article 44(3) but pursuant to Article 45. For the reasons already given, I have decided to accept the position as pointed out by the Attorney-General.

It follows that the question of qualifications to become a candidate at a parliamentary election is not subject to Article 15 as contended for the applicants. There is nothing in Article 45 to show that it is to be subject to Article 15. The matter is put beyond any doubt by Article 15 itself by providing in Article 15(3) that nothing in Article 15 shall prevent the prescription of qualifications for the service of Samoa which includes service in the capacity of a Member of Parliament by virtue of Article 111(1) and Article 83(e).

The motion seeking a declaration that the Electoral Amendment Act 2000 (No. 8) and the Electoral Amendment Act 2000 (No. 10) are inconsistent with Article 15 and therefore must be unconstitutional and void, is also dismissed.

It was repeatedly mentioned during the course of the argument for the applicants, that the Electoral Amendment Acts 2000 (No. 8) and (No. 10) are unfair to the applicants, as the applicants had returned to live in Samoa on the basis of the then twelve months residential qualification for a candidate for election, with the intention of qualifying to run as candidates in the 2001 general election. However, while here in Samoa, Parliament changed the law so that the residential qualification becomes three years. As a consequence, none of the applicants is now qualified to run as a candidate in the forthcoming general election. The Court, of course, understands how the applicants feel about this matter. However, the unfairness of any legislation is not a specified ground on which the Court can declare any legislation as unconstitutional. Article 2(2) is clear that only when a law is inconsistent with the Constitution, can it be declared as unconstitutional and void.

I turn now to the second part of the applicants motion which is for a declaration that section 44 of the Electoral Act 1963 is inconsistent with the provisions of Article 64 of the Constitution and should therefore be held to be void. Article 64 provides that there should be a general election at such time within three months after every dissolution of the Legislative Assembly as the Head of State appoints by notice in the Samoa Gazette. Section 44 of the Electoral Act 1963 is concerned with the issue of a warrant by the Head of State directing the Chief Electoral Officer to issue writs for a general election. On the very brief submissions by counsel for the applicants on this part of the motion, I am not satisfied that section 44 is inconsistent with Article 64.

In any event, even if I were convinced by counsel for the appellant that section 44 is inconsistent with Article 64 and is therefore unconstitutional, I would still, in the exercise of the Court's discretion refuse the declaration sought. A declaration is a discretionary remedy. The applicants have had more than ample time to challenge the constitutionality of section 44. To leave it to the last minute to bring this motion to declare section 44 as unconstitutional and thereby disrupting the general election to be held on 2 March and causing serious inconvenience to all concerned, is totally unacceptable. This part of the motion is also dismissed.

Motion to strike out amended statement of claim

The Attorney-General has filed a motion to strike out the applicants amended statement of claim on the ground that it discloses no cause of action against the respondent. After perusing the amended statement of claim, I am satisfied that it does not disclose any cause of action whatever.

A statement of claim is supposed to plead matters of fact to support a cause of action. The amended statement of claim is overloaded with matters of law such as legal opinions and legal arguments with very little fact. One gets the clear impression that the amended statement of claim is actually another written legal argument. But that is not what a statement of claim is supposed to do. As a consequence, no facts have been pleaded to disclose a cause of action and no cause of action has been demonstrated either in tort, contract, restitution or whatever.

The amended statement of claim is therefore struck out.

Conclusions

All in all then, the motion for declarations is dismissed. The amended statement of claim is struck out.

Costs

Bearing in mind that the original motion for declarations by the applicants was also unsuccessful and the original statement of claim was also struck out, I award costs of $150 against each of the applicants.

CHIEF JUSTICE

Solicitors
AJ Pereira for applicants Attorney-General's Office for respondent