IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER:	of Articles 2 and 4 of the Constitution

AND:

IN THE MATTER:	of section 105 of the Electoral Act 1963

BETWEEN:

LE TAGALOA PITA, 
Matai of Sili
First Plaintiff

AND:

TUPUANAI AVAIOI IMOASINA, 
Matai of Vailele
Second Plaintiff

AND:

FEO NEMAIA ESAU, 
Matai of Samauga.
Third Plaintiff

AND:

THE SAMOA PARTY,
 a duly registered political party under section 15C of the Electoral Act 1963
Fourth Plaintiff

AND:

THE ATTORNEY GENERAL
sued in respect of the State of Samoa
Defendant

Counsels:	P.J. Andrews for plaintiffs
Ms R. Wendt for defendant

Hearing Date:	20/11/07
Conclusions:	20/11/07

JUDGMENT BY JUSTICE VAAI

On the 31st March 2006 a general election was held for the Legislative Assembly of Samoa. The first, second and third plaintiffs were unsuccessful candidates in that general election and it was their desire to challenge the results of the general election on grounds of corrupt and illegal practice by the successful candidates but they were prevented by the proviso to Section 105(1) of the Electoral Act 1963 which reads:

"Provided however that no petition can be filed by a person who polled less than 50% of the total number of votes polled by a person elected or returned at the election."

The plaintiffs seek an order declaring the proviso to Section 105 (1) Electoral Act 1963 to be inconsistent with the Constitution and is therefore void. The Statement of Claim sets out three causes of action upon which the plaintiffs allege the proviso to section 105 is inconsistent with the Constitution. They are briefly:

(i)	Proviso to Section 105 breaches articles 9,15,45,47 and 64 of the Constitution.
(ii)	Proviso to Section 105 is in breach of the Doctrine of Separation of Powers guaranteed by the Constitution.
(iii)	Proviso to Section 105 is in breach of the Constitutional guarantee of a system of representative and responsible government.

In response the defendant moved to strike out the Statement of Claim upon the grounds:

(a)	The Statement of Claim discloses no reasonable or genuine cause of action.
(b)	The Supreme Court has already ruled that the proviso to section 105 (1) Electoral Act 1963 is not inconsistent with article 15 (1) of the Constitution.
(c)	The plaintiffs are not entitled to the relief they are seeking.
(d)	The plaintiffs’ claim does not comply with rule 11 Supreme Court (Civil Procedure) Rules 1980.
(e)	The proceedings have been brought for an improper purpose.

Preliminary Issue

The defendant contends that to allow the plaintiffs to proceed with their statement of claim tantamounts to inviting them through the back door to challenge the results of the General Elections held in March 2006. Only the Election Court has jurisdiction to adjudicate and inquire into allegations of corrupt and illegal practices committed during the general election and this court accordingly lacks jurisdiction to entertain the plaintiff’s claim. 

The argument is plainly misconceived and must fail. All that is pursued by the plaintiffs is to declare the proviso to section 105 (1) Electoral Act 1963 as inconsistent with the Constitution and is therefore void.

If a declaratory order is necessary to secure to the plaintiffs the enjoyment of any of the rights conferred under the Constitution, then the Supreme Court ipso facto has jurisdiction to make a declaratory order. Article 4 of the Constitution extends to the Supreme Court adequate powers to enforce the rights conferred and to secure enjoyment of fundamental rights. 

The plaintiffs are not pursuing the enforcement of rights guaranteed by the Constitution. They are seeking orders to declare the proviso to section 105 Electoral Act 1963 as inconsistent with the Constitution in that it impedes their right of access to the Court of law and is therefore void under article 2 (2);

Or is inconsistent with constitutional guarantee of the doctrine of separation of powers and is therefore void under article 2 (2); 

Or is inconsistent with constitutional guarantee of a system of representative and responsible government and is therefore void under article 2 (2). 

The constitution is Supreme. Although Parliament, itself a creature of the Constitution, has full legislative powers, it is, pursuant to article 43 always subject to the provisions of the Constitution. Defendant’s counsel’s submissions that Parliament is Supreme is not totally correct. The Constitution places upon this Court some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirement. See Sua Rimoni Ah Chong v Legislative Assembly of Samoa [1996] WSCA 2.

Strike Out Principles

It is common ground that the strike out principles are well settled.

(a)	the factual allegations in the statement of claim in support of the claim are assumed to be true.
(b)	The jurisdiction to strike out for disclosing no reasonable cause of action should be sparingly exercised.
(c)	The jurisdiction will only be exercised where it is very plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed.

The existence of public interest also makes it desirable that the proceedings be heard. The same view was expressed by Salmon J in Hughes v Cooper (unreported) 5/7/96 CP 62/95 High Court of New Zealand, Auckland).

No Cause of Action disclosed and proceedings are frivolous and vexations

The plaintiffs contended that there were widespread corrupt practices at the last General Election. They also claim there were high level corrupt practices committed by senior Cabinet Ministers during the currency of a caretaker government. A number of incidents are detailed in the Statement of Claim with particular reference to the decision of the Electoral Court in Su’a Rimoni Ah Chong v Mulitalo Siafausa 16/8/2006 (unreported) in which the court found that serious corrupt practices have been committed by senior Cabinet Ministers, using public funds and during the currency of a caretaker government. It is further contended that the corrupt practices unveiled in the Su’a Rimoni case (above) were also committed by the same Cabinet Ministers or other Cabinet Ministers in other electorates. The same electoral court in Posala v Su’a (16/8/06) said:

" Many nations experience problems with an open electoral process. … Each nation usually develops a method or system of dealing with and eradicating the abuses which history has shown can be associated with elections. … It is important that society, when faced with (and more importantly before being faced with) corruption or other criminal offences or abuses associated with the electoral process takes steps to eradicate those abuses."

Indeed the court has over many years condemned the culture of corruption during the periods leading up to general elections in the past. In Fepuleai Semi v Leilua Manuao 12/8/82 Misc 6005, Callander ACJ said:

"It appears that some politicians believe the only way to achieve elections is to employ such techniques. But if all politicians refrained from so doing each would be on equal footing and they would achieve parliamentary benches on merit not on the basis of underhand influence."

Ryan CJ in Fa’amatuainu Mailei v Moananu Salale 1980 – 1993 WSLR 414 at 415 also said:

"There are lessons to be learnt from the evidence that we have heard in this case and they are:

1.	That it is not acceptable practice to attempt to influence a person’s vote by the provision of goods and money.

2.	….

3.	That the welfare of Western Samoa demands that free democratic elections be held.

And in Leota T. Siaki v Leota I.Ale 12/5/88 Misc 8404 Maxwell CJ remarked:

"The manner in which people justify accepting bribes at election time never ceases to amuse me and I can only reiterate my remarks on a previous election petition. In a supposedly Christian, community, merely by changing the wording of a bribe its receipt becomes acceptable. If this is the type of morality that pervades a community then its effect on young people and future generations gives me cause for reflections." 

Section 105 (1) of the Electoral Act 1963 as amended by section 31 of the Electoral Amendment Act 1995 provides:

Section 31 Election Petitions: Section 105 of the principal act is herby amended by omitting the whole of subsection (1) and in substitution therefore the following:

Section 105 Election Petitions: (1) An election petition may be presented to the Supreme Court by one or more of the following persons: - 

(a)	A person claiming to have had a right to be elected or returned at the election. 

(b)	A person alleging himself to have been a candidate at the election.

Provided however that no petition can be filed by a person who polled less than 50% of the total number of votes by a person elected or returned at the election.

Before the 1995 amendment, Section 105 (1) read: 

An election petition may be presented to the Supreme Court by one or more of the following persons:

(a)	a person who voted or had a right to vote at the election.
(b)	A person claiming to have a right to be elected or returned at the election.
(c)	A person alleging himself to have been a candidate at the election.

In addition to the proviso, the 1995 amendment also removed the right of an elector or voter to file an election petition.

The rationale for enacting the proviso to section 105 (1) was considered by Young J in Sia v Peteru [1998] WSSC 37 (31/8/98):

"Prior to the amendment all electors and all candidates could bring a petition, potentially numbering in the hundreds. With the amending provisions all voters and all candidates with less than 50% of the successful candidates votes are eliminated. … . Thus the purpose of the new legislation is self evident, the reduction in the numbers of election petitions by reducing those who can petition."

Counsel for defendant contended that even if all the allegations of corrupt practices alleged in the statement of claim were true, there is no nexus between the pleaded facts and the remedy sought. In developing the same argument it was proposed that Parliament which enacted the proviso should be the proper defendant, not the government.

The argument by the plaintiffs is very simple. They claim that the proviso to section 105 (1) violates provisions of the Constitution and as a result of the violations brought about by the proviso to section 105 (1) they have been prevented from exposing through the court by way of election petitions the dishonest and corrupt incumbents and some of the successful candidates in the last general elections. 

They are not concerned with the rationale behind the enactment of the proviso to section 105 (1) which they claim is an arbitrary and capricious restriction on their unimpeded rights of access to the courts and undermine the constitutional role of the judiciary.

As active players or participants in the general elections in a supposedly democratic society they should not be denied fair adjudicative process. They were discriminated against. A law maker who achieves a parliamentary bench by corrupt and underhand dealings is a not a truly elected one and should be held accountable rather than being given a statutory shield and immunity by means of the proviso to section 105 (1). There is considerable force and sense in the proposition that the Legislative should not usurp the judicial function of controlling and determining access to justice particularly in cases involving alleged abuses of power by members of the executive as it tantamounts to an attack on the independence of the judiciary.

The allegations are serious, by no account can they be treated as insignificant and therefore cannot be labelled as frivolous and vexations. The allegations are not levelled at the Attorney General personally; there is no hint of attack against his personal integrity or the integrity of his office; he is merely named as the appropriate institutional defendant (as he was also named in: Mulitalo v Attorney General [2001] WSCA 8 and Pita v Attorney General [1995] WSCA 6). It is probably the same explanation and circumstances in which his office accepted the service of the Statement of Claim and summons and which led to the lodging of this application to strike out the plaintiffs’ statement of claim. Perhaps the appropriate consideration is whether the allegations are relevant in determining the constitutionality of the proviso.

If the plaintiffs’ application for a declaratory judgment to void the proviso to section 105 (1) succeeds the effect of the declaration will not upset the result of the 2006 General Elections. It will not unseat any sitting member. Submissions by defendant’s counsel are totally misdirected when she said at paragraph 64 of her written submissions:

" … the reason why these proceedings have been brought is to embarrass and reduce public confidence in the government by associating members of parliament who are part of the HRPP with corrupt practices. Furthermore the proceedings are a "back door" attempt to get around the limitations on the hearing of election petitions …. . It would be contrary to the interests of stable government to allow the proceedings to continue."

The declaration sought is simply to declare the impugned proviso void so that for the year 2011 general elections the remedies available under the Electoral Act to challenge corrupt practices are readily available to any aggrieved candidate.

The contention that the allegations do not disclose a cause of action and are frivolous and vexations must fail and are dismissed. For the same reasons the defendant’s argument that the proceeds were instituted for improper motive must also be refused. 

Ruling of the Court in Sia v Peteru

One of the possible effects of the proviso was commented on by Young J in Sia v Peteru (supra).

"The proviso could have the effect of rewarding the wealthy and dishonest successful candidate. That is if enough electors could be corrupted by a successful candidate then the successful could ensure there will be no unsuccessful candidate receiving 50% or more of the vote. This is a legitimate concern."

Young then went on to say that the concern can be adequately met by the availability of criminal prosecution for electoral corruption to challenge the successful candidate.
But, as counsel for the plaintiffs’ correctly submitted, the only method to question an election or declaration of election is through an election petition filed pursuant to the provisions of the Electoral Act 1963. It is the Electoral Court which presides over the petition and forward the report to the Speaker at the conclusion of the election petition hearing.

The police prosecute. I take judicial notice of the fact there has never been any criminal prosecutions for electoral offences since the 2001 General Elections. Normally, police prosecutions followed from the findings of the Electoral Court. This was normally the practice before the 2001 general elections. When a private prosecution alleging corrupt practice after the 2001 general election was instituted it was promptly stayed by the Attorney General.

Unlike election petitions which ought to be filed within 7 days after public notifications of the results a criminal prosecution can be commenced within 6 months. And whereas there is no right of appeal against the decision of the Electoral Court, a conviction in a criminal prosecution can be appealed against causing delay contrary to the spirit of the Electoral Act 1963 which encompass the importance of the principle of finality and certainty in the outcome of parliamentary elections.

The ruling in Sia v Peteru was confined to the issue of whether the proviso to section 105 (1) breached article 15 (1) of the Constitution which confers equality before the law and equal protection under the law.

Plaintiffs’ counsel argued that Young J applied the wrong test in deciding whether Article 15 (1) had been breached. Counsel relied on the test applied by the New Zealand Supreme Court in Hansen v. R [2007] NZSC 7. And even if Young J was correct, counsel submitted that the concerns expressed by Young J namely that the proviso to section 105 (1): "could have the effect of rewarding the wealthy and dishonest successful candidate" should now be tested against the allegations in the Statement of Claim and the findings of the Electoral Court in Su’a Rimoni v Mulitalo Siafausa (supra). Whether the decision of Young J in Sia v Peteru (supra) represents the accurate state of the law in the light of the judgments in Hansen v R (supra) and in R v Oakes (1990) 3 SCR 1303 should be fully argued at the substantive hearing when counsel for the defendant can comment on those two rulings.

Non-Compliance with Supreme Court (Civil Procedure) Rules

Counsel for the defendant argued that the plaintiffs have failed to comply with rules 11 and 12 and is therefore an abuse. But rule 202 also provides that non-compliance shall not render the proceedings void. The plaintiffs have been ordered to file a motion to comply with the rules and with section 4 of the Declaratory Judgments Act 1988.

Conclusion

The application to strike out is dismissed.

JUSTICE VAAI