Samoa wraps up at last

I’m back from holiday, so this week we’ll be having a look at some interesting things that have going on in the last couple of weeks. First up, Samoa’s prolonged constitutional crisis, which came to an end last week after long-serving prime minister Tuila’epa Sa’ilele Malielegaoi finally conceded defeat and vacated his office.

Readers will remember that after the opposition FAST party won a majority, it was forced to conduct its own swearing-in ceremony back in May to try to circumvent Tuila’epa’s obstruction. At the end of June the Supreme Court ruled that this ceremony had no validity, but ordered parliament to meet so as to confirm FAST’s victory, leaving the door open to other remedies if this did not happen.

The head of state, Tuimalealiʻifano Vaʻaletoʻa Eti Sualauvi II, presumably acting on Tuila’epa’s advice, refused to call parliament, ostensibly on the basis that its membership was not yet settled because several election petitions were still outstanding. Meanwhile, petitions that had been dealt with were further eroding the position of Tuila’epa’s’s party, the HRPP.

FAST went back to court, and this time, with its patience evidently exhausted, the Court of Appeal ruled that the 24 May do-it-yourself inauguration was valid, and that FAST’s Fiame Naomi Mata’afa was lawfully the prime minister. The head of state then threw in the towel, and so eventually did Tuila’epa – saying, somewhat improbably, that he looked forward to working with the new government.

Australia, whose record of supporting democracy in the South Pacific could generously be described as feeble, congratulated Fiame, as did other regional powers – including China, previously a supporter of Tuila’epa. But clearly she will have her work cut out in trying to reform what has effectively been a one-party state for decades.

She will also need to be conscious of the fact that as yet she has no real popular mandate. Although it failed to win a majority of seats, the HRPP won a clear majority of the vote in April’s election. Whether that reflects genuine public sentiment is another question (as it often is in one-party states); certainly Tuila’epa and his cronies did not act like people who thought they were riding a groundswell of popular support. But perhaps the coming series of by-elections will throw some light on the matter.

7 thoughts on “Samoa wraps up at last

  1. Re ” do-it-yourself inauguration”… Reminds me of the numerous student union constitutions I’ve seen (granted, probably all cloned from an original at Melbourne Uni in 1921, with some evolutionary divergences) with provisions along the lines of “(1) The Union Secretary must call a referendum/ general meeting to consider a motion upon receipt of a requisition petition signed by at least 500 students. (2) If the Union Secretary fails to do so within 7 days, any Union member may do so instead.”
    I used to think that sort of cover-all-bases T-crossing was specific to student politics, where a lot of very smart and ambitious – but not terribly mature – individuals compete for power by exploiting loopholes in the Con & Regs, with few of their classmates paying any attention. However it does seem to be an issue in “grown-up” [sic] politics too, eg, Trump convincing himself that if Mike Pence refused to count the Electoral votes from Democratic states’ delegations, then no one could count those votes, and a decade or two back, speculation among the more conservative monarchists that if the Archbishop of Canterbury declined to crown Charles (then PDA’ing shamelessly with Camilla after Diana’s death) as Monarch, the latter could only remain Prince of Wales (and Regent, I suppose) indefinitely.
    Really, what these sort of “ministerial” (in the older and the American sense, not the modern Westminster sense) clauses really intend is better worded like: “(1) X shall be done. (2) Official Y has the duty to do X, and the right to clarify details as to how and when s/he does it. (2) If Y refuses or neglects to do X by the deadline, Y is personally liable for misfeasance in office, and Y’s understudy (or, if none, some qualified intervenor designated by the highest court) shall carry out X instead.”

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    1. Yes, it’s definitely wise for provisions like that to provide for a default execution method, or to give the courts scope to devise one. My favorite is the Triennial Act of 1641 in England, which provided that the king had to call a new parliament every 3 years, and that if he failed to act then the Lord Chancellor was required to issue the writs under the great seal himself, and if he failed to act then the peers should do so under their own personal seals, and that failing that the sheriffs should proceed to conduct elections anyway as if there had been writs, and failing that the electors should meet in the usual way and hold the election themselves! Unfortunately it was repealed at the Restoration, allowing Charles II to do without a parliament for the last 4 years of his reign.

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      1. That seems consistent with the reasoning of monarchists/ conservatives in UK and (to a lesser degree) Australia: that you don’t need any entrenched Constitution at all (UK) or a very bare-bones one full of loopholes is a sufficiently “strong” constitution (Australia) because as long as you have the Monarchy, the King or Queen will call shenanigans and intervene if the politicians try to stick chewing gum in the machinery. A polity might feel it needs to resort to either (a) super-detailed entrenched laws, and/or (b) sweeping remedial powers for the judiciary,* if it lacks the Crown’s reserve powers as a safeguard, but these two are very much a distant second-best. (See: Quadrant since circa 1996, and most publications by the Samuel Griffith Society).
        * The irony is that one of the most detailed, “plug every possible loophole” constitutions on the planet is that of PNG, a monarchy (albeit the Crown has very few reserve powers, but Papua New Guineas do love Her Majesty personally!) and one of the most imaginative judiciaries as regards ‘wide remedial powers to deal with unforeseen constitutional problems” is that of Canada, a monarchy (neither India nor Ireland has yet reached the point of asking its supreme court to declare what constitutional conventions political actors are supposed to adhere to).

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    2. It’s a mistake to think that it’s _possible_ to plug all the holes, no matter how thorough, how precise, how specific, how explicit, or how imaginative the wording is. You can write a rule saying that if X doesn’t do it, then Y must do it, but what if Y doesn’t do it? You can write a rule saying that the court shall appoint somebody to do it, but what if the judges of the court don’t appoint somebody to do it? You can write a rule saying that it is a crime if X does not do something, but what if X doesn’t do it and then the prosecutor doesn’t bring charges? You can write a rule saying that if the prosecutor doesn’t bring charges then the judges can, but what if the judges don’t?

      You can write a constitution that says explicitly that there is no power to suspend any provisions of the constitution under any circumstances, and that all provisions continue to operate in all circumstances, no matter what anybody says, but what if the military stages a coup and announces that all provisions of the constitution are suspended, including the anti-suspension provisions?

      I bet that provision about any member of the union being able to call a general meeting wasn’t effective.

      Incidentally, that about the coronation is rubbish. It’s isn’t coronation that makes a King, or Queen. Elizabeth II became Queen at the death of George VI in 1952, but wasn’t crowned until 1953. Edward VIII became King at the death of George V in 1936, and remained King until his own abdication, despite never being crowned.

      More to the point, there may be some theory according to which Charles II became King when Charles I was beheaded, but he didn’t become King in practice until the Restoration in 1660. Also, if there had been a law in the seventeenth century which said explicitly that there was no legal power by which the King could be put on trial (which was the case argued by Charles I himself), there’s no reason to think it would have been effective in stopping either the trial or the execution.

      Nobody writes laws saying ‘If the people are unhappy enough, there shall be a revolution’, but revolutions happen when the people are unhappy enough. Would the people of Samoa have risen up and acted to force a change of government? I have no idea, and we’ll never know now, but it’s within the bounds of historical experience.

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  2. I agree with J-D (and Aristotle) about not being able to foresee and plug every loophole. That said, there are often really obvious elephants in the room that should be dealt with. Commentators have pointed out for years that the US Constitution is drafted in a way that allows a Vice-President to chair the Senate during his or her own impeachment trial, or the House Speaker to indefinitely delay the confirmation of a new Vice-President (“We need to thoroughly investigate these fresh allegations that the President’s nominee smoked dope in high school…”) in ful awareness that the Speaker is next in line to succeed to the Presidency as long as the veepship stays vacant.
    Moreover, rather than trying to plug every contingency PNG-style (as Mark V Tushnet has noted, the 1994 and 1996 South African Constitutions also exhibit a similar drafting style), a lot can be done by a few brief rules of interpretation, eg as proposed above that “Officeholder X must do Y” is to be construed as “Y must be done by somebody and X is the somebody who is to blame if it isn’t done”, not as “If X is prepared to tough out a contempt penalty in prison – or even simply to wear political embarrassment – then X can prevent Y from ever being done (or simply being judicially deemed to be done) at all”. (Cf the already well-established judicial canon that, where a public official breaches a legal duty, this does not necessarily invalidate what they have done if this would work hardship on innocent third parties).
    Whether stipulated in an Acts Interpretation Act or developed by the courts, such rules can save a lot of trouble and also remove an incentive for bad actors to try Bjelking the written rules.
    J-D is also right that it’s succession not coronation that makes the Monarch (“the king is dead, long live the Queen! is meant to ensure unbroken continuity on the Throne). I heard the “Archbishop should refuse” theory from some very crusty old monarchists who were borderline cranks – they may have simply meant it would embarrass Charles III, like Trump’s trouble finding singers to perform at his inauguration.

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    1. I agree with you that wording makes a difference, and that it should be improved where possible. I’m still dubious about the value of the particular kind of proposal you’re making.

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