HEAD OF STATE POWERS TO SWEAR IN MEMBERS OF THE LEGISLATIVE ASSEMBLY

PHOTO: Attorney General outside of the Courthouse

RESS RELEASE: Office of the Attorney General- 24th May 2021.

This Press Release is issued to clarify the powers of the Head of State in terms of swearing the Speaker and Members of Parliament; and the powers of the caretaker Speaker of the Legislative Assembly.

The Speaker before he or she assumes the duties of the Speaker must be sworn in by the Head of State: (see Article 49 (2) of the Constitution). The Speaker then swears in the Member of Parliament: (see Article 61 of the Constitution). The Council of Deputies may take over the role of Head of State but only in the circumstances where the Head of State is incapacitated or absent (not in the Samoa): (see Article 23 (2) of the Constitution). However, the Chief Justice may take over the duties of the Council of Deputies, if no Council of Deputies has been elected: (see proviso to Article 25 (1) of the Constitution.) Those circumstances have not occurred. The Head of State is neither incapacitated nor absent; and there is an elected Council Deputies, present.

In terms of the Speaker of the Legislative Assembly and his powers after dissolution of Parliament, he retains all his powers as Speaker until a new Speaker is sworn in: (see section 30 of the Legislative Assembly Powers and Privileges Ordinance 1960 (the ‘Ordinance’). The actions of the Speaker, in the exercise of his or her power, are not subject to the jurisdiction of the Court: (see section 31 of the Ordinance.) Those powers include the authority to grant, or refuse, entry to the Chambers or Precinct of the Legislative Assembly: (see sections 14 and 15 of the Ordinance). “Chamber” is defined to mean ‘a place in which the Legislative Assembly sits in session for the transaction of business.’ Whereas “Precinct” refers to accommodation for strangers, members of the public, media- to name a few; and the entire building in which the Chamber of the Assembly: (see section 2 of the Ordinance. Also see Standing Order 191(1)(e)). Any attempts by any other persons to conduct a swearing in of any Member of the Legislative Assembly is unlawful, and unconstitutional.