Legal expert says Two-year suspension “unconstitutional”
Members of Parliament, Opposition Leader Tuilaepa Sailele Malielegaoi and Human Rights Protection Party (H.R.P.P.) Secretary Lealailepule Rimoni Aiafi.
Photos: Parliament of Samoa
The two-year suspension for Members of Parliament (M.P.s) Tuilaepa Sailele Malielegaoi and Lealailepule Rimoni Aiafi is unconstitutional, says a Samoan law professor based at the University of Auckland.
Fuimaono Dylan Asafo, who teaches law at the university’s Faculty of Law, shared his views on the two-year suspension for the two M.P.s in response to questions from EyeSpy Radio News.
The two-year punishment is an “unconstitutional misuse of Parliamentary power that should be of great concern to all Samoans” because “it sets an undemocratic precedent,” Fuimaono said.
The two-year suspension period for Opposition leader Tuilaepa and the H.R.P.P. Secretary Lealailepule is unconstitutional because it is excessive and undermines the protections for Samoa’s democracy enshrined in the Constitution, he explained.
“In my view, the suspension of Tuilaepa and Lealailepule for two years is unconstitutional,” Fuimaono said.
Parliament’s Standing Orders provide Parliament with the power to suspend an M.P.
for an unlimited period of time when that M.P. has been found guilty of contempt of Parliament, he explained.
“Specifically, Standing Order 187(4) states: “Where any member is guilty of contempt of the Assembly, the Assembly may, by resolution, reprimand such member or suspend him from the service of the Assembly for such period as it may determine”,” said Fuimaono.
“However, in my view, the two-year period is unconstitutional because it is excessive and undermines the protections for Samoa’s democracy enshrined in Samoa’s Constitution.”
The two-year period is “excessive” because it removes the M.P.s for Lepa and Faleata No. 3 for a “very significant” part of their five-year term, he said.
“I believe the two-year period is excessive because it effectively vacates an M.P.’s seat for a very significant part of the five-year parliamentary term. Specifically, it removes an MP for 40 percent of the time for which they have been elected to represent their electorate,” Fuimaono said.
“In my view, such a significant period of suspension could not have been reasonably contemplated by Parliament when it passed Standing Order 187(4). The wording in Standing Order 187(4) is clearly a result of poor drafting and a failure to consider how the unlimited suspension power could potentially be misused.”
The two-year punishment undermines the protections for Samoa’s democracy prescribed by the Constitution because it prevents the M.P.s from serving their constituents.
Furthermore, it undermines the constitutional rights of their constituents as electors that are safeguarded by Articles 42 and 43.
The two-year punishment also undermines Article 44 which guarantees that the Legislative Assembly consists of one member elected for each of the 51 electoral constituencies, the law professor said.
“In terms of how the two-year suspension period undermines the numerous protections for Samoa’s democracy in the Constitution, I believe the two-year suspension period undermines the constitutional rights of an elected MP to serve their constituents,” said Fuimaono.
“It also undermines their constituents’ constitutional rights as electors, such as those protected in Articles 42 and 43, which provide for the establishment of a democratically elected Parliament to make laws for Samoa. It also arguably undermines Article 44 which guarantees that the Assembly shall consist of one member elected for each of 51 electoral constituencies comprised of villages or sub villages.”
His view is informed by the Supreme Court’s ruling of 30 August, 2022.
The decision states that an “indeterminate” suspension period can and should be scrutinised by the Courts for potentially violating the Constitution.
“My view is informed by the Supreme Court’s decision of 30 August 2022. In this decision, the Court indicated that an “indeterminate” suspension period (meaning a suspension period that is indefinite, imprecise and uncertain) can and should be scrutinised by the Courts for potentially violating the Constitution for the reasons mentioned above,” Fuimaono said.
The two-year suspension is not indeterminate, however, it profoundly impairs the ability of the M.P.s to represent the interests of their electors, he said.
Now that their two seats in the Parliament House are vacant, their constituents are “vulnerable” because there is no one to represent them in Parliamentary proceedings.
The two-year punishment impacts the people who Tuilaepa and Lealailepule represent more than it does the M.P.s who were found in contempt.
“Although the two-year suspension period for Tuilaepa and Lealailepule is not indeterminate, I believe the same or similar constitutional concerns apply. This is because their ability to represent the interests of their electors is profoundly impaired in a similar way,” Fuimaono said.
“With a two-year suspension, citizens in the electorate are made vulnerable as they are left without political representation while Parliament continues to enact laws that will still impact them for a significant period of time. In essence, a suspension for two years means that it is the people in the concerned electorates who are being punished for their M.P.s contempt, rather than the M.P. themselves.”
Fuimaono is from the villages of Salani, Satalo, Siumu, Moata’a and Leufisa.
He is a lecturer of law in the Faculty of Law at the University of Auckland in New Zealand.
Fuimaono holds a Master’s of Law degree in Critical Race Studies from Harvard University in Cambridge, Massachusetts, United States of America.
He holds a Master of Laws (First Class Honours) from the University of Auckland
Party loyalties should be set aside at this time, Fuimaono said, and Standing Order 187(4) should be amended in order to uphold protections for Samoa’s democracy.
“Party loyalties and political tensions aside, this unconstitutional misuse of Parliamentary power should be of great concern to all Samoans as it sets an undemocratic precedent or norm for future Parliaments to follow,” Fuimaono said.
“Moving forward, it is crucial that Standing Order 187(4) be amended to provide a maximum time period for which an MP can be suspended so that constitutional protections for Samoa’s democracy can be upheld.”
Tuilaepa and Lealailepule ran unopposed in the 2021 General Election as did Prime Minister Fiame Naomi Mata’afa.
The three were the only candidates who ran unopposed.
On Tuesday, Parliament voted through secret ballot whether or not to suspend the H.R.P.P. leaders for two years as recommended by the Ethics and Privileges Committee.
Parliament voted 29-19 in favor of placing them on suspension for two years.