Opinion: FAST-led govt did not carry out a 'coup'

By Fuimaono Dylan Asafo *

Opinion - In my view, the first meeting of the new parliament on the afternoon of Monday 24 May 2021, which included the swearing-in of Fiame Naomi Mataafa as the Prime Minister of Samoa (along with the swearing-in of the Speaker, Cabinet Ministers, and elected members) was constitutional in light of the extraordinary circumstances Samoa was facing.

In other words, the FAST-led government did not carry out a 'coup', but rather they acted in a way which was necessary to prevent one.

It is best to first address the claims made by the Office of the Attorney-General alleging that the swearing-in ceremony was "unconstitutional".

In the first of their two press releases on the night of Monday 24 May 2021, the Office of the Attorney-General stated: "The public is advised that the FAST held ceremony swearing in elected Members on 24th May 2021, in and around 5 pm at the footsteps of Parliament building at Mulinuu is unconstitutional" and that "he so-called officials who conducted the unlawful FAST swearing-in ceremony are not the relevant authorised officials and therefore have no legal authority to conduct such a ceremony".

Their second press release stated that "ny attempts by any other persons to conduct a swearing-in of any Member of the Legislative Assembly is unlawful, and unconstitutional." This press release also lists several Constitutional provisions that require the Head of State's presence at the swearing-in ceremony, and how the Council of Deputies may take on their roles in their absence, and if the Council of Deputies is absent, then the Chief Justice may take on their roles. The statement goes on to list the powers of the former Speaker under the Legislative Assembly Powers and Privileges Ordinance 1960.

In my view, the Office of the Attorney General's claims are not only incorrect but untrustworthy and disingenuous, for two reasons:

• 1. The AG incorrectly places the onus on the FAST party to ensure the fulfilment of the Head of State's constitutional duties

Firstly, the Office of the Attorney-General has incorrectly placed the onus (in other words burden) on the FAST party to ensure that the Head of State (and their other potential substitutes in their absence if necessary) to attend the first meeting of the new parliament in order fulfil their respective duties under the Constitution and any relevant Standing Orders.

However, in my view, it is clear from the Constitution that the onus was squarely on the Head of State (and their other potential substitutes if needed) to attend the first meeting of the new parliament to fulfil their respective duties in the swearing-in ceremony.

This onus comes from the fact that it was known by all relevant parties, including the Head of State, that the first meeting of the new parliament on Monday 24 May 2021 was:

(1) Required by Article 52 the Constitution;

(2) Called for by the Head of State themselves on Thursday 20 May 2021 per their constitutional duty under Article 52; and

(3) Confirmed by the Supreme Court on Sunday 23 May 2021, after the Head of State attempted to unlawfully suspend the first meeting on the night of Sunday 22 May 2021.

In seeking to uphold Article 52 of the Constitution and respect the Supreme Court's ruling, the FAST party were present at parliament and were fully prepared for the meeting to take place at 9.30am as scheduled.

In contrast, the Head of State (as well as the former Speaker, the Clerk of the Legislative Assembly, and elected HRPP MPs) wilfully refused to be present for the meeting - despite being fully aware of the scheduled date, time and place of the meeting and the fact that the meeting was required by the Constitution (as affirmed by the Supreme Court ruling the day before).

Therefore, by refusing to attend the first meeting of the new parliament, it was the Head of State who first and foremost breached the relevant Constitutional procedures and any relevant Standing Orders. It is a bizarre argument to blame or fault the new FAST-led government for the violations and shortcomings of the Head of State and the former Speaker, and the Clerk of the Legislative Assembly who deliberately failed to fulfil their respective legal duties to prevent Article 52 of the Constitution from being upheld.

• 2. The AG fails to recognise the unconstitutional actions of the Head of State (and others) and the extraordinary repercussions of their actions on the Constitution and rule of law

By incorrectly placing the onus on FAST, the Office of the Attorney-General have deliberately failed to recognise that it was the Head of State and the former Speaker who first and foremost committed unconstitutional acts (or omissions), not FAST. This means that they have failed to recognise the extraordinary repercussions of these unconstitutional actions on the Constitution and rule of law.

In my view, these repercussions on the Constitution and rule of law provided a number of extenuating and extraordinary circumstances which ultimately makes FAST's convening of the first meeting of the new parliament lawful and constitutional. In other words, I believe that it was necessary for the new parliament to be sworn in, despite the Head of State's unconstitutional actions, to restore political stability by upholding the Constitution and rule of law.

This rationale was provided by the new Prime Minister, Fiame Naomi Mataafa Fiame, who stated that the convening of the first meeting of the new parliament was done out of the "principle of necessity" due to the "military-like restrictions that had barred proceedings inside the House".

The "principle of necessity", which is also referred to as the 'doctrine of necessity', is what is known as a 'common-law doctrine' - meaning it is a part of the body of law that is made by judges with their decisions, as opposed to legislation and the Constitution that can be made and amended by parliament.

The doctrine first articulated by English jurist Henry de Bracton, who stated 'that which is otherwise not lawful is made lawful by necessity. Another influential English jurist, William Blackstone, also stated that the 'doctrine of necessity could arise where a person is faced with a choice between two evils chooses the 'least pernicious' option.

In constitutional law, the doctrine of necessity can be used by judges to look at actions that may seem unconstitutional at first, but then declare them constitutional on the basis that these actions have been taken to restore order or attain power on the pretext of stability.

The doctrine of necessity has since been applied by judges in several Commonwealth countries when they have faced constitutional crises, such as Pakistan in 1954 and Grenada in 1985. While the doctrine has been applied differently across these Commonwealth jurisdictions, all applications have been premised on the reality that the action(s) in question were necessary for political stability and peace in a nation burdened with constitutional crises.

I believe that convening the first meeting of the new parliament (despite the Head of State's unconstitutional actions) is justified by the doctrine of necessity and that this should be confirmed and declared by the Supreme Court as soon as practically possible.

This is on the grounds that the FAST party convened the first meeting of the new parliament to block the unconstitutional attempts by the Head of State and former Speaker to not only stop the peaceful transition of power but undermine the Constitution and the rule of law.

It was no coincidence that the Head of State attempted to suspend the opening of parliament on a Saturday night, only for the former Prime Minister and Office of the Attorney-General to immediately express outrage that there was a court ruling on a Sunday (and that normal litigation processes were not followed) after the FAST party had to seek an emergency ruling for the Constitution to be upheld.

It was also no coincidence that the former Prime Minister and Office of the Attorney General immediately expressed outrage again in claiming that the FAST party have acted unconstitutionally by holding the first meeting of parliament - even when it was the Head of State, the former Speaker and the Clerk of the Legislative Assembly who wilfully refused to attend the meeting and even resorted to locking the Chambers of the Legislative Assembly to prevent the swearing-in from taking place.

Most of the time, allegations of government corruption can be easily dismissed when there is an apparent lack of evidence to substantiate them. However, in my view, the timing and nature of the actions of the Head of State, Office of the Attorney General and former Prime Minister provide undeniable evidence of their plan to keep the former HRPP-led government in power at all costs and by any means necessary. Furthermore, the apparent outrage from the former government and the Office of the Attorney-General that the first meeting of the new parliament went ahead without the Head of State (and the former Speaker and Clerk of the Legislative Assembly) should be taken as an unintentional admission of their failed plan to stop the FAST-led government from coming into power.

It should also be noted that in the absence of the Head of State and former Speaker and the Clerk of the Legislative Assembly - the FAST party (with the necessary assistance of their legal counsel) made every effort to follow the Constitution and Standing Orders as closely as possible. This respect for the Constitution demonstrated that even though Constitutional procedures could not be followed fully (due solely to the unconstitutional and unlawful actions of the Head of State and others), the FAST party's ultimate objective was to provide Samoa with political stability in these extraordinary circumstances by upholding the Constitution and the rule of law in the fairest way possible.

When seen and understood in this light, the first meeting of parliament is rendered constitutional by the 'doctrine of necessity'. I believe that this should be declared by the Supreme Court as soon as practically possible for this constitutional law doctrine to formally be a part of Samoa's common law in this specific context.

What should happen now?

At this point, it is clear the former Prime Minister, the Head of State and Office of the Attorney General (among others) remain willing to do whatever it takes for the HRRP to be in power. This may include the Head of State deciding to recognise the new FAST-led government as legitimate, only to then misuse and misinterpret their powers under Article 63 of the Constitution to prorogue and/or dissolve parliament and call for a new election.

The risk of this (or another similarly egregious move) taking place means that the new FAST-led government should initiate the process to remove the Head of State for "misbehaviour" under Article 21 of the Constitution as soon as practically possible, and put plans in place to elect a new Head of State by following the process outlined in Article 18.

In my view, it is also critical that leaders of other nations (particularly other Pacific Island states, Aotearoa New Zealand, Australia and the United States) be called upon to follow the lead of the Federated States of Micronesia, and congratulate and recognise the legitimacy of the new FAST-led government.

I believe that these statements of formal congratulations should be given in recognition of the reality that the former government is actively seeking to violate the rule of law and other democratic principles that they also hold dear as democratic nations. I believe that these statements will leave the former Prime Minister (and all others who are committed to their plan to hold on to power) with no other choice but to concede and allow the new government to govern in peace.

*Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland, he holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.