Govt. moves to ‘appoint’ Head of State

Prime Minister, Tuilaepa Sa’ilele Malielegaoi, and his ruling government have moved to amend the Constitution yet again.

This time, Tuilaepa, by tabling the Constitution Amendment Bill (No.2) in Parliament yesterday, is looking at changing the process during which the Head of State is elected.

If passed, the Bill will strip the Members of the Legislative Assembly of their power to nominate and vote for the Head of State (H.O.S). Instead, the government of the day will nominate a person to be appointed the Head of State.

In tabling the Bill, Prime Minister Tuilaepa told the House that the government wants to ensure that the “integrity” and "dignity" of the Office of the Head of State is protected.

He said he wants to avoid a situation where at least 49 nominees are brought forward to elect the Head of State. Such a scenario, he said, would take too much time and would erode the "dignity" of the office.

The proposal received mixed reactions from the floor.

Notably, the leader of the Opposition, Palusalue Fa’apo II, strongly opposed it.

And so did members of the Opposition who argued that there was nothing wrong with the current system of electing the Head of State.

Vaisigano No. 2 M.P., Motuopua’a Dr. Aisoli Vaai issued a particularly poignant caution.

“The role of the Head of State is very important to Samoa,” he said.

“We live in a country that believes its foundations are already set in stone. Such a mentality is ingrained in our thinking; we even have songs that remind us every day that such appointments in Samoa are already made (o Samoa ua uma na tofi).

“So I warn you, if we get it wrong, the peace in this country will be disrupted. There will be disasters if we make a mistake here.”

But Tuilaepa downplayed the concerns by the Opposition.

The Act, having passed its second reading after a heated House debate that continued for much of the day, is now in it Committee stage.

It must return to the House within 90 days for its third and final reading before it becomes law.

The Bill’s first purpose is: “To allow the party in Government to nominate a person to be appointed Head of State (instead of the current mechanism of election) by the Legislative Assembly.”

Clause three of the Amendment Bill deals solely with how the Head of State is to come into power.

“Clause 3: amends Article 18 to alter the current process of election of Head of State to appointment by the Legislative Assembly acting on the recommendation of the party in Government,” the Act reads.

In relation to the Constitution of the Independent State of Samoa, the Bill calls for the words “elected” and “election” to be substituted by “appointed” and “appointment” in clause 18 of the Constitution.

“Within 60 days before expiry of the term of appointment of the Head of State or as soon as practicable when there is a vacancy in the office of Head of State, the party or parties in Government shall submit to the Speaker a written Notice recommending the name of only one person to be appointed as Head of State,” the legislation reads.

“The Speaker shall, as soon as possible after receiving the Notice: if the Legislative Assembly is sitting, lay the Notice before the Legislative Assembly to appoint the Head of State.

“Or, if the Legislative Assembly is not sitting fix a date for a sitting of the Legislative Assembly to appoint the Head of State.

“The Speaker shall issue and sign the warrant of appointment of the Head of State.

As the law stands now under the Constitution, clause 18 reads: “The Head of State shall be elected by the Legislative Assembly under the provisions of the First Schedule.”

The First Schedule edicts, that Members of Parliament are involved in the whole process of electing a Head of State.

Currently for a Head of State to be nominated, at least two Members of Parliament must sign the nomination paper in addition to the candidate.

The First Schedule further reads that if only one candidate is nominated, he or she is automatically elected. If there is more than one candidate nominated through due process the sitting HOS or Council of Deputies will appoint a day with one month after the day of nominations for the Legislative Assembly to meet and consider these nominations.

“On the day so appointed for a meeting of the Legislative Assembly, the Assembly shall proceed to an election of the Head of State,” the Constitution reads.

“In the election of the Head of State, the Speaker shall conduct a ballot in which each Member of Parliament present shall cast a vote for one of the candidates nominated for election.

“No candidate shall be elected unless he obtains an absolute majority of the votes of those Members of Parliament present and voting.

“If no candidate obtains an absolute majority of votes in the first ballot, further ballots shall be held to the number of not more than two, in an attempt to find a candidate who can obtain an absolute majority.

“If no candidate obtains an absolute majority after the holding of the third ballot, the candidate with the lowest number of votes in the third ballot shall be eliminated, and a fourth ballot shall be taken.

“If necessary, further ballots shall be held, after the elimination before each of those ballots of the candidate who received the lowest number of votes in the preceding ballot, until one candidate receives an absolute majority.

“When a candidate receives the required majority, the Speaker shall declare him to be duly elected, and the Clerk of the Legislative Assembly shall forthwith issue under his hand a public notice to that effect and cause that notice to be published in the Samoa Gazette.”

It should be noted that under Part XI the Constitution for this Amendment to pass, it must do so by a two-third majority, or 33 Members of Parliament.

If a two third majority cannot be obtained in the House, then the Constitution requires a vote by registered constituents the outcome also of which must be two thirds to pass this Amendment Bill into law.

“Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act,” the section reads.

“If a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total number of Members of Parliament, including vacancies, and if not fewer than 90 days elapse between the second and third readings of that bill."

“Provided that no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44."

“And unless it has been supported by twothirds of the valid votes cast in such a poll.”

The proposed Amendment Bill and the corresponding parts of the constitution are republished in full below.

CONSTITUTION AMENDMENT BILL (No.2) 2014 SAMOA

Explanatory Memorandum Introduction

The purposes of the Bill are: (a) to allow the party in Government to nominate a person to be appointed Head of State (instead of the current mechanism of election) by the Legislative Assembly; (b) to allow the Members of Parliament nominated by the majority party or party in Government to be treated to have been duly elected and endorsed by the Legislative Assembly as Speaker and Deputy Speaker, respectively;

(c) to implement the recommendations of the 2012 Commission of Inquiry into Electoral Matters to change individual voters constituency to two (2) urban constituencies;

(d) to create the position and functions of the Ombudsman under the Constitution, as he now has the function of dealing with human rights breaches, which may connect to the fundamental rights under Part II of the Constitution; and (e) to deal with other minor and consequential amendments.

Clauses:

Clause 1: states that when enacted, the Bill will be called the Constitution Amendment Act (No.2) 2014. It will commence on the date it is assented to by the Head of State.

However, the amendment relating to the changes from individual voters constituency to the two (2) urban constituencies will come into operation during the next general elections.

Clause 2: amends Article 6(4) to change “Deputy Registrar” to “Assistant Registrar”, as a consequence of the Government policy of removing designations of “Deputy Chief Executive Officers” and using the existing designations of “Assistant Chief Executive Officers”.

Clause 3: amends Article 18 to alter the current process of election of Head of State to appointment by the Legislative Assembly acting on the recommendation of the party in Government.

Clause 4: amends Article 19, as a consequence of the amendment to Article 18.

Clause 5: amends Article 25, as a consequence of the amendment to Article 18.

Clause 6: amends Article 44 to change the individual voters roll to urban constituency, as recommended by the 20l2 Commission of Inquiry into Electoral Matters.

Clause 7: amends Article 49 so that the Member of Parliament nominated by the majority party after a general election or the party or parties in Government is treated to have been duly elected and endorsed by the Legislative Assembly as Speaker.

Clause 8: amends Article 50 so that the Member of Parliament nominated by the majority party after a general election or the party or parties in Government is treated to have been duly elected and endorsed by the Legislative Assembly as Deputy Speaker.

Clause 9: inserts a new Part VIA to Clause 9: inserts a new Part VIA to establish the position Ombudsman (Komesina o Sulufaiga) and to provide for his or her functions under the Constitution.

Clause 10: amends Article 83 to change “Pulenuu” to “sui o le nuu”.

Clause 11: repeals the First and Second Schedules of the Constitution as a result of the amendments to Articles 18 and 44.

Clause 12: provides for general amendments to use gender neutral terms in the Constitution. Clause 13: provides for consequential amendments. (Hon. TUILAEPA Fatialofa Lupesoliai Aiono Neioti Sailele Malielegaoi) PRIME MINISTER CONSTITUTION AMENDMENT BILL

(No.2) 2014

SAMOA

Arrangement of Provisions l. Short title and commencement 2. Article 6 amended 3. Article 18 amended Schedules 4. Article 19 amended 5. Article Z5 amended 6. Article 44 amended amendments 7. Article 49 amended 8. Article 50 amended 9. New Part VIA inserted 10. Article 83 amended 11. First and Second repealed 12. General amendments 13. Consequential 2014, No.

A BILL INTITULED

AN ACT to amend the Constitution BE IT ENACTED by the Legislative Assembly of Samoa in

Parliament assembled as follows:

1. Short title and commencement-(1) This Act may be cited as the Constitution Amendment Act (No.2) 2014.

(2) This Act commences on the date of assent by the Head of State, subject to subsections (3) and (4).

(3) However. Article 44(1)(b) of the Constitution amended by this Act comes into operation on the date appointed by the Head of State under Article 63(4) of the Constitution to dissolve the Legislative Assembly.

(4) Despite subsection (3), nothing affects the carrying out of any duties or powers under Electoral Act 1963 or any other enactment in relation to the registration of voters under the urban voters roll or any other matter necessary for the preparation of urban constituencies in the next general elections for Members of Parliament.

2. Article 6 amended - In Article 6(4), for “Deputy Registrar”, substitute “Assistant Registrar”.

3. Article 18 amended - In Article 18 of the Constitution: (a) for clause (1), substitute:

“18. Appointment of Head of State-(1) The Head of State shall be appointed by the Legislative Assembly acting on the recommendation of the party or parties in Government”: and

(b) in clause (2), for “elected”, substitute “appointed”; and

(c) in clause (3), for “election”, substitute “appointment”; and

(d) after clause (3), insert:

“(4) Within 60 days before expiry of the term of appointment of the Head of State or as soon as practicable when there is a vacancy in the office of Head of State, the party or parties in Government shall submit to the Speaker a written Notice recommending the name of only one (1) person to be appointed as Head of State.

(5) The Speaker shall, as soon as possible after receiving the Notice:

(a) if the Legislative Assembly is sitting, lay the Notice before the Legislative Assembly to appoint the Head of State: or

(b) if the Legislative Assembly is not sitting fix a date for a sitting of the Legislative Assembly to appoint the Head of State.

(6) The Speaker shall issue and sign the warrant of appointment of the Head of State”, 4. Article 19 amended - In Article 19 of the Constitution:

(a) for “Articles 17 and 21”, substitute “Article 21”; and

(b) in clause (2), for “re-election”. substitute “re-appointment”;

(c) for clause (3), substitute:

“(3) If a vacancy in the office of Head of State is caused by the death, resignation or removal of the Head of State or by the expiry of the term of office, Article 18 applies and the person appointed as Head of State holds office for a term of five (5) years from the date on which the person takes the oath of office”.

5. Article 25 amended - In Article 25(2) of the Constitution, for “elected as Head of State”.

substitute “appointed as Head of State”. 6. Article 44 amended - In Article 44 of the Constitution:

(a) in clause (1), for sub-clause (b), substitute: “(b) two (2) members respectively elected, under the two (2) urban constituencies provided by

Act, by persons whose names appear on the urban constituency roll;”; and (b) repeal clause (2).

7. Article 49 amended - In Article 49 of the Constitution after clause (1), insert: “(1A) As an exception to clause (1), the Member nominated, by the party that wins majority of all the seats in the Legislative Assembly after a general election. is taken to have been duly elected by the Legislative Assembly pursuant to clause (1) and shall be endorsed by the Legislative Assembly as Speaker.

(1B) For any vacancy under clause (1), the Member nominated, by the party or parties in Government, is taken to have been duly elected under clause (1) and shall be endorsed by the Legislative Assembly as Speaker”.

8. Article 50 amended - In Article 50, after clause (1), insert:

“(1A) As an exception to clause (1), the Member nominated, by the party that wins majority of all the seats in the Legislative Assembly after a general election. is taken to have been duly elected by the Legislative Assembly pursuant to clause (1) and shall be endorsed by the Legislative Assembly as Deputy Speaker.

(1B) For any vacancy in the office of Deputy Speaker, the Member nominated, by the party or parties in Government, is taken to have been duly elected under clause (1) and shall be endorsed by the Legislative Assembly as Deputy Speaker”.

9. New Part VIA inserted - After Article 82 of the Constitution, insert:

“PART VIA

OMBUDSMAN (KOMESINA O SULUFAIGA) 82A. Ombudsman-(1) There is to be an Ombudsman (Komesina o Sulufaiga) appointed by the Head of State acting on the recommendation of the Legislative Assembly.

(2) The Ombudsman is to be appointed pursuant to the selection and appointment criteria and other terms and conditions provided by Act.

(3)The Ombudsman:

(a) is to be appointed for six (6) years; and (b) is eligible for re-appointment; and (c) on expiry of the term, continues in office until re-appointed or a successor assumes the function of the office.

(4) The salary, allowances and other benefits of the Ombudsman:

(a) are to be determined by Act; and (b) are to be charged on the Treasury Fund, Without further appropriation than this subclause; and

(c) are not to be reduced during the term of office of the Ombudsman, unless as pan of a general

reduction of salaries applied proportionately to all persons whose salaries are determined by Act.

(5) The Ombudsman may be removed from office pursuant to the grounds and procedures provided by Act.

82B. Functions of Ombudsman - The functions of the Ombudsman are:

(a) to carry out the functions relating to promotion of good governance in public administration provided by Act; and (b) to carry out the functions relating to human rights provided by Act; and (c) to carry out any other functions provided by Act.”. 10. Article 83 amended - For Article 83(1) of the Constitution, substitute:

“(1) sui o le nuu;”,

11. First and Second Schedules repealed - The First and Second Schedules of the Constitution are repealed.

12. General amendments - In the Constitution: (a) for “His” in paragraph 1 of the Preamble, substitute “Gods”:

(b) for “his”, substitute “his or her”; (c) for “him”, substitute “him or her”; (d) for “himself ”, substitute “himself or herself”.

13. Consequential amendments-(1) Sections 7, 8(2) and 10 of the Ombudsman (Komesina o Sulufaiga) Act 2013 are repealed.

(2) In any other enactment:

(a) for “Pulenu’u”, substitute “sui o le nuu”; and (b) for any reference to “election” (including all other grammatical variations) of the Head of State, substitute “appointment” (including all other grammatical variations). THE CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA

PART I THE INDEPENDENT STATE OF SAMOA AND ITS SUPREME LAW Clause 2 - Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

PART III THE HEAD OF STATE 18. Election of Head of State - (1) The Head of State shall be elected by the Legislative Assembly under the provisions of the First Schedule. (2) A person shall not be qualified to be elected to the office of Head of State:

(a) if he is not a person qualified to be elected as a Member of Parliament; or (b) if he does not possess such other qualifications as the Legislative Assembly may determine from time to time by resolution; or (c) if he has previously been removed from the office of Head of State under the provisions of clause (2) of Article 21. (3) The validity of the election of the Head of State shall not be contested in any Court.

PART XI GENERAL AND MISCELLANEOUS

109. Amendment of Constitution - (1) Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act, if a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total number of Members of Parliament (including vacancies) and if not fewer than 90 days elapse between the second and third readings of that bill: PROVIDED THAT no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44 and unless it has been supported by two-thirds of the valid votes cast in such a poll. (2) A certificate under the hand of the Speaker that a bill has been passed under the provisions of clause (1) shall be conclusive and shall not be questioned in any Court.