Opinion - Last week, fresh elections were announced Samoa by the Head of State, which would revoke the results of the general election held on 9 April.
It was reported that the counsel for the incumbent Human Rights Protection Party (HRPP), Aumua Ming Leung Wai, seeks to justify that declaration, by arguing the call for fresh elections was lawful because they were exercising their 'reserve powers'.
The Attorney General is also likely to make the same argument, and they have indicated that they are likely to engage the services of a Queen's Counsel (a foreign lawyer whose work has been given special acknowledgement by the British Crown) to act or advise on the matter.
In my view, this argument should be rejected, because the Head of State does not have any 'reserve powers'.
I explain my view below:
First, what are 'reserve powers'?
In several democratic countries around the world, 'reserve powers' are powers that may be exercised by the Head of State at their discretion and without the approval of another branch of the government. These 'reserve powers' can only be exercised in extreme and exceptional circumstances.
'Reserve powers' get their name by being the 'reserve' or remaining residue of the original powers that the monarch (i.e. the British Crown) once had back when they were able to govern and rule arbitrarily, before democracy was introduced.
Some key examples of 'reserve powers' include the power to dismiss a Prime Minister, and the power to refuse assent to legislation (as required).
But the most relevant one here is the 'reserve power' to force a dissolution of Parliament and call new elections when there is a hung parliament.
This specific 'reserved power' was almost exercised by Queen Elizabeth II herself in the United Kingdom when there was a hung parliament in 1974, and could have potentially been exercised by the Governor-General of New Zealand (as the Queen's representative) in 1993 when it seemed there was a hung parliament before the results were eventually finalised.
While most of the powers of the Head of State are laid down in a nation's constitution and legislation, these 'reserve powers' are not formally written down in any law. Instead, they are just accepted and regarded to exist and be available to the Head of State in those extreme and exceptional circumstances.
While are not formally laid down in any law, some government's talk about the 'reserve powers' their Head of State has on websites and other documents, including New Zealand's which can be found here.
Does the Head of State of Samoa have 'reserve powers'?
In my view, the Head of State of Samoa does not have any 'reserve powers'. This is because there is clear evidence that our forebears who drafted and passed the Constitution at the Constitutional Conventions of 1954 and 1960, purposefully chose not to grant the Head of State any 'reserve powers', and made a deliberate and intentional effort to explicitly spell out the powers of the Head of State in the Constitution.
There is likely to be several primary and secondary sources providing this evidential support. However, the most authoritative insights on Samoa's Constitution come from Lauofo Meti's seminal text Samoa: The Making of the Constitution. There, Meti draws on the words of Tupua Tamasese Mea'ole (the first joint Head of State and joint chairman of the constitutional conventions of 1954 and 1960, with Malietoa Tanumafili II) to remark on page 93:
"While in practice, functions of the office of the Head of State were not governed by fixed rules, it was felt that owing to the absence of a body of which these functions would have sprung, they should be embodied in law. The unwritten conventions would grow over time. Unlike the United States where the President was not only the Chief Executive but also the Head of State, the parliamentary system separated the two positions with the Head of State exercising duties on the advice of the head executive who was the Prime Minister and/or Cabinet. Under that system the Head of State was
not as free to act as wished."
Counsel for HRPP and the Attorney General might dubiously argue that this one sentence ("The unwritten conventions would grow over time") means that the Head of State was entitled to "grow" this "unwritten convention" (another term for 'reserved power') spontaneously with his declaration. However, in my view, it is clear that this should be honestly read as meaning that "unwritten conventions would grow over time" in order to then be able to be put into the Constitution (through the prescribed constitutional amendment process) and "be embodied in law".
This is clear not only from reading the provision as a whole, but also because the primary concern (that there is an "absence of a body of which these functions would have sprung") has endured and remains today.
Therefore, this work of building this "body" to "grow" unwritten conventions and 'reserve powers" into written constitutional provisions should now be a priority for Samoa moving forward, and it must be done in the same spirit of transparency, fairness and collaboration that guided the Constitutional Conventions of 1954 and 1960.
Another easily accessible and helpful secondary source showing that the Head of State does not have 'reserved powers' comes from Sir Guy Powles, who was the High Commissioner of Samoa from 1949 to 1960, and one of the main facilitators and architects of Samoa's independence. In an address given to the Indian Society of International Law in New Delhi on 11 October 1961, which was later published in the Indian Journal of Political Science (available online here), Powles notes in an excerpt worth quoting at length (at page 190):
"In the provisions relating to the Head of State, the Executive and the Legislature, an attempt has been made to spell out in some considerable detail the various British conventions applicable to the conduct of a Constitutional Head of State.
"For instance, it was not thought wise in a new and comparatively untried parliamentary democracy, to leave unspecified the various circumstances in which the Head of State could or could not act on his own discretion. It is not an easy task to attempt to put into writing the provisions of comparatively unwritten Conventions such as this - a task which was apparently not thought necessary by the Founding Fathers of [India's] Convention, but the course adopted in India has, as is well known, led to certain discussions and perhaps disagreement.
"By the Constitution of Western Samoa, the Head of State is required to act on the advice of Cabinet, the Prime Minister, or the appropriate Minister as the case may be, except as otherwise provided in the Constitution.
"The exceptions are interesting: In the appointment of a Prime Minister, the Head of State is required to select someone who commands the confidence of a majority of the members of the House. This requirement limits his discretion, but he is not specifically enjoined to act upon advice. …
"The Head of State may, in his discretion, summon a meeting of the Executive Council. …. The Head of State may, in his discretion, dissolve the Legislature if the office of Prime Minister becomes vacant and there is no other member of the House likely to command the confidence of a majority..."
In this excerpt above, Powles makes it clear that the Head of State of Samoa does not have 'reserve powers' (he refers to them here as "Unwritten Conventions") because our forbears in making the Constitution were very careful not to give the Head of State such discretionary powers because of Samoa's "new and comparatively untried parliamentary democracy" - reiterating Meti's work above.