A notice of motion for a Declaratory Judgement and Restraining Orders against the caretaker government of Prime Minister Tuilaepa Sa’ilele Malielegaoi has serious ramifications, if it is successful.

Filed by the leader of the Tautua Samoa Party, Palusalue Fa’apo II, in the Supreme Court on 10 February 2016, the motion, among other things, is asking the Court to prohibit “all members” of Cabinet or the caretaker government “from applying to be candidates in the upcoming General Election.”

A copy of the motion obtained by the Sunday Samoan says that the hearing of the matter is scheduled for 22 February 2016 at 10am. 

Palusalue is seeking a Declaratory Judgment to say that the caretaker Cabinet “does not have the legal capacity to conduct the executive functions of government of Samoa.” 

According to the Motion, the respondent’s legal incapacity is evolved from the violation of the constitution of Samoa clause 32 (1) by violating the doctrine of Collective Responsibility as provided by the constitutional provision as cited above. 

The section of the Constitution referred to here reads: “(1) There shall be a Cabinet of Ministers, who shall have the general direction and control of the executive government of Samoa and shall be collectively responsible therefor to Parliament.”

Additionally Palusalue is seeking orders to;

 (a) Restrain the Cabinet and or Caretaker Government in its role as a Caretaker Government from exercising the executive power of the Government of Samoa (“the government”).

 (b) Restrain the Respondent from making any decision affecting the administration of the government. 

 (c) That the restraining orders in (a) and (b) above are back dated to the day when the violation of the Constitution occurred through the resignation of the former Minister of Finance, infringing the doctrine of collective responsibility as provided in clause 32 (1) of the Constitution. 

 (d) Restrain all members of the Respondent including the former Minister of Finance from applying to be candidates in the upcoming General Election. 

 (e) That the Head of State to appoint a new Caretaker Government. 

 (f) Directing that the costs of the Applicant of and incidental to this application including Solicitor – Client costs, and the order thereon be fixed and be costs in the cause payable by the Respondent or as the case may be.” 

The motion cites that “corruption” is a violation of the Constitution of Samoa. 

“One of the former ministers of the Respondent submitted his resignation based on corruption which is a violation of the Constitution by way of infringing the doctrine of collective responsibility provided by clause 32 (1),” the motion reads.  

“The violation of the Constitution as cited perpetually makes the Respondent to be in an unlawful capacity to exercise its constitutional responsibilities without strict compliance with the cited provision of the Constitution. Hence forth the Respondent must vacate the office of the caretaker government as they currently occupy.”

The motion also points out that the Head of State is “constitutionally empowered” to appoint a new Caretaker Government. 

“By virtue of their legal incapacity, they must be refrained from being candidates of the upcoming General Election which is set down for the 4th March 2016, so that the corrupt practices they had performed can be properly investigated and legally disposed,” the motion says. “The Head of State must dissolve the current Caretaker Government immediately and appoint a new Caretaker Government to perform the executive role of the government.” 

Palusalue also filed a one-page affidavit in support of the motion.

A motion for a Declatory Judgement against the government
has been filed. A copy of it has outlined the details of the motion.

“The Constitution was violated when the former Minister of Finance, Faumuina Liuga (“the minister”) resigned on the 16th April 2014 in accordance to the Cabinet’s collective responsibility as stated in clause 32(1),” Palusalue’s affidavit reads.

“On or about 16th April 2014, the minister resigned during the night session of Parliament under heavy pressure and accusation by the opposition party, of corruption practice and misuse of public money by the minister, as raised in the Auditor and Controller Report 2011 (“Auditor’s Report”).

“The incidents of misuse of public money as cited in the Auditor’s Report were verified and endorsed by the Officers of Parliamentary Committee Report 2014 (“O.P.C Report”). 

“The Officers of Parliamentary Committee was appointed by parliament and given the task of investigating the Auditor’s Report whether it was true there were corrupt practices and misuse of public money in the conduct of the Minister. 

According to Palusalue’s affidavit, the incidents of corrupt practices included the inappropriate use of a $400,000 Samoa Land Corporation vehicle.

He also cited “substantial variations to the contract of building the S.L.C main office building at Tuana’imato as well as the purchase of a water drilling truck through a middleman without an appropriate tender.”

Asked for a comment, Prime Minister Tuilaepa laughed at the lawsuit, threatening to counter sue all members of the Tautua Party for "$100billion and two coconuts."