legislative needs assessment - samoa final report

8/3/2019 Legislative Needs Assessment - Samoa FINAL REPORT

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Samoa Legislative AssemblyLegislative Needs Assessment

24 March 2011



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Preface

The Parliament of Samoa invited the United Nations Development Programme’s

Pacific Centre to undertake a Legislative Needs Assessment (LNA) in order to

identify opportunities for institutional strengthening. The UNDP commissions

LNAs as a basis for determining long-term parliamentary support activities. The

purpose of this LNA therefore is to identify processes, resources and means by

which the Parliament of Samoa might better secure its democratic objectives,

including meeting the Millennium Development Goals (MDG), as a Westminster

legislature. These include greater efficiency and effectiveness in legislative

performance, executive scrutiny/oversight and popular representation. In order

to promote these ends, the LNA makes recommendations to contribute to

Samoa’s improved governance aims, in keeping with the national heritage and

circumstances of Samoa. A parallel objective of the LNA mechanism is to identify

practical and appropriate ways that the international community can assist

Samoa in strengthening the institution and processes of the Parliament.

The consultations for this LNA were carried out in Apia between 2 and 9

February 2011 under a programme of interviews and meetings largely managed

by the Parliament’s Inter-Parliamentary Relations Office, with input from the

UNDP Pacific Centre and the consultant. The range of consultations was as

extensive as permitted by the time available and the exigencies of the national

elections which were then in progress. Conducting the consultations during an

election campaign was itself something of a double-edged sword. There were

significant difficulties in gaining access to all of those whom it would have been

desirable to meet. On the other hand, watching the campaign and the

interactions between the customary system and the formal electoral issue

proved very useful in understanding the practical dynamics of electing a

parliament in contemporary Samoa.

The 2011 national election was held during the course of writing this report. As

consequence, some circumstances changed that impacted on the content of the

report. It is not clear that all aspects of the election have been settled even as the



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final words of the report were drafted. It is unlikely, however, that these would

affect significant elements of the conclusions reached, though the possibility

cannot be discounted. Hopefully, any adjustment in the recommendations that

would be required by such changes will be clear from the overall context of the

report.

The consultant wishes to thank all who assisted in the conduct of the fieldwork

for this LNA for their assistance and patience. Their advice has been essential

and their hospitality very much appreciated. The consultant offers sincere

gratitude and best wishes for the success of the Samoan Parliament in its

democratic role of serving the people of Samoa. It was a personal honour to have

served in this enterprise, however briefly, and the consultant hopes it will

contribute to improving the Parliament’s capacity to achieve its goals.

Mr Richard Herr, OAM, PhD

Consultant, March 2011



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Table of Contents

EXECUTIVE SUMMARY ....................................................................................................................... 6

SUMMARY OF RECOMMENDATIONS ................................................................................................. 8

1.0 INTRODUCTION: THE SAMOAN PARLIAMENTARY SYSTEM IN NATIONAL CONTEXT ................... 16

2.0 THE INSTITUTION OF PARLIAMENT: INDEPENDENCE AND IDENTITY ................ .................... ...... 21

INTRODUCTION ................................................................................................................................ 21

THE INDEPENDENT IDENTITY OF PARLIAMENT .......................................................................................... 22

3.0 LEGISLATIVE ASSEMBLY MEMBERS AND THEIR ROLES ................ ..................... .................... ...... 26

INTRODUCTION ................................................................................................................................ 26

THE LEGISLATIVE ROLE ....................................................................................................................... 26

COMMITTEE OVERSIGHT OF THE EXECUTIVE ............................................................................................ 31

THE CHALLENGE OF EXECUTIVE OVERSIGHT ............................................................................................. 33

MEMBERS AND THE MILLENNIUM DEVELOPMENT GOALS ........................................................................... 36

4.0. PARLIAMENTARY REPRESENTATION AND POLITICAL PARTIES ..................... .................... ......... 38

INTRODUCTION ................................................................................................................................ 38

GENDER AND REPRESENTATION............................................................................................................ 38

REPRESENTATION THROUGH THE PARLIAMENT ......................................................................................... 40

POLITICAL PARTIES AND ELECTION TO PARLIAMENT ................................................................................... 41

POLITICAL PARTIES IN PARLIAMENT ....................................................................................................... 44

PARTY HOPPING AND THE ROLE OF THE SPEAKER ...................................................................................... 46

5.0 OPPOSITION IN PARLIAMENT ..................................................................................................... 50

INTRODUCTION ................................................................................................................................ 50

OPPOSITION IN THE SAMOAN PARLIAMENT ............................................................................................. 50

THE FORMAL OPPOSITION .................................................................................................................. 53

6.0 PARLIAMENT AND THE EXECUTIVE ............................................................................................. 58

INTRODUCTION ................................................................................................................................ 58

THE HEAD OF STATE AND COUNCIL OF DEPUTIES ...................................................................................... 59

CONSTITUTIONAL CHANGE .................................................................................................................. 60

GOVERNMENT CONTROL OF THE LEGISLATIVE ASSEMBLY ............................................................................ 61

EXECUTIVE DOMINANCE OUTSIDE THE LEGISLATIVE ASSEMBLY..................................................................... 62

NON-LEGISLATIVE RESTRAINTS ON THE EXECUTIVE: THE JUDICIARY AND THE PRESS ........................................... 63

7.0. THE STRUCTURE AND ADMINISTRATION OF THE LEGISLATIVE ASSEMBLY .................... ............ 66

INTRODUCTION ................................................................................................................................ 66

OFFICE OF THE SPEAKER OF THE LEGISLATIVE ASSEMBLY ............................................................................. 66

OFFICE OF THE CLERK OF THE LEGISLATIVE ASSEMBLY ................................................................................ 67

THE MAOTA OFFICE .......................................................................................................................... 67

STANDING SELECT COMMITTEES OFFICE ................................................................................................. 68

REPORTING AND TRANSLATION SECTION................................................................................................. 69

PARLIAMENTARY LIBRARY AND PARLIAMENTARY RESEARCH CAPACITY............................................................ 71

PRINTING SERVICES SECTION ............................................................................................................... 72

DEPARTMENT FOR CORPORATE SERVICES................................................................................................ 73

PARLIAMENTARY OUTREACH ............................................................................................................... 73

8.0 LEGISLATIVE ASSEMBLY STAFF AND FACILITIES: GAPS AND CONSTRAINTS ............... .................. 75

INTRODUCTION ................................................................................................................................ 75

ADEQUACY OF THE PARLIAMENTARY HUMAN RESOURCES........................................................................... 75



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ADEQUACY OF PARLIAMENTARY INFORMATION ........................................................................................ 77

ADEQUACY OF THE PARLIAMENTARY BUILT FACILITIES ................................................................................ 80

CONCLUSION ................................................................................................................................... 86

ANNEX 1: LIST OF CONSULTATIONS ................................................................................................. 87

ANNEX 2: SELECT BIBLIOGRAPHY ..................................................................................................... 88

ANNEX 3: CONSULTANT’S BACKGROUND......................................................................................... 91



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Executive Summary

Samoa is the oldest democracy in the Pacific Islands region. It has peacefully and

smoothly changed Governments since independence in 1962. There is very little

history of political violence over the past half century. Its economy is fragile but

stabile although it has the United Nations status of being a least developed

country. The country has a very strong sense of national identity grounded in,

perhaps, the oldest integrated social system in Polynesia. Yet, despite the

strength of its governance system overall, Samoa has a weak Parliament.

Samoa’s unicameral Parliament is based on Westminster principles of

responsible government with the Executive (Government/Ministry) drawn from

the membership of the Legislative Assembly. Typically, Westminster

parliaments throughout the world are described as “reactive” in the sense that

the Executive takes the initiative and the legislature reacts to the Government’s

programme. This contrasts with the American Congress, which is described as

“active” because it is wholly independent of the Executive and has well-used

powers of legislative initiation. Thus, the Samoan Legislative Assembly would be

expected to be institutionally weaker than the Executive.

Nevertheless, Samoa’s Legislative Assembly is much weaker than it should be,

even within the Westminster framework. The Hon. Tolofuaivalelei Falemoe

Lei’ataua, the current Speaker, identified the problem succinctly in 2006 as

securing Parliament’s independence from the Executive (see para 3.1). This

Legislative Needs Assessment (LNA) confirms the Speaker’s analysis. At present,

the Legislative Assembly is the weakest link in Samoa’s chain of democratic

governance. Other areas of the formal governance process – the bureaucracy

and the courts – appear to be effective. The media seems to be fairly free and

accessible.



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There is one area of democratic process in Samoa that invariably attracts

attention. Samoa is not a liberal democracy (see para 4.1).1 It has universal

suffrage, but customary processes (fa’a Samoa) also play a very large role in

contemporary politics and these processes exclude the majority of Samoans from

elective office. Only citizens with titles (matai) are eligible to stand for election.

Moreover, a substantial portion of the national administration of law and order is

entrusted to matai through the devolution of responsibilities to village councils

(fono) composed of titled individuals. Liberal concerns for the civil rights of

individuals are genuine, but offset both by the reciprocal rights that exist

between matai and non-titled family members and by the several acts of support

for this blend of fa’a Samoa and elective democracy.

Other Westminster systems recognise the inherent tendency of the Executive to

dominate the political process. In response, some parliaments have developed

conventions and procedures to check Executive power. For example, in addition

to procedural restraints in the House of Representative, Australia maintains a

bicameral system wherein the Senate tends to serve as a parliamentary check on

the Executive. New Zealand, on the other hand, is a unicameral system like

Samoa. It suffered from some of the same difficulties arising from the

concentration of powers in a single house but, over the last 15 years, it has put in

place changes such as a proportional electoral system and parliamentary

procedures that compel greater accountability to the Parliament to restore the

balance between the House of Representatives and the Government.

This LNA has isolated several significant factors that have contributed to the

weakness of the Legislative Assembly as an institution. The principal ones

include: the extended dominance of a single party; the failure of the Executive to

restrain its own power, the absence of an effective Opposition, and a serious lack

of institutional awareness of parliament as an institution apart from the

Executive, by both MPs themselves and the public at large.

1 Liberal democracy is essentially concerned the political equality of all individuals in society and

so is concerned with limiting the power of the state over the individual.



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The Legislative Needs Assessment (LNA) is an external review undertaken to

assist the Samoan parliament identify opportunities for institutional

strengthening by which it might better secure its democratic objectives. To this

end, this LNA makes recommendations to contribute to Samoa’s improved

governance aims in keeping with the national heritage and circumstances of

Samoa. A parallel objective is to identify practical and appropriate ways that the

international community can assist Samoa in strengthening the institution and

processes of the Parliament.

It is inappropriate for an external review to attempt to impose values on the host

people and their national approach to democracy. This is all the more true in

Samoa’s case as the political and social stability of the country over a relatively

long period of independence speaks to the popular acceptance of its political

processes. Nevertheless, Samoa has adopted and maintained an external

political system – the Westminster model of responsible government – and to

use such a political system against its purpose and proper function is not only

unwise, but it can be dangerous.

While this LNA does not conclude that the Westminster model for parliamentary

governance has been broken in Samoa, there is nonetheless a concern that it has

been stretched to a very serious extent and may not be functioning most

effectively. The basic framework for keeping a balance between Government

and the Legislative Assembly is in place, but critics claim this structure is not

allowed to operate in practice as intended. The Government and the governing

Human Rights Protection Party (HRPP) counter with their success at the polls.

Summary of RecommendationsThe recommendations contained in this report do not include advice to the

Government of Samoa on how to interpret and/or implement its popular

mandate. Still, the concerns encountered in the course of this assessment

regarding aspects of the Government’s approach to governing might be read as

informal guidance on how the Executive can better implement the ideals of the



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Westminster system, noting that Prime Minister Tuilaepa has acknowledged the

need for more balance in the Parliament (para 5.13).

Below are a number of recommendations for consideration by the Parliament of

Samoa. The various recommendations are grouped together in this summary

according to subject focus, although they are scattered throughout the narrative

body of the Report. Notably, this LNA recognises that some proposed

recommendations may be supported through assistance from the international

community, but this is an issue to be discussed between the Parliament of Samoa

and its development partners within the overall context of this Report.

Capacity development for Members

Recommendation (para 2.2): A general Induction Programme for all new

Members of Parliament is being scheduled for early in the Parliamentary term.

This Induction should include specific sessions (1) on the role of Opposition MPs

to enable them to better understanding their role as parliamentarians; (2) the

importance of Committee oversight in checking the Executive; and (3) an

introduction to subject-specific issues such as human rights, financial

accountability, MDGs achievement, and the like, recognising that MPs have a key

role to play in national development.

Recommendation (para 2.5): Consideration should be given to developing a

“code of conduct for Members” to strengthen the objectives of the present Code

of Ethics.

Recommendation (para 2.6): Consideration should be given to developing a

“Members Manual” which will act as an simple reference guide which will

provide Members with guidance on parliamentary procedure issues, as well as

substantive issues information.

Recommendation (para 2.7): A general programme of capacity development for

MPs should be developed by the Parliamentary Secretariat, in collaboration with



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who manages the register of parties. This would disentangle the Speaker,

Parliament’s principal institutional bulwark against the Executive, from any

statutory decision-making regarding partisanship.

Parliamentary Opposition

Recommendation (para 5.9): Regardless of whether the linking of the two

Standing Orders (S.O.21 and S.O. 20(1)) relating to party membership and

Opposition status in the House was intended to have the effect that it has had on

parliamentary Opposition, the consequences on the viability of maintaining a

parliamentary Opposition in the House are now clear. It is recommended that

the threshold for recognition of parliamentary party status be revised by

reducing the requirement to a more “responsible”, lower number.

Recommendation (para 5.16): If the previous recommendation regarding

parliamentary party status (para 5.9) is not adopted, a case remains for ensuring

that there is a Leader of the Opposition, to fulfil the responsibilities of that office

under other Standing Orders. The position of the Leader of the Opposition could

be maintained by adding the words “or grouping” after the words “Leader of the

largest party” in S.O. 21.

Recommendation (para 5.15): In light of the improved numbers but limited

experience of the post 2011 election Opposition, it should be a matter of high

priority to provide an appropriate grounding in the practical use of

parliamentary procedure and processes including effective committee work.

Ensuring effective oversight

Recommendation (para 3.11): Noting the limited number of MPs available toparticipate in committee work, consideration should be given to reviewing the

existing committees and combining/consolidating them into a smaller number.

This would result in MP’s sitting on fewer committees which would enable them

to specialise in the subject matter of the few committees on which they sit.



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Recommendation (para 3.13): It is highly desirable that the Legislative Assembly

has an effective and independent scrutiny process for reviewing proposed

legislation against standards for compliance with human rights, socio-economic

impacts (including gender impacts), civil liberties and democratic fairness

obligations. A committee for the scrutiny of legislation could provide this

capacity; especially if supported by independent parliamentary counsel.

Recommendation (para 3.19): Specific attention should be given to

strengthening the understanding of MPs of development/MDGs issues, so that

they can more effectively engage with parliamentary processes to promote good

development, and so they can raise awareness on these issues with their own

constituents. Specific attention should also be given to supporting parliamentary

committee members to more effectively use committees to engage with

development/MDGs issues, especially through the use of public hearings.

Recommendation (para 3.9): Members of Parliament should work closely with

the Parliamentary Secretariat to encourage and facilitate greater public

understanding of, and involvement in, the law-making and committee oversight

processes of parliament. This would include improved use of civil society

organisations and the media.

Strengthening the Parliamentary Secretariat

Recommendation (para 6.11): While there is a debate over the value of the a

contract senior executive as a means of securing a more politically responsive

public service, the limited tenure of the Samoan contracts clearly has made the

senior levels of the bureaucracy politically contentious for being too responsive.

It is desirable that the length of such contract appointments at least equal if not

exceed the normal life of a parliament.

Recommendation (para 8.3): It is strongly recommended that the terms of

parliamentary staff employment be reviewed reviewed by a bi-partisan

committee assisted by competent external expertise with the objective of



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establishing a career service with secure appointments for senior parliamentary

staff officers.

Recommendation (para 3.6): Support for the provision of a legal counsel

experienced in parliamentary processes including the drafting of bills should be

sought, perhaps on a three year contract, to identify the extent of the need for an

independent parliamentary counsel. At the same time, regional legal advisory

support options may be explored to identify more cost-effective approaches

Recommendation (para 7.10): The Daily Hansard should be made available

immediately after the text is proofread for technical errors and approved. This

need not be in printed copy but could be made available electronically through

the Parliament’s website.

Recommendation (para 7.13): The Library Department should work with

the Library of the Tasmanian twinned parliament to identify sustainable,

cost-effective options for strengthening the information resources available

to the Library and members.

Recommendation (para 7.14) In cooperation with Samoa’s twinned parliament

and/or the Pacific Parliaments Network, the Samoa parliament could undertake

a scoping study to identify options for developing a sustainable parliamentary

research service for Samoa.

Recommendation (para 8.4): An appropriate, on-going programme of

professional development should be established to support the Legislative

Assembly parliamentary staff. If there is to be a professional career service for

parliamentary staff, it is essential that there also be a professional training

programme. However, this professional development programme should not

depend on the establishment of the proposed career service.

Recommendation (para 8.6): Independently of any action on the

recommendation regarding external support for an independent parliamentary



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counsel, the Speaker and the Clerk should explore the options for avoiding

conflicts of interest in securing legal advice against the Executive. If the

commercial option is pursued, a contingency budgetary allocation should be

included in the Legislative Assembly’s budget.

Parliamentary outreach to the public

Recommendation (para 7.18): Parliament should form a non-partisan

committee under the aegis of the Clerk to assess what can be done to develop a

schools’ programme including appropriate literature for visiting school groups,

internet-based virtual tours and curriculum support for education in the nature

and role of the Samoan Parliament in the life of the nation. Such a programme

could also be a feature for an Annual Open Day at the Parliament.

Recommendation (para 7.19): Even without a formal schools programme,

however, every MP should be encouraged to sponsor at least one school visit a

year to observe the Parliament at work to foster youth interest in the Parliament.

This could usefully be facilitated with the cooperation of the Ministries for

Education and Women, Community and Social Development especially so that

schools remote from Apia may be included.

Recommendation (para 8.8): The Secretariat should develop a specific Public

Outreach / Communications Strategy designed to more effectively disseminate

information and to collect feedback/inputs from the public.

Recommendation (para 8.11): The Parliament of Samoa’s website should be

upgraded to provide more detail on individual MPs and e-mail accounts should

be opened for each MP to enable more direct and secure communication

between Members and constituents and the wider public.

Recommendation (para 8.12): The Parliament of Samoa’s website should be

upgraded to facilitate both public access and public participation. This will

involve significant changes to existing practice with regard to the distribution of



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parliamentary publications such as the Daily Hansard and committee papers,

reports and submissions.

Recommendation (para 8.13): Parliament should have a dedicated mail server

on site to service increased development of the communication through the

parliamentary website. This might best be provided through a foreign assistance

package that included an expert from another parliament with knowledge of, and

experience with, the appropriate protocols for privilege and security.

Improved use of parliamentary buildings

Recommendation (para 8.20): The architect’s assessment of the Legislative

Assembly Staff Office should be taken seriously especially in light of the health

and safety issues that it identifies and the understandable concerns that Samoans

have for tsunamis in low lying areas. Given the costs involved and the relative

urgency of the matter, it would be appropriate to seek assistance through

appropriate external assistance channels. This recommendation is contingent,

however, on resolution of the use of the Tofilau Building (see para 8.24).

Recommendation (para 8.22): As soon as practical the Speaker and the Clerk

should seek guidance from the Business, Standing Orders, House and Electoral

Committee on developing an appropriate plan for more effective utilisation of

the Tofilau Building. This ought to be undertaken in parallel with decisions on

the replacement or refurbishment of the Legislative Assembly Staff Offices.

Given the scale of this review, the matters raised regarding the old Maota Fono

and the general security needs of the parliamentary precinct should be included

as a part of this process.

Recommendations for the International Community

Recommendation (3.7): It is highly desirable that immediate assistance be

given through an Institutional Strengthening Programme (ISP) to support a

comprehensive, on-going professional programme for MPs and parliamentary

staff foreshadowed by the recommendations in this LNA.



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1.0 Introduction: The Samoan Parliamentary

System in National Context

1.1. The modern Samoan parliamentary system has been overlayed on an

ancient traditional political culture (fa’a Samoa) that remains both vibrant and

influential today. The traditional Samoan political processes have defined much

of the contemporary approach to social stability and the rule of law especially in

the villages where the local councils (fono) maintain stability using customary

practices and law. Indeed, some have described modern Samoa as a confederacy

of 360 republics due to the importance of the village fono to the life and structure

of order in Samoa. The maintenance of fa’a Samoa was a critical consideration in

drafting the 1960 Constitution and in the 1961 plebiscite supporting

independence under this constitution. Even the referendum in 1990 to provide

for universal suffrage by amending the constitutionally entrenched limitation of

the franchise to matai (persons with chiefly titles) was motivated in large part to

save the matai system from the pressures of the westernised (liberal) aspects of

the national electoral system. Estimates give the number of recognised matai

titles at around 25,000 with women holding about one in every twenty titles. It

was represented to this LNA that the number of titles being conferred on women

may be increasing as women become better educated, more self-confident of

their own status in society and as the Samoan community has grown more

accepting of gender equality although senior titles are elusive.

1.2. Samoa is a parliamentary democracy with a Constitution based on general

Westminster principles in terms of the relationship between the Parliament and

the Government. As defined by Article 42 of the Constitution of Samoa, the

Parliament is composed of two institutions – the Head of State (Le Ao o le Malo)

and the Legislative Assembly (Fono Aoao Faitulafono).2

There is some dispute asto whether Samoa is a constitutional monarchy or a republic. The Head of State

is addressed as “His Highness” and every Head of State since independence has

been a Tama a aiga (one of the four paramount chiefly titles that, conventionally,

2 Constitution of the Independent State of Samoa 1960. Accessed at:http://www.paclii.org/ws/legis/consol_act/cotisos1960438/



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have been treated as “royal”). However, the republic argument holds that the

Constitution does not require that the Head of State be a “royal” (Tama a aiga),

thus classing Samoa as a republic. The Government of Samoa itself has settled

the issue in favour of being a republic by referring to His Highness as a

“ceremonial President”. Appointment to the office is by the Legislative Assembly

(Art. 19 of the Constitution) for a term of five years. Unquestionably, the powers

of the Head of State are limited, even by the general standards of Westminster

constitutional monarchies, as the office appears to have few discretionary

powers, save those of summoning, proroguing and dissolving the Legislative

Assembly and assenting or refusing assent to parliamentary bills to make them

law. Even these powers are heavily circumscribed.

1.3. The Legislative Assembly is a unicameral legislature with 49 members

elected for five year terms from two electoral rolls serving three distinct

constituencies. The vast majority of voters are enrolled on a register for matai

candidates. The second electoral roll is a register of those voters whose ethnicity

or other circumstance puts them outside the matai system. Indeed, to qualify for

Individual Voters’ Roll (IVR), the voter must disavow any claims to lands or titles

under the matai system. The matai register is used for two types of

constituencies – 35 single member and six dual-member constituencies. The

two-member constituencies could not be divided for historical reasons but have

a population base sufficient to justify two representatives. The two non-

geographic or Individual Voters’ Roll (IVR) constituencies return one member

each. A 1990 amendment to the Constitution provided for universal suffrage by

extending the franchise to untitled citizens. However, it did not rescind the

limitation on the eligibility to stand for the Legislative Assembly to matai. The

two MPs elected from the Individual Voters’ Roll were permitted to sit in the

Legislative Assembly as non-matai until an amendment in 2010 restricted

eligibility even in these two seats to matai candidates. Consequently, there is

wide spread speculation that the IVR will be abandoned in the near future and

that the restriction to only matai candidates is a prelude to this change. Given

universal suffrage and the restriction of all seats to matai candidates, there

appears to be little need for the IVR distinction.



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1.4. The Government of Samoa is selected from the membership of the

Legislative Assembly according to Westminster principles of the party or group

that commands a majority on the floor of the Assembly being invited by the Head

of State to form a ministry. The Human Rights Protection Party (HRPP) has held

the parliamentary majority for an unbroken 22 years since 1988. In addition to

the Prime Minister, there are currently 12 other ministers in the Cabinet. The

decisions of the Cabinet may be given executive effect by an Executive Council

chaired by the Head of State and including the Prime Minister and the other

ministers, although this is not a requirement as Cabinet decisions can be given

effect without a meeting of Executive Council (Constitution, Art 38). The Head of

State’s role can be carried out by the Council of Deputies if the Head of State is

overseas or incapacitated. The Council of Deputies is appointed by the

Legislative Assembly and, by practice and expectation (Constitution, Art 25), is

filled only by those Tama a aiga not holding other offices. Currently, there is

only one member of the Council, Tuimaleali’ifano Vaaleto’a Sualauvi II, as two

other Tama a aiga titles are vacant.

1.5. The significance of fa’a Samoa was dramatically demonstrated with the

passage of the Village Fono Act 1990.3 At the time of the change to universal

suffrage, the Parliament legislated to protect the “custom and usage” of the

village assembly (fono). In effect, it protected the matai system at the village

level at the same time as universal suffrage was modifying this nationally.

Village Fono Act confirmed or granted powers to each fono to exercise its

traditional rule within the village under the authority of the state. This is a very

substantial grant of authority and included such power as to compel work for

village service, impose fines and inflict other punishment in keeping with village

traditions. The Act also provides that a state court should take into account the

punishment of the village fono if the matter went further to a court. Further, the

village fono is not required to maintain written records of punishments although

any village member punished does have a right to appeal against the fono’s

3 Village Fono Act 1990. Accessed at: http://www.paclii.org/ws/legis/consol_act/vfa1990128/



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judgment. The village fono is also exempt from income tax notwithstanding its

power to make regulations for the use of village land for economic development.

1.6 The state of Samoa, including the Parliament, exercises very little

oversight with regard to the village fono or its activities. Other than the power of

the courts to review the punishments meted out by the village fonos, the only

other direct role the state exercises is in authenticating the existence of a fono

through a certificate issued by the Registrar of the Lands and Titles Court. In

part because of their autonomy and importance to the public life of Samoa, many

Ministries have extensive networks of contacts with the village system especially

through the pulenu’u or sui o le nu’u. (The term pulenu’u is in common usage but

the Government insisted during the recent electoral campaign that it has been

replaced by the term sui o le nu’u through an amendment to the Internal Affairs

Act 1995).4 This is an official position in the village sometimes translated as

“mayor”, but is better understood as fono-endorsed officials that carry out fono

decisions but are recognised by the Government of Samoa and paid a salary

through the Ministry of Women, Community and Social Development.

1.7. The interaction between the political dynamics of fa’a Samoa and the liberal

elements of the formal national democratic processes can be jarring. Those who

favour liberal (individual-based) politico-legal forms frequently find that the

influence of custom-based processes undermine critical elements of individual

rights that are central to a liberal democratic order. On the other hand, those

who defend fa’a Samoa as essential to the national identity of Samoa have

argued, rather successfully since independence, that liberal impulses must

recognise and respect the customary practices that serve as the country’s social

cement. Samoan statutes are replete with examples of the temporisations

between liberal political objectives and the maintenance of fa’a Samoa. For

example, the Electoral Act 1963 as amended recognises that “treating” is an

4 Internal Affairs Amendment Act 2010 Accessed at:

http://www.parliament.gov.ws/Portals/185/Documents/ListOfActs/2010/ENG/Internal%20Aff airs%20Amendment%20Act%202010%20-%20Eng%20(Introduced%20in%20Parliament)%20-%20FINAL.pdf



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improper attempt to buy votes and so is illegal (s 97(1)).5 However, traditional

gifts given as o’o or momoli to recognise support are legal as compliance is an

expected and even necessary customary obligation (s 97A). Similarly, giving

tautua fa’a auau (service or assistance to the community) is also exempt on the

same grounds (s 97B). Attempts are made by the statute to regulate when these

customary gestures are made to limit their impact on voters, but controversies

can occur regarding the customary nature or timing of these obligations.

1.8. In the recent 4 March 2011 election, the influence of traditional political

processes on the formal electoral system became highly visible and contentious

when the Electoral Commissioner declared, inter alia, that the candidate

standing against the Prime Minister had failed to perform the required monotaga

(obligatory chiefly contribution to the village) to establish his eligibility to stand

as a candidate. The Supreme Court subsequently upheld the Commissioner’s

decision but such cases highlight the tensions between the traditional and the

formal processes in contemporary Samoan democracy. Requirements that

customary obligations and forms be observed clearly clashed with liberal

expectations that voters make decisions on the suitability of candidates. The role

that the pulenu’u/ sui o le nu’u plays in signing the form validating the eligibility

of a candidate can involve considerations that a Western liberal process would

regard as improper interference with the right of an individual to stand and the

right of the voters to decide on the appropriateness of that candidature. Reviews

such as this LNA cannot help but note the difficulties that these clash of values

create and the pernicious affects they appear to have on public confidence in

electoral outcomes. Ultimately, however, the resolution of such tensions must be

left to Samoans to decide in ways that they regard as legitimate and appropriate.

5 Electoral Act 1963. Accessed at http://www.paclii.org/ws/legis/consol_act/ea1963103/



21

2.0 The Institution of Parliament:

Independence and Identity

Introduction

2.1 Public perceptions of the Parliament as an institution suffer from an

awareness problem that is scarcely unique to Samoa. Everywhere in the

Westminster world, parliaments have a crisis of identity – and, not just for a

public that conflates images of Government and Parliament as one in the same.

Members of Parliament seem, at times, no more sensitive to distinctions between

their parliamentary roles and those of Government than the general public. MPs

tend to see their career ambitions almost exclusively in terms of Executive

positions. This has the effect of subordinating their parliamentary roles to

pathways that lead to, or maintain, ministerial preferment. Not surprisingly, this

development conduces to a weakening of the institutional robustness of

Parliament and is often encouraged by Executives to lessen parliamentary

restraints on the Ministry. These institutional ambiguities are not simply a

matter of a lack of knowledge. They impact on the capacity of the Parliament to

fulfil its democratic roles and institutional obligations.

2.2 There are several vital functions that inhere in the institution of Parliament.

The legislative (law-making) function is, perhaps, foremost in the public mind as

it is exclusive to the Parliament. Nonetheless, the Legislative Assembly element

of the Parliament (that is, the Parliament excluding the Head of State) has other

significant and democratically important functions. These include providing

popular representation; electing and sustaining a Government (Ministry);

oversighting the Executive; providing transparency and enforcing Executive

accountability. While is highly desirable that the public understands the

institutional distinctions, it is essential these institutional values inform theattitudes and actions of the parliamentary participants; the Members and

Parliamentary Staff but especially the Members. Without this understanding of

the institutional ethos of the Parliament, MPs will not fully appreciate the variety

of roles that a Member must play in the Parliament to enable the Parliament to

perform all its varied functions.



22

Recommendation: A general Induction Programme for all new Members of

Parliament is being scheduled for early in the Parliamentary term. This Induction

should include specific sessions (1) on the role of Opposition MPs to enable them to

better understanding their role as parliamentarians; (2) the importance of

Committee oversight in checking the Executive; and (3) an introduction to subject-

specific issues such as human rights, financial accountability, MDGs achievement,

and the like, recognising that MPs have a key role to play in national development..

The Independent Identity of Parliament

2.3 It is idealistic to assume that candidates elected under a political party

banner and beholden to party processes for parliamentary advancement can be

cajoled into embracing parliamentary values in preference to their partyloyalties. The challenge in virtually all Westminster parliaments is to encourage

MPs to recognise that they have parallel obligations to the parliament and,

importantly, that when the two conflict, it is the parliamentary obligations that

must prevail. Of course, if MPs are to make such choices they must be aware of

the extent of their parliamentary obligations and how these limit their personal

and party ambitions. In previous eras, it was assumed that an extended period in

parliament would inculcate knowledge of parliamentary procedures and practice

since these were the tools for political advancement. This practical immersion

approach is no longer regarded as adequate. Thus, an increasing number of

Westminster parliaments are investing in more explicit mechanisms, including

professional development courses and in-house seminars, for promoting an

understanding of parliament’s rules and obligation amongst MPs.

2.4 The impetus for this development is generated predominantly by concern

for the increased influence of professionalised political party machines over MPs’

orientation to their activities in Parliament. Party political values are strongly

aligned with Executive survival. While nothing is likely to reverse development,

it is clear that a balance has to be restored between the Executive and

parliamentary values and Parliament has a responsibility to take the lead. New

Members’ induction programmes, Members’ codes of conduct, registers of



23

pecuniary interest and the like are amongst the mechanisms being used to

promote respect for, and compliance with, parliamentary values. MP Induction

Programmes are increasingly the norm in the region with most Pacific

parliaments now running some kind of post-election training for Members

(commonly with assistance from development partners, such as UNDP and/or

the Commonwealth Parliamentary Association (CPA), and individual parliaments

from Australia and New Zealand).

2.5 At present, the Samoan Parliament’s investment in its human capital is fairly

limited. Following a review of Standing Orders in 1997, a “Code of Ethics for

Members” was introduced through the Standing Orders (S.O. 14). This is read

aloud by the Speaker before new Members take the Oath of Allegiance. This code

of ethics is fairly anodyne and therefore, despite the presumed “teeth” of a

referral to the Privileges Committee for any breaches, does not provide an

especially useful grounding in parliamentary procedures and practices. It is

desirable that greater content be added to the Code of Ethics by the development

of a more detailed and practical “code of conduct for Members”. Notably, some

years ago, the Ombudsman of Samoa developed a draft Leadership Code for

Samoa, drawing on good practice experience throughout the Pacific. (For

example, PNG, Vanuatu and Solomon Islands all have Leadership Codes

enshrined in their Constitutions, with an institution specifically identified to

oversight the Code, ie. the Ombudsman or a Leadership Code Commission.)

Recommendation: Consideration should be given to

developing a “code of conduct for Members” to strengthen

the objectives of the present Code of Ethics.

2.6 It is also becoming common in many parliaments, globally and in the

Pacific, to develop a simple “Members Manual” which can provide guidance on

the basics of parliamentary law, practice and procedure. Such manuals have bee

produced for the Fiji, PNG and Marshall Islands Parliaments and are currently

being developed for the Tonga and Palau legislatures. This could be useful in

Samoa, particularly taking into account the number of new MPs who were

elected in the March 2011 elections.



24

Recommendation: Consideration should be given to developing a

“Members Manual” which will act as a handy reference guide for

Members on parliamentary practice, procedural issues, ethics, as

well as substantive issues where appropriate.

2.7 In the course of this LNA, it emerged that there is a commitment to fostering

greater institutional understanding of the parliament and its obligations amongst

Members. An Induction Seminar is being planned for new Members following

the March 2011 elections, which also will be made available to returning MPs as

a “refresher” course. Further, the hope has been expressed that, with

appropriate external support, this can be made on-going as part of a more

extensive educational and professional development programme for MPs across

a range of skills needed to be more effective as parliamentarians. It is recognised

that such programmes will have to be borne “in-house” in the longer term. The

burden for maintaining an MPs’ professional development will fall to the

parliamentary staff, though in the initial stages it is envisaged that development

partners’ assistance may be required to support the Secretariat to undertake

such activities.

Recommendation: A general programme of capacity development

for MPs should be developed by the Parliamentary Secretariat, in

collaboration with parliamentary development partners, to

provide continuous professional development opportunities for

MPs.

2.8 Notably, during LNA consultations, considerable support was offered by

stakeholders for the development of an initial support project to strengthen the

capacity of the Samoan Parliamentary Secretariat to provide support services to

Members. This is discussed further elsewhere in this LNA, but at this juncture it

is worth specifically noting that assistance is already being provided and/or on

offer from the CPA, the Parliament of the State of Tasmania, which is the

twinned partner of the Samoan Parliament, as well as the United Nations

Development Programme which funded this LNA.



25

Recommendation: If and when consideration is given to

developing a comprehensive institutional strengthening

project for the Samoan Parliament, the support of existing

development partners should be recognised and

coordination of support from stakeholders should be

prioritised.

2.9. The Parliament of Samoa may have contributed to public confusion on the

important distinction between the Government and the Parliament. Both the

Parliament and the Government of Samoa use the national coat of arms as their

insignia of authority. Many Parliaments have an official crest to distinguish

themselves and their activities from the Government (Executive) and its

activities. While the symbolism will be lost on many, there is merit in promoting

greater awareness of Parliament as an independent and, indeed, supreme

political authority in the state. Moreover the exercise of developing a

parliamentary crest and making it public would be useful catalysts in

consciousness-raising in their own right.

Recommendation: Consideration should be given to

developing a parliamentary seal or crest to mark the

Parliament as a separate institution of state; one that is

distinctive and distinguishable from that of the

Government.



26

3.0 Legislative Assembly Members and Their Roles

Introduction

3.1. The multiple functions of the Legislative Assembly require that its Members

perform a number of roles if the Assembly is to carry out adequately its duties to

the community. As noted previously (para 2.2) MPs are obliged to be inter alia

lawmakers, representatives of public opinion, members of the Executive,

supervisors of Executive activity and agents for public transparency. Not all MPs

can fulfil all of these roles simultaneously. However, collectively as a body (the

Legislative Assembly) and individually as elected representatives over time, they

must ensure that all these roles are undertaken adequately if the Parliament is to

be effective. The general consensus is that, in Samoa as elsewhere, the legislative

functions have been stunted due to the increasing dominance of the Executive.

Indeed, as the current Speaker, the Hon Tolofuaivalelei Falemoe Lei’ataua,

acknowledged in an address to a Presiding Officers and Clerks Conference in July

2006, making the Samoan Parliament independent from the Executive “has

proved very difficult.”6

The Legislative Role

3.2. Taking the last ten years as a sample, the legislative output of the Samoan

Parliament has been modest as might be expected of a small country especially

where the villages exercise as much regulatory autonomy as the Samoan villages

do. On average from 2000 through 2009, the Legislative Assembly passed 21

acts a year with nearly half (nine) being amendments to existing acts. The story

with statutory regulations suggests a new dynamic, however. Until 2004, the use

of subordinate legislation or statutory regulations was generally rather less than

the number of acts but for the five years from 2005 through 2009 there was

substantial increase in the number of statutory regulations promulgated.

Statutory regulations averaged about 12 a year for the years 2000 through 2004

but swelled to about 37 a year for the second half of this decade. It is unclear if

6 Tolofuaivalelei Falemoe Leiataua, “Parliament Independence: A Myth?, paper delivered at 37th

Presiding Officers And Clerks Conference, Perth, Western Australia, July 2006, p.1. Accessed at:http://www.anzacatt.org.au/prod/anzacatt/anzacatt.nsf/ca3cb73640e4b7d4ca2567ee0016638b/a9350eaf1b423cfbca2573fb00265b0e!OpenDocument



27

the increased reliance on regulations was pursued by the Government as a

means of limiting parliamentary inputs or for reasons of perceived efficiency

unrelated to the Parliament. It would appear that, given the Human Rights

Protection Party’s dominance in the Legislative Assembly over this period, the

Government could scarcely be concerned by the time taken by parliamentary

debate or any delaying tactics.

3.3. MPs have a number of legislative functions to perform as lawmakers. They

can help to frame legislation, debate the merits of bills introduced into the

Legislative Assembly, propose amendments, inquire into bills through

committees and, ultimately, vote on the bills before the chamber. Typically in

much of the Westminster world, the bulk of the work associated with these

legislative functions is deferred to direction from the political party to which the

Member belongs. Party imperative in Samoa is somewhat atypical however, as is

addressed in the following section of this report. Nevertheless, even in

parliaments where party policy is paramount, legislation has to be given specific

content that the inchoate promises of a party manifesto lack. Thus, there is

ample scope for Samoa’s MPs to contribute to effective, prudent legislation.

3.4. Private Members bills appear to be virtually unknown since the advent of

strong party politics in Samoa during the 1980s. Procedural impediments have

tended to reinforce Executive dominance of the initiation of legislation. It is not

clear why the publicity benefits for an oppositional party or an ambitious

backbencher of introducing Private Members bills have been eschewed. Some

stakeholders consulted during the LNA process asserted that the lack of Private

Members bills was related to the Government’s control of drafting resources.

The Attorney General’s office, and often the Attorney General as Solicitor

General, is personally responsible for drafting Government bills. Standing

Orders (97) requires that the Clerk receive a “fair copy” of the Private Member’s

Bill before it can be printed for introduction. This requirement may be an

impediment to some who feel they need legal advice before attempting to draft a

bill, although it seems unlikely to be the complete explanation. Nonetheless,



28

consideration should be given to securing independent legal advice for private

Members to assist with engaging in the Parliament’s legislative function.

3.5. Private Member’s Bills are not the only area where independent legal advice

would be of benefit to the Parliament generally. Select Committees often need to

call on drafting advice when reviewing bills and regulations, and may need

independent legal advice in the course of their inquiries. Moreover, in disputes

where the views of the Parliament clash with those of the Government, it is

inappropriate for the Speaker to have to rely on the legal advice of a law officer

who has the Government as his principal client. There appear to be other

internal reasons, treated elsewhere in this report, where it may be important for

the Parliament, its Members and the Parliamentary Staff to have access to

independent (that is, non-Government) legal advice.

3.6. Nevertheless, as the legislative output of the parliament reveals, the demand

for drafting services alone are unlikely to generate a need for full-time legal

support from a dedicated Parliamentary Counsel. It is a rarity even amongst

larger Westminster assemblies for independent counsel to be employed full-time

by the parliament, although secondments are sometimes used to achieve some

detachment from the Executive branch. Smaller parliaments more often need to

secure such advice on an ad hoc basis commercially, For example, in Solomon

Islands, through the UNDP Parliamentary Support Project the Parliament kept a

USP lecturer in Vanuatu on retainer to provide the Speaker with advice, on

request. Notably however, for Samoa to pursue such an option but would require

special budgetary provision, which may be difficult to secure from Government.

This matter needs further exploration since even the Attorney General’s office

has advised that the conflict of interest is undesirable and should be avoided.

Recommendation: Support for the provision of a legal

counsel experienced in parliamentary processes including

the drafting of bills should be sought, perhaps on a three-

year contract, to identify the extent of the need for an

independent parliamentary counsel. At the same time,



29

regional legal advisory support options may be explored to

identify more cost-effective approaches.

3.7. The Legislative Assembly was not in session during the fieldwork portion of

this LNA. Evidence on the use of debates on bills was therefore limited and

anecdotal. Notwithstanding this constraint, there were some shared views that

the debates lacked forensic precision being more directed to ad hominem

challenges and generalised criticisms of policy or partisan “points scoring”.

Much of this advice was offered to support the view that MPs lacked the skills to

delve deeply into legislation. This line was reinforced to some extent by similar

assessments from the bureaucracy and parliamentary committee staff regarding

Members’ contributions to committee inquiries. While experienced parliament-

watchers might feel “it was ever thus”, it is especially important in small

parliaments that Members be able to effectively perform across a wide range of

responsibilities. There simply are not the numbers to allow “free riders” or

narrow specialists. Moreover, as noted previously, even well-established

parliamentary systems have found it desirable to invest in parliament’s human

capital.

Recommendation: It is highly desirable that immediate

assistance be given through an Institutional Strengthening

Programme (ISP) to support a comprehensive on-going

professional programme for MPs and parliamentary staff

foreshadowed by the recommendations in this LNA.

3.8. There is scope for greater inclusion of the public in the legislative function of

the Parliament by Members. Standing Orders (101) provide for bills to be

referred to a Select Committee after the second reading. This is a useful

mechanism for allowing the public to comment on proposed legislation and so to

acquire some direct ownership over it. This procedure has much to recommend

it and the Samoan approach appears to offer more opportunity than in many

parliaments, but does have its limits. The Select Committee has to solicit public

input and provide opportunity for any public input to be incorporated into

recommendations in the committee’s report on the bill back to the Legislative



30

Assembly. The LNA interviews could not establish the effectiveness of the public

consultations during the select committee stage but some advice was received

that public participation was limited. The same limited evidence suggests that

MPs could make more use of committee hearings with more effective

backgrounding in legislative procedures and forensic techniques (see the earlier

recommendations regarding the imperative for capacity development training

for MPs).

3.9. There can be little doubt about the benefits to be had in using the Select

Committee stage as an opportunity for public inclusion in legislation. There are a

number of measures that might be considered to ensure this opportunity is

taken. The LNA was advised that committee hearings are advertised, primarily

by radio, as this is the only effective national network. No evidence was offered

as to the extent to which public submissions are actively solicited in these

advertisements. Some evidence was offered that the opportunities are not well

utilised. The only clear reason suggested was the lack of resources for

committees to travel and so to take evidence away from Apia. It may be that

some public education is necessary to promote a better understanding of how to

make a submission. The current weaknesses in the Parliament’s website is

undoubtedly a contributing factor here. As will be detailed elsewhere in this

report, this site does not encourage an interactive relationship with the public as

it is presently constructed (see below for specific recommendations). From the

perspective of the Members, however, it is highly desirable that the Members

themselves encourage public participation in the legislative process at this stage

if this form of engagement is to be effective.

Recommendation: Members of Parliament should work

closely with the Parliamentary Secretariat to encourage

and facilitate greater public understanding of, and

involvement in, the law-making and committee oversight

processes of parliament. This would include improved use

of civil society organisations and the media.



31

Committee Oversight of the Executive

3.10. On the face of it, the Legislative Assembly has a very robust committee

system for oversighting the Government as it has an extraordinarily large

number of committees for such a small parliament. These committees are:

Business, Standing Orders, House and Electoral Committee

Finance and Expenditure Committee

Health and Social Services, Internal Affairs, Community and Social

Development Committee

Education, Science, Communication and Information Technology

Committee

Justice, Police and Prisons and Land and Titles Committee

Primary Production, Commerce, Industry and Labour Committee

Government Administration Committee

Works, Transport and Environment Committee

Foreign Affairs, Trade and Revenue Committee

Regulations Review Committee

3.11 In addition to the Standing Select Committees, there is an Officers of

Parliament Committee with a stipulated membership of seven to consider

reports from the Komessina o Sulufaiga (Ombudsman) and reports from the

Controller and Chief Auditor (SO 179). Of course, there are ad hoc select

committees for time to time as well. Standing Orders (SO 169-78) provide for 12

Standing Select Committees, with a minimum membership of five and a

maximum membership of eight. Yet, for most parliamentary purposes, there are

there are only 35 Members to staff committees. This is on the assumption that

the Prime Minister, other Ministers and the Speaker are excluded from

substantive committee work; an assumption that is not entirely valid.

Recommendation: Noting the limited number of MPs

available to participate in committee work, consideration

should be given to reviewing the existing committees and

combining/ consolidating them into a smaller number. This

would result in MP’s sitting on fewer committees which



32

would enable them to specialise in the subject matter of the

fewer committees on which they sit.

3.12. A 2005 International Monetary Fund (IMF) report on fiscal transparency in

Samoa expressed its concerns on the Executive influence on Legislative

Assembly committees. The report noted that, “there is some blurring of the roles

of the legislature and executive”. It went on to make the point that “(s)ome

Undersecretaries [now Associate Ministers] are even members of the

Parliamentary Select Committee responsible for oversight of their own

department.”7 As a consequence the IMF recommended that the Parliament

“reconsider the membership of undersecretaries on the Parliamentary Select

Committees responsible for oversight of their own department.” This LNA

received some advice that this specific concern have been addressed but given

the number of parliamentary committees and the absence of any governing party

backbench, the basic problem remains in place. Direct participation on

committees that oversight an Associate Minister’s departmental responsibility

may no longer occur. Nonetheless, the overwhelming influence on all

parliamentary committees is that of MPs whose principal identification is with

the Executive (see below for recommendations on Associate Ministers).

3.13. One area where the committee system might be strengthened, despite the

dominant position of the governing party on committees, would be to establish

something like a “Committee for the Scrutiny of Legislation”. Parliaments in

Australia and New Zealand have set such committees or committee processes in

order to assess bills for their effect on human rights, civil liberties and

democratic fairness. Such a committee could be tasked with vetting all bills for

compliance with human rights obligations, as well as meeting other MDG goals

and providing a report to the Legislative Assembly prior to the Assembly’s

debate on the bill. This would add a level of scrutiny and transparency that may

not eliminate legislative abuse but would work towards informing debate, both

7 International Monetary Fund, Samoa : Report on Observance of Standards and Codes— Fiscal

Transparency Module, IMF Country Report No. 05/70, March 2005, p. 6. Accessed at:http://www.imf.org/external/pubs/ft/scr/2005/cr0570.pdf



33

on the floor of the Assembly as well in the general community. This is would be

an opportunity to make use of an independent parliamentary counsel (see above

for more), as it would be highly desirable that such a committee had the benefit

of legal counsel.

Recommendation: It is highly desirable that the Legislative

Assembly has an effective and independent scrutiny

process for reviewing proposed legislation against

standards for compliance with human rights, socio-

economic impacts (including gender impacts), civil

liberties and democratic fairness obligations. A committee

for the scrutiny of legislation could provide this capacity;

especially if supported by independent parliamentary

counsel.

The challenge of Executive Oversight

3.14. The power relationship between the Parliament and the Executive has

been a mismatch for many, many decades across the Westminster world. The

dominance of the Executive is strongly linked to the emergence of highly

disciplined political parties in parliament approximately a century ago for most

Western parliaments. Political parties arrived late in Samoa, but most

assessments suggest the Executive branch has more than made up for lost time.

A 2010Good Leadership Report by the Pacific Islands Forum Secretariat found

that

“ . . . the Parliamentary Opposition is unable to effectively hold the

Government accountable on the floor of Parliament. This raises a

number of concerns about the dominance of political power and the

exercise of political power in Samoa by a single political party.”8

8 “Samoa”, Country Reports On Actual Leadership Practice Against The Forum Principles of Good

Leadership: Baseline Survey for the Year 2008, Pacific Islands Forum Secretariat, 2010, p 150.(Herein after Good Leadership Report ). Accessed at:http://www.forumsec.org.fj/resources/uploads/attachments/documents/PIFS_Good_Leadership_Report_Samoa.pdf



34

3.15. A major source of this concern arises from the elimination of an effective

backbench on the Government side of the Legislative Assembly chamber. The

Parliamentary Under-Secretaries Act 1988 created a position that is, in essence,

that of a junior minister with a capacity to carry out ministerial duties as

delegated by a minister. The title change to Associate Minister in 2006 actually

helped to clarify further semantically that these positions, while outside Cabinet,

were tied to the Executive branch rather than the Parliament in terms of

identification and career. At the time of the present LNA, every parliamentary

member of the governing HRPP was either a Minister or an Associate Minister,

except for the Speaker and Deputy Speaker. The extent of the Associate

Ministers identification with the Executive has been starkly underscored since

the opening of the Tofilau Eti Alesano Building. Associate Ministers were

advised that they had to choose between their parliamentary office in the Tofilau

Building and their offices in the relevant Ministry. Not one Associate Minister

opted for the parliamentary office (see a later section in this report for more). It

is hard, in traditional Westminster terms, to fathom how genuine parliamentary

scrutiny of the Executive is to occur when this is limited to the very small

number of non-Government members available to staff the oversight committees

of the Legislative Assembly.

3.16. An important point about the general nature of the backbench in

restraining a Government can be made by reference to the Papua New Guinea

Parliament. Section 144 of PNG’s Constitution sets the maximum number of

minsters at no “more than one quarter of the number of members of the

Parliament”.9 In short, this provision seeks to set up an intra-party tension

within the Government between the frontbench and the backbench by

attempting to ensure that they are no worse than of approximately equal size. As

the use of Associate Ministers in Samoa demonstrates, such a provision can still

be circumvented. Nonetheless the principle is instructive. Given that the formal

Opposition cannot defeat a majority Government in the normal course of events,

it is the ambition of the Government’s own backbench that bears the real burden

9 Constitution of the Independent State of Papua New Guinea. Accessed at:http://www.nefc.gov.pg/Constitution%20of%20PNG%20FINAL.pdf



35

of keeping a Government accountable and responsible. It is a rarity today for a

Minister to be held accountable to the Parliament through the traditional

principle of “ministerial responsibility”.10 Almost universally, Ministers who lose

their commission do so by resignation, rather than parliamentary censure. Even

then, normally the resignation is forced as a consequence of pressure from

within the party in responding to public embarrassment in the wake of a scandal

or a perception that the minister has failed in some way. The last Samoan

Parliament appeared to lack this important element of intra-party “opposition”.11

3.17. There may be more than one reason for the Government’s overuse of

Associate Ministers. The description of “overuse” is deliberate as the

Government acknowledges the problem – at least to some extent. During this

LNA the consultant was advised that the Government had a view that every

Minister really only needed one Associate Minister to assist with portfolio

responsibilities. If this had been the case, there would have been seven fewer

Associate Ministers in the Government that went to the polls in March 2011 and,

possibly, that would have left seven backbenchers available for parliamentary

committee work. However, the Government, by its own choice, has exceeded its

own expectations for a reason. Critics have emphasised the presumed need for

the HRPP to share out the “spoils” of victory. The Government explains it in

terms of keeping a potentially restive backbench compliant. Both have more

than a grain of plausibility. As the Forum Secretariat’s Good Leadership Report

observed with regard to the spoils of victory, the Remuneration Tribunal Act

2003 and the Parliamentary Undersecretaries Act 1988 together have enabled the

10 Ministerial responsibility is the Westminster constitutional convention that the Executive,

individually and collectively, are accountable to the parliament for the executive actions of

Government. Individual ministerial responsibility refers to each minister’s to accountability forthe actions (or inaction) of their departments. Collective ministerial responsibility refers to acabinet’s obligations for the collective decisions of Government.11 Prime Minister Tuilaepa recognised this and even indicated that the creation of Associate

Ministers was intended to remove this source of intra-party opposition. Reflecting at the 30thanniversary of the HRPP, he said, “Then all the (Government) Members of Parliament, who were

not in Cabinet, began to behave as a political side who opposed the Government,”.See: “PM warnson negligence”, Accessed at: http://www.samoaobserver.ws/index.php?view=article&id=16498%3Apm-warns&option=com_content&Itemid=67



36

Government very significant control over the rewards of office.12 On the other

hand, as is noted in the next chapter of this report, the connections between fa’a

Samoa and the party system may well be an important factor in maintaining

loyalty and support in the villages.

Recommendation: It is highly desirable that the incoming

Government address the overuse of Associate Ministers.

There is an inherent disrespect to Parliament as an

institution to attempt to prevent any Member of

Parliament but especially members of the governing party

from identifying with the legislative arm of governance

and understanding its role in the process of democratic

governance.

Members and the Millennium Development Goals

3.18. The Samoan Government committed to the Millennium Declaration and

the Millennium Development Goals in 2000 as a member of the United Nations.

The Government also has its own national development priorities. Notably

however, only limited efforts have been made to date to involve the national

legislature as a partner in national development and MDGs achievement. The

majority of development partners still focus their attention on the Executive

(both Ministers and public servants) and civil society. The crucial link between

parliamentarians and development effectiveness has yet to be consistently and

effectively made. The new parliament has an opportunity to strengthen the role

that parliamentarians can and should play in promoting MDGs achievement; in

their roles as representatives of their constituents, law-makers (especially in

relation to the National Budget) and overseers of the Executive.

3.19. A recent attempt to promote the engagement of private Members with

development issues has been the establishment of Parliamentary Advocacy

Groups, which were intended to utilise the prestige of the Samoan Parliament to

promote MDG objectives in the community. Two groups have been created since

2009,one to promote “Healthy Living” and the other to address “Population and

12 Good Leadership Report , p 151.



37

Development”. As might be expected in these early years, the senior bureaucrats

of the relevant ministries and the parliamentary staff who assist the Members

generate the major energy of these groups. In a parliament of Samoa’s small size,

forming such small advocacy groups outside of the main body of the parliament

appears counter-productive and unsustainable. Rather, consideration should be

given to working more closely with MPs to use existing parliamentary processes

such as Question Time and parliamentary committees to engage more

proactively with development issues, including MDGs.

Recommendation: Specific attention should be given to

strengthening the understanding of MPs of

development/ MDGs issues, so that they can more

effectively engage with parliamentary processes to

promote good development, and so they can raise

awareness on these issues with their own constituents.

Specific attention should also be given to supporting

parliamentary committee members to more effectively use

committees to engage with development/ MDGs issues,

especially through the use of public hearings.



38

4.0. Parliamentary Representation and Political Parties

Introduction

4.1. All democratic legislatures are described as “representative” assemblies

because their membership is comprised of political agents elected to act on

behalf of the voters who have elected them. Just what makes them

representative, however, can be subject to interpretation. Liberal democracies

assume universal suffrage, one vote per elector with one value, and universal

rights of participation including the right to stand for election. Samoa is not a

liberal democracy, as participation is restricted at an important point in the

representational process since only matai can serve in the Parliament. Thus,

from a liberal perspective, the degree to which the Parliament actually reflects

the diversity of political opinion in Samoa depends on how effectively the matai

mirror the range of opinion amongst non-matai.

4.2. There appears to be a fairly settled consensus within Samoa in favour of the

reciprocal family ties underpinning the matai system as an effective platform for

the formal representational processes of the Parliament. Other than the 1990

referendum to secure universal suffrage, there have been no significant

extensive, long-term protest movements to dispense with fa’a Samoa politically

in favour of a more liberal system. Insofar as this assumption is well founded, it

presents a problem for any proposals for reforming the Legislative Assembly as a

representative institution. Whatever liberal objectives might be sought, these

will be seen through a fa’a Samoa lens.

Gender and Representation

4.3. The Parliament of Samoa has not had a good track record with regard to

representation of women in the national parliament, at least by liberal standards

or the indicator of MDG 3 which calls for 30% women’s representation in

national legislatures. At the 2011 election, the MDG goal actually suffered a

reversal as the number of female MPs was halved from four to two. Women

candidates only numbered a total of nine from amongst the 158 candidates in



39

total that stood at the 2011 election. There is a small numerical irony in this

result. It equates to 4.1% of the Samoan Parliament, which the Samoa Observer

reported to be the same figure for all women parliamentarians across the

Pacific.13 It is also very close to the 5 per cent figure claimed to be the number of

all Samoan matai titles held by women.14

4.4. Using the gender ratios for matai, an argument might be advanced that the

representational proportions for gender in the Legislative Assembly are

agreeably on target. Yet, they are not accepted as agreeable or on target,

especially if the target is compliance with MDG objectives. Before and during the

2011 election, there were occasional demands that the gender imbalance be

redressed.15 The sticking point in these demands for change was the near

absence of any effective mechanisms for changing the gender composition of the

Legislative Assembly, other than through reserved seats or political party

quotas.16 Given the expected elimination of the reserved seats for the IVR during

the life of the new Parliament, it appears an uphill battle for advocates of

temporary special measures (such as reserved seats) to promote women in

parliament. Noting the strength of the HRPP as a political party, some form of

voluntary party quota could be an alternative, but there does not appear to have

been interest from the HRPP in such a strategy. Short of such measures however,

it is difficult to see present political practice substantially changing in favour of a

greater number of female parliamentarians in the immediate future short of

reforming the matai system itself to give a larger share of titles to females. The

MDG may “propose” but it remains up to the Samoan people to “dispose” on the

matter of a gender balance in parliamentary representation.

13 State of women in politics”, Samoa Observer, accessed at:

http://www.samoaobserver.ws/index.php?view=article&id=19766:state-of-women&option=com_content&Itemid=53 14 Jon Fraenkel, “The Impact of Electoral Systems on Women’s Representation in Pacific

Parliaments”, in A Woman's Place is in the House – the House of Parliament ; Pacific Islands ForumSecretariat, Suva, 2006, p 68.15 See for examples: http://www.rnzi.com/pages/news.php?op=read&id=55393 ;

http://www.radioaustralia.net.au/pacbeat/stories/201009/s3004533.htm ;http://www.samoaobserver.ws/index.php?option=com_content&view=article&id=31508:call-for-&catid=1:latest-news&Itemid=5016 http://pacific.scoop.co.nz/2011/03/undp-usp-panel-discussion-promoting-women/



40

Recommendation: Noting Samoa’s commitment to the MDGs,

including MDG3 in relation to gender equality, specific training

should be provided to MPs on options for promoting gender equality

in Samoa, not only in parliament but more generally. Such training

can be subject-specific or integrated into the broader capacity

development programmes as suggested above.

Representation through the Parliament

4.5. Elected representatives in all parliaments, regardless of gender, have to

balance any number of competing demands on their role and activities in the

legislature. Typically in most Westminster parliaments, the most powerful

tension is between the representation of their constituency and the pressure of party loyalty. While this generalisation remains true for Samoa, the intricate and

convoluted web of connections between both constituency and party and the

particular loyalties invoked by fa’a Samoa have added significant complications

in the last three decades of party-based representation.

4.6. Political parties only began to emerge in Samoa in the mid 1970s as legally

recognized institutions and were not formally incorporated into Samoa’s

parliamentary processes until twenty years later. Yet, despite their late arrival, it

is scarcely surprising that they have so quickly become the dominant feature of

contemporary Samoan politics. Robert Louise Stevenson (known affectionately

in Samoa by his local nickname Tusitala – the “teller of tales”) wrote of the

deadly partisan passion of factionalised aiga-based politics of pre-colonial Samoa

more than a century ago in his Vailima Letters. The continuing importance of

customary social and political processes and their recognition in modern Samoan

governance guaranteed that they would play a central role in the

representational functions of political parties.

4.7. The politics of fa’a Samoa also tend to produce dominant outcomes but

through a different process. Contentious issues are debated carefully and at

length to reach a consensus view. This does not mean all views are incorporated



41

into the final decision but rather, at a certain point, momentum for a particular

outcome has passed a critical point. Opponents of that view withdraw their

objections and accept the dominant view to preserve a sense of unity, perhaps

with a promise of future support on another issue.

4.8. Critics of the recent developments in Samoan governance tend to argue that

the two systems have not found an accommodation that preserves the better

elements of each. Instead, the Government’s dominance in the Legislative

Assembly has been couple with the expectation that its decisions will be treated

as a settled consensus has served to eliminate proper consultation and debate

through the Parliament according to the Government’s detractors. Naturally, the

Government disagrees arguing that its level of electoral support demonstrates

that it is speaking the mind of the nation. This LNA cannot take sides on a matter

of internal politics but it can invite attention to areas where the institution of

parliament, especially its representational and accountability functions, may be

put at risk by excessive Executive dominance.

Political Parties and Election to Parliament

4.9. Political parties did not become a feature of parliamentary representation in

Samoa until 1979 – nearly two decades after independence. The origins of

Samoa’s political parties have emerged more from a desire to contest for

Government than to promote a consistent and coherent ideology or philosophy.

This is not to say that constituency representation is unimportant. Nevertheless,

the representational role of political parties does have a very Samoan flavor,

being heavily influenced by village politics and processes. Indeed, there is an

argument that there is a very close and reciprocal relationship between village-

based politics and party success. This dynamic claims that the success of the

HRPP over the past three decades is less based on the effectiveness of its party

structure than on the desire of village elites (ali’i ma faipule) to ensure they win a

share of influence in Government, regardless of through which party this

influence may be won. This interpretation holds that the village matai back

candidates for the party most likely to form Government and so their

(successful) candidate will be better able to deliver Governmental outcomes to



42

the village. While not universally accepted, this reading does illustrate a

significant ambiguity about constituency interests and the role of political parties

in representing these interests. It also raises questions about the democratic

validity of party manifestos as a basis for influencing representative behaviour

on the floor of the Legislative Assembly even for a tightly disciplined

parliamentary party like the HRPP.

4.10. There is some evidence to support the view that political parties are more

subject to village-based processes than being in control of them to manipulate

the matai system for partisan advantage. At the 2011 election, the HRPP was

concerned not to have its electoral prospects weakened under Samoa’s first-past-

the post electoral system by splitting its constituency vote. Nevertheless, the

HRPP apparently was unable to control the endorsement process to prevent

multiple candidates competing against each other in the same constituency

under the HRPP banner. Indeed, there were 79 HRPP candidates for the 49

available seats in the Legislative Assembly. This LNA was advised that HRPP

notables did attempt to discourage some of these candidates to withdraw in

order to reduce the risk of a divided vote for the party. Nevertheless, the fact

that the central party machinery could not prevent such contests suggests

strongly that village-based processes trumped the party’s own interests.

4.11. Perhaps the importance of this issue is the entrenchment of customary

influences on the formal electoral system. The reasonable pride that Samoans

feel in their culture and heritage has generated support for the retention of

customary political pathways to expressing representational aspirations. Yet,

the alliance of fa’a Samoa and liberal (individual responsibility) voting processes

has proved uneasy for both at times. The 2011 election brought the

consequences plainly into the public domain when three non-HRPP candidates

were ruled ineligible by the statutory processes on the grounds of non-

compliance with the customary obligations.17 This was added through the

17 “Court verdict angers Tautua”, Samoa Observer (on-line) at:

http://www.samoaobserver.ws/index.php?view=article&id=31465%3Acourt-verdict&option=com_content&Itemid=62



43

Government’s 2009 amendments to the Electoral Act 1963 and gave the pulenu’u

the power to validate a candidate’s eligibility to stand as the basis of having met

customary obligations to the village. As critics pointed out, this enabled an

official receiving a Government stipend to decide who could stand against a

Government candidate.18 The opportunity for a conflict of interest is painfully

apparent as is the undermining of the electorate’s right to decide on the

suitability of a candidate and his or her ties to the community.

4.12. The 2009 amendments have been perhaps the most controversial, but the

Electoral Act 1963 has been amended many times to accommodate fa’a Samoa.

Some of these have continued as perceived “aggravations” against the governing

party, even though it is not always clear that HRPP has benefitted by these

changes. Earlier liberal concerns included registration of political parties, the

capacity of voters to move their registration to where this best supports an aiga

candidate, and the customary practice of “treating” known as o’o and momoli.

These are two forms of acknowledging community support (and are expected of

both winners and losers). They are protected and regulated under the Electoral

Act (s 97A) but compliance and enforcement are disputed. Sadly, all sides appear

to acknowledge and accept that fa’a Samoa obligations and practices are abused

to the point of “corruption” but it is not always clear that the “corruption” is seen

as morally or legally a genuine problem.

4.13. The extended family reciprocal obligations that characterise fa’a Samoa

have influenced more than just candidate eligibility expressed so controversially

through s 5(3c) of the Electoral Act . They also gave rise to some electoral

flexibility for voters to change their place of registration. Given the extensive

range of family connections, both matai and non-matai voters have some leeway

in claiming a principal residence. This is established, inter alia, by meeting the

obligations of tautua (service to one’s aiga). The Electoral Act 1963 recognised

tautua as well as service to a village or to the church as bases for changing a

18 “The infamous Sub-section (3) (c) of section 5 of the Electoral Act”, Samoa Observer (on-line)

at: http://www.samoaobserver.ws/index.php?view=article&id=31766%3Athe-

infamous&option=com_content&Itemid=61



44

voter’s place of registration. However, such shifts were manipulated to secure

partisan advantage especially with the advent of universal suffrage and the

emergence of a party system. Whereas matai are obligated to vote in the

constituency where their title for electoral purposes is based, untitled voters are

able to establish voting rights wherever an entitlement exists, whether through

service or residency. The implications of this mobility of registration were the

subject of a 2001 Commission of Inquiry. It found a significant conflict between

the control over a village which the ali’i ma faipule (the village matai) and the

assertion of “foreigners” (those unknown to the village fono) to claim voting

rights through the village.19 This flexibility was circumscribed severely, in favour

of the village processes, by a 2005 amendment to the Electoral Act but did not

fully eliminate the practice of shifting (mainly) non-matai voter registration for

partisan advantage.

Political Parties in Parliament

4.14. Despite a relatively late start, the Samoan Parliament has taken on

significant regulatory responsibility for the activities of political parties in the

Legislative Assembly. It was less than 15 years ago that political parties were

recognised formally as parliamentary influences through Part VIII of Standing

Orders, “Parties, Seating Attendance of Members, Leave of Absence”. Under

provisions that have been in place since 1997, when party recognition was first

introduced in Standing Orders, the Office of the Speaker has been co-opted into

being an enforcer for elements of party discipline. Some of these elements are

fairly standard responsibilities of facilitating the keeping of records and helping

the Legislative Assembly manage its own affairs. Others have become highly

controversial.

4.15. The Speaker must be advised by the party leader on two points – 1) that

the party is eligible to enjoy party status in the Parliament by having a

membership of at least eight Members and 2) that the political party is registered

19 Asofou So’o, “Reconciling liberal democracy and custom and tradition in Samoa’s electoral

system”, South Pacific Futures, ANU Development Studies Network, Bulletin No. 60, December2002 p. 42. Accessed at: http://devnet.anu.edu.au/online%20versions%20pdfs/60/1260Soo.pdf



45

with the Electoral Commission [S.O. 20(1)]. In addition, the party leader is

obliged, under S.O. 20(2) to inform the Speaker of:

(a) the name of the Party;

(b) the identity of the leader and deputy leader;

(c) the Parliamentary membership.

All of this must be done be done before taking the Oath of Allegiance or the

Member “shall be recognised as an independent member for the duration of the

parliamentary term” [S.O. 20(6a)]. Further, the Speaker must be notified of any

changes subsequently. S.O. 20(6b) prevents the MP from changing party status

between elections. It holds that “any member who ceases to be a member of a

party under which he was notified as required by (2c) shall be recognised as an

independent member for the rest of the parliamentary term.”

4.16. One of the consequences of these provisions is that, if any party drops

below the threshold of eight MPs due to defections or by-elections, it loses its

parliamentary party status immediately. There is a literal cost to this. A

parliamentary grouping that falls below the requisite recognised number of MPs

loses not only its party status, it loses the funding allocated to a parliamentary

party. Secondarily, as noted previously (para 3.17), the loss of party status can

also have other repercussions if the party concerned is the Opposition party. Its

leader loses the entitlement to be recognised as “Leader of the Opposition”.

4.17. As they stand, these provisions in the Standing Orders can be taken as

straight forward housekeeping measures to maintain the appropriate records

and to allocate parliamentary resources, such as the financial allowance made to

recognised parliamentary parties. It is only when these activities have been

attached to statutory regulatory measures (see below) that the role of the

Speaker and the regulation of parties in parliament has reached the level of

public controversy. The primary motivation in controlling parliamentary parties

has been to maintain the stability of Government, according to the proponents of

the anti-party hopping measures. Critics are inclined to view these Standing

Orders as an attempt by the HRPP to use regulations to secure its hold on power.



46

The representational value of this regulation is said to rest with keeping faith

with the voters.

Party Hopping and the Role of the Speaker

4.18. According to critics, over time, the regulation of parties and the

commitment of Members to the party under whose banner they entered the

Parliament has reached almost draconian proportions. As noted, the rationale

has arguably been motivated by the same objective as similar New Zealand

legislation – stability – albeit on somewhat different electoral grounds. In New

Zealand, the anti party hopping legislation was devised to deal with a new

electoral proportional electoral system that allocated seats to party lists.

Samoa’s plurality or first-past-the post electoral system does not rely on political

parties to allocate seats. Indeed, those elected as Independents can adopt a partylabel at any time between the election and the Oath (but then are obliged to

remain with that party until the next election unless they return to being

Independents).

4.19. The New Zealand legislation has since lapsed, largely on the grounds that it

was not necessary once familiarity with the operation of the Mixed Member

Proportional (MMP) electoral system became reasonably well established.

Nonetheless, there are acknowledged democratic grounds for regulating party

hopping. A sort of “truth in advertising” is the principal argument. The voters

have a right to expect the candidates to keep their promises, including those

made collectively by the party on the candidate’s behalf. As with the New

Zealand legislation, however, the democratic argument cuts both ways. The

redress for broken promises, including those made by candidates who do not

change parties and the political parties themselves, rests really with the

electorate, not disappointed party elites. Importantly, if the principal

justification for anti-party hopping legislation is the stability of Government

rather than honesty in representation, the effect is to further transfer important

parliamentary roles from the Parliament to political parties, thus adding further

to weakening the institution of Parliament relative to the Executive.



47

4.20. Any ambiguity that the Standing Orders provisions were intended to foil

“party hopping” was removed almost immediately when the Speaker issued a

ruling to enforce them in 1997, forcing those seeking to join another party to sit

out the term as Independents. However, these provisions became especially

controversial in 2009 when nine MPs took preliminary steps to form a new

party. The Speaker ruled that they had breached Standing Orders and the

Electoral Act by attempting to change their party status while Members.20 He

disqualified them from sitting. The matter went to court and the Speaker was

over-ruled on the grounds that the new party did not legally exist and therefore

the MPs could not have changed their party standing.21 The Government then

went on to strengthen legislation to ban “party hopping”. Two bills were

introduced late in 2009 – one to amend the Constitution and the other to amend

the Electoral Act 1963. Both passed in March 2010. In consequence, three MPs

were compelled to resign their seats to re-contest their seats if they wished to

remain in Parliament under a new party banner.

4.21. Critics of the governing Human Rights Protection Party (HRPP) find a

bitter irony in the party’s aggressive pursuit of anti party-hopping mechanisms,

as the HRPP has been an enterprising beneficiary of defections from other

parties in the past. Nevertheless, the practice has been adopted elsewhere in the

region, including in New Zealand. There are arguments for holding candidates to

the pledges made in electoral campaigns so that the voters can have faith in

having made an informed choice. Of course, the same argument can be applied

to party pledges, including those of any Government in any electoral campaign.

Defenders of the anti party-hopping measures argue strongly that these are

responsible for the steadiness of Samoan Governments and therefore of political

stability and its economic prosperity.

20 “By-elections to be called in Samoa for nine vacant parliamentary seats”, Radio New Zealand

International, 31 May 2009. Accessed at:http://www.rnzi.com/pages/news.php?op=read&id=46863 21 “Samoa court reinstates nine MPs, cancels by-elections”, Radio New Zealand International, 2July 2009. Accessed at: http://www.rnzi.com/pages/news.php?op=read&id=47500



48

4.22. The philosophical issue with the 2009 electoral changes are that they go

well beyond attaching some sort of legal obligation to wearing a party’s logo into

an election. The amended Electoral Act appears to challenge even a freedom of

conscience decision by an MP, for an avowed intention to support a different

political organisation can cost an MP his or her seat. An amendment to the

Electoral Act (s 10(m)(i)) provided that if a Member of Parliament holds himself

or herself out during his or her term of office as representing or being a member of:

“A party or organisation that has political aims and is desirous of taking

part in an election where such party or organisation is not registered as

a political party under this Act; shall be disqualified from holding his or

her seat”.22

4.23. Implementing such a sweeping yet substantively indeterminate measure

such as “desirous of taking part in an election” raises very practical issues of

interpretation. The question might arise, for example, whether a ginger group

like the “Tea Party” in the 2010 United States Congressional elections should be

viewed as grounds for disqualification under this new provision. There was

speculation in the US that this group might have become a separate party if

disappointed in its electoral success under the Republican Party banner.

Moreover, it can be asked, who speaks authoritatively for an inchoate political

association that may want to “take part” in an election some time in the future,

regardless of what an MP charged under this provision might believe?

4.24. There are serious grounds for concern with this provision in terms of

natural justice. Natural justice issues are raised because the levelling of the

accusation alone could debar an MP from participating in any aspect of the

Parliament or from receiving a salary until the complaint has been resolved in

court. The Electoral Act provides that in “referring a charge to the Supreme Court

by motion under this section (11(6)), the Assembly may by resolution suspend the

Member charged until the motion has been disposed of.” The presumption of

22 Constitution Amendment Act 2010. Accessed at:

http://www.parliament.gov.ws/Portals/185/Documents/ListOfActs/2010/ENG/Constitution%20Amendment%20Act%202010%20-%20Sam%20&%20Eng%20-%20final3.pdf



49

innocence, it appears, could be suspended by a vindictive Government in control of

a compliant Legislative Assembly.

4.25. In parliamentary terms, the most damaging aspects of this unfortunate and

seriously flawed linkage between the Electoral Act as amended and the Standing

Orders is the imposition they make on the Speaker. The role of the Speaker is to

impartially and independently facilitate the activities of the Legislative Assembly,

not to make statutory decisions on behalf of the Executive. Indeed, the ancient

origins of the office of the Speaker stemmed from a desire to protect the House of

Commons from the Executive. The office of the Speaker has been compromised

unnecessarily by giving the Speaker a significant statutory authority to initiate

action to expel a Member. This authority is incompatible with the Speaker’s

traditional role in the Parliament. Moreover, embroiling the Speaker in enforcing

party discipline (for this objective lies at the very heart of the rationale for anti

party hopping legislation) works against accepting the Speaker as a neutral

umpire for debates on the floor of the chamber.

Recommendation: Consideration should be given to identifying the

most appropriate means of removing the Speaker from the role of

adjudicating on partisan qualifications to sit in Parliament. The

Electoral Act and possibly Standing Orders should be amended to

implement this change. For example, statutory enforcement could

be transferred to the Chief Electoral Commissioner who manages

the register of parties It would disentangle the Speaker,

Parliament’s principal institutional bulwark against the Executive,

from any statutory decision-making regarding partisanship.



50

5.0 Opposition in Parliament

Introduction

5.1. The Westminster system is often described in bifurcated terms as an

approach to governance – Government versus Opposition. Cynics portray this in

extreme terms along the lines that “the Government rules and the Opposition

prepares for the next election.” This view is as incorrect as it is narrow. In

politics as in sport one can only play as well as one’s opponent. The former Clerk

of the Australian Senate, J.R. Odgers, made a similar observation regarding

legislatures noting that, “No Parliament is effective without a good Opposition.”23

A Government that muzzles the voice of its opponents silences those in the

community for whom these representatives speak. It is important that criticism

be answered and proposals considered on their merits to ensure that a

parliament has legitimacy as the supreme deliberative assembly; that in the eyes

of the community, it is the authoritative representative institution of the nation.

5.2. The capacity of an Opposition to operate effectively in parliament is

legitimately an indicator of how well the mechanisms of parliament can be

mobilised to hold a Government to the standards of good governance. Thus,

Samoa faces the same challenge that other Westminster parliamentary

democracies confront – how best to manage, or redress, the unavoidable

“winner-takes-all” tendencies in the Westminster system. This has become more

institutionally problematic with the strengthening party control over the last

three decades. As a result, the Samoan Parliament appears to have lost capacity

to act independently of the Government. In this light, the Parliament of Samoa is

a weaker institution today than it was in 1962.

Opposition in the Samoan Par liament

5.3. Things have scarcely changed since 1982, especially in the last decade or so

where oppositional forces were weak and divided in the Legislative Assembly.

However, should the changed parliamentary environment following the March

2011 elections lead to a more structured formal Opposition in the 15 th

23 J.R. Odgers, Australian Senate Practice(5th ed.; Canberra: Australian Government PrintingService, 1976), p.153



51

Parliament, it will be important that the entire energies of the Opposition not be

taken up in being a shadow Cabinet.

5.4. The contemporary weakness of the Samoan Parliament as an institution can

be traced to a limited awareness of the value of an organised parliamentary

opposition . In the first two decades after independence, before partisan politics,

the Legislative Assembly resembled Westminster early in the nineteenth

century, as it appears that the opposition was almost entirely “parliamentary” in

the sense that there was no shadow cabinet or organised alternative

“Government”.24 In this era, the Government (the Ministry) had to respond to a

Legislative Assembly that was not under its control and with which it had to

negotiate for parliamentary support. A formal Opposition, in the sense of an

alternative Government did not really exist, although of course there were

cliques within the chamber.

5.5. In terms of institutional development, the development of a formal

Opposition from the mid-1980s has been stunted by the rapidity and one-

sidedness of the emergence of the party system in the Legislative Assembly. The

dominance of the HRPP from 1985 so soon after the emergence of partisan

politics in the Parliament may have worked against the development of an

effective oppositional tradition. Over the years, oppositional parties in the

Legislative Assembly have been fragmented, often in favour of joining the

governing HRPP either from constituency pressure or personal ambition.25 The

Opposition have been perceived to be ineffectual in using all the tactics and

procedures available through the Parliament.

24 Asofou So’o,”The Evolution and Consolidation of the Samoan Governing System Since

Independence in 1962”, paper presented at “Executive Power and the Battle for ParliamentaryConfidence in the Pacific Islands” September 2007, Port Vila Vanuatu, p. 9. Accessed at:

http://ips.cap.anu.edu.au/ssgm/papers/conference_papers/2007_executive/AsofouSo'o-EvolutionAndConsolidationOfSamoanGoverningSystem.pdf 25 “Shifting allegiances in Samoa politics”, ”, Radio New Zealand International, 31 May 2009. Accessed at: http://www.rnzi.com/pages/news.php?op=read&id=56146



52

5.6. Former opposition MP, Asiata Saleimoa Vaai, stated rather bluntly as late as

2009, “The Parliament does not scrutinise the Executive.”26 While the evidence

offered to this LNA can only regarded as anecdotal, there appeared to be a

general agreement that non-Government MPs did not fully effectively utilise

opportunities such as question time, debates and committee inquiries to hold the

Executive to account. It has been said that oppositional parties have not

infrequently even failed to ask any questions during the time allocated for

information questions. In short, the Government in Parliament has gone from

strength to strength over the past quarter century, but there has not been a

concomitant building up of an oppositional culture.

5.7. Oppositional parties have argued that they have been frustrated in their

parliamentary role by the party of Government using its numerical muscle to

employ tactics that have unfairly undermined oppositional attempts to ask

questions and participate in debates effectively. Interrupting or taking points of

order to waste the limited time available to oppositional members was said to be

a common tactic.27 Limiting opposition time by managing sitting days and the

like have also been mentioned. Hard data detailing these claims is difficult to

find but the claims are persistent. The Good Leadership Report quoted the

finding of a 2005 International Parliamentary Union (IPU) investigation into

Samoan parliamentary proceedings to suggest that there had been “unfair

treatment” of the non-Government MPs with an implication this had been

continuing.28 As well, the present Speaker has stated publicly that the Executive

had manipulated Government business to restrict the number of sitting days

contrary to the wishes of the Parliament as expressed through the Business

Committee.29

26 ‘Opposition calls for “checks and balances”’, The Courier, Issue Nº XII (July/August 2009).

Accessed at: http://www.acp-eucourier.info/Opposition-calls-for.797.0.html 27 See, for example, Good Leadership Report , p 166. 28 Good Leadership Report , p. 161.29 Tolofuaivalelei Falemoe Leiataua, “Parliament Independence: A Myth? p.2. Accessed at:

http://www.anzacatt.org.au/prod/anzacatt/anzacatt.nsf/ca3cb73640e4b7d4ca2567ee0016638b/a9350eaf1b423cfbca2573fb00265b0e!OpenDocument



53

The Formal Opposition

5.8. The regulation of political parties and of the standing of party members in

the Parliament through Standing Orders has also impacted on the formal status

of the Opposition in Parliament (see Section 4 above for more). The redrafting

of Standing Orders in 1997 provided for the position of a “Leader of Opposition”

but with a catch. It defined the Leader of Opposition as the “Leader of the largest

party . . . not in Government” (S.O. 21). In order to be recognised as the Leader of

Opposition, the Member had to be a member of a recognised parliamentary

party; that is, of a group with at least eight MPs in the Parliament. However, S.O.

20(1) stipulates that to be recognised as a parliamentary party the group must

have “not less than eight” Members in the Parliament, as well as meeting a

number of other conditions. Notably, no party other than the HRPP had more

than seven MPs in the Legislative Assembly since about October 2006 until the

2011 election. As a consequence, there was no formally recognised party other

than the HRPP in the Samoan Parliament and, concomitantly, no Leader of the

Opposition until the 2011 election. A presumed consequence was that since

there was no Leader of the Opposition, there was no formal Opposition.

5.9. The practical consequences of this circumstance are addressed below but its

symbolic significance was enormous and was the subject of recurrent commentary throughout the life of the last parliament. Changing the party status

threshold in Standing Orders would remove this irritant rather easily. It may be

significant that the provisions of the Samoan Standing Orders are modelled on

those of New Zealand, yet the figures for party recognition are substantially

divergent in relative terms. The New Zealand figure is six, or 5% of the size of

the House of Representatives whereas the Samoan figure equates with more

than 16% of the Legislative Assembly. However, a proposal to reduce the

number required was reportedly opposed by Prime Minister Tuilaepa Sailele

Malielegaoi on the grounds that having many smaller parties could create

political instability, which would be detrimental to development. Just why this

would be the case is difficult to discern, unless a formal Opposition had a more

significant impact on the operation of the Parliament of Samoa than has been the

experience elsewhere.



54

Recommendation: Regardless of whether the linking of the

two Standing Orders (S.O.21 and S.O. 20(1)) was intended

to have the effect that it has had on parliamentary

Opposition, the consequences ar e now clear. It is

recommended that the threshold for recognition of

parliamentary party status be revised by reducing to a

more “responsible” lower number.

5.10. Although the idea that a small and fragmented Opposition could be a

source of instability is rather difficult to embrace, the more significant question

might have been; “does the absence of a formal Opposition or Opposition Leader

make a difference to the operation of the Parliament?” The answer for this in a

constitutional monarchy such as Australia or New Zealand would have been

“yes” – at least in constitutional terms. It is important that the monarch not be

without an adviser responsible to and through the parliament. For this reason,

the Leader of the Opposition plays a potentially significant role as the head of the

alternative Government. This is recognised in the Order of Precedence for state

occasions where the Leader of the Opposition occupies a particular and elevated

place behind the Presiding Officers and Ministers, but before other MPs. Given

that Samoa is not a constitutional monarchy and that there is an ambiguity as to

the effect of “advice” to the Le Ao o le Malo, one must look elsewhere for the

importance of a Leader of the Opposition and formal Opposition in the Samoan

Legislative Assembly.

5.11. Standing Orders mention the Leader of the Opposition at two points. S.O.

181 gives the Leader of the Opposition (or another Member nominated by the

Leader) a seat on the Privileges and Ethics Committee and S.O. 194 provides a

consultative role in the appointment of the Clerk and the Deputy Clerk of the

Legislative Assembly. These provisions make the point that oppositional

opinion in the Parliament should be recognised and incorporated into the

procedures of Parliament where the Parliament as an institution needs to

demonstrate general agreement on the integrity of its operations. It is necessary

that this non-partisanship be visible to the public and thus it is highly desirable



55

that oppositional forces in the Parliament be seen to be included. A formal

Opposition provides a vehicle for this demonstration of inclusiveness, which,

incidentally, also helps to distinguish the Parliament institutionally from the

Government.

5.12. Typically, in Westminster parliaments, the Leader of the Opposition enjoys

a favoured role in Question Time, in moving motions of censure and in

responding to statements by the Prime Minister. As well, the recognised

Opposition can enjoy similar claims on parliamentary time and resources. In

many cases, the formal Opposition can command special recognition during

election periods in the way of briefings from the bureaucracy. However, it has

been argued to this LNA that the absence of a formal Opposition had made little

difference in this regard, as such practices were not observed routinely within

the Samoan Legislative Assembly in any case. As noted above, the oppositional

influences in the Parliament have not been protected by procedure or respected

by the Government benches and so have not been accorded a parity of esteem in

the legislative process.

5.13. The Speaker and some Ministers have offered alternative explanations to

the LNA for these reports of oppositional ineffectiveness. The principal basis for

rejecting the Opposition complaints is said to be the Opposition’s inexpert use of

parliamentary procedure. There is some evidence from sources other than those

connected with Government to validate claims that mechanisms such as question

time and committee inquiries have been poorly exploited by oppositional

parties.

5.14. This LNA is unable to resolve this dispute over the abuse of parliamentary

procedures other than to note that the complaints have been on-going for many

years and that reputable bodies such as the IPU and the Forum Secretariat have

supported them to some degree. Some procedural changes offered elsewhere in

this report may well help to remove some basis for misunderstandings or for

procedural abuse. However, whatever else might be at issue in the use of

procedure in the Legislative Assembly, there is also a sense of agreement that



56

Members need on-going support in understanding and in using parliamentary

procedure. Virtually all respondents, regardless of their role in the Samoan

political process expressed support for improving the institutional capacity of

opposition MPs.30

5.15 Given the significant change that has occurred with the recent election, it is

vital that early attention be given to a special training/professional development

programme for members of the Opposition. The Opposition has been too small

and too ineffectual for too long. Remedial capacity-building support for

Opposition Members is needed urgently and the sooner the better to start

rebuilding confidence in the integrity and identity of Parliament. It should be a

matter of priority to provide an appropriate grounding for Opposition Members

in the practical use of parliamentary procedure and processes, including effective

committee work.

Recommendation: In light of the improved numbers but

limited experience of the post 2011 election Opposition, it

should be a matter of high priority to provide an

appropriate grounding in the practical use of

parliamentary procedure and processes including effective

committee work.

5.16. For the past five years, critics have maintained that Standing Orders have

been used to make the Parliament the handmaiden to partisan ambitions, rather

than creating an arena where the strength of Government can be called to

account on somewhat equalised terms by an effective formal Opposition. The

recent election may have neutralised this issue since the Tautua Party has

exceeded the threshold of eight for recognition as a parliamentary party

comfortably. However, the recent history of oppositional parties does not instil

confidence that the present circumstances will necessarily endure over the life of

the Parliament. It is inappropriate for the effects of the regulation of the status of

30 Even Prime Minister Tuilaepa has stated publicly his belief that the Opposition needs to be

strengthened, See: “Opposition moves not a worry, says PM”, Samoa Observer, accessed at: http://www.samoaobserver.ws/index.php?option=com_content&view=article&id=11939:opposition-moves



57

political parties to overhang the recognition of a formal Opposition both for the

symbolic reasons noted above and against the prospect of developing more

practical methods for engaging the Opposition procedurally in the Legislative

Assembly.

Recommendation: If the previous recommendation regarding

parliamentary party status (para 5.9) is not adopted, a case

remains for ensuring that there is a Leader of the Opposition, to

fulfil the responsibilities of the that office under other Standing

Orders. The position of the Leader of the Opposition could be

maintained by adding the words “or grouping” after the words

“Leader of the largest party” in S.O. 21.

5.17. The change proposed in the paragraph above would not cut across the

parliamentary recognition of political parties, which may be important for other

administrative reasons. For example, party status recognition does entitle such

associations to a share of the money allocated under the Standing Orders of

Parliament for the support of political party offices. This remains of legitimate

concern to the Parliament on the grounds of financial responsibility.



58

6.0 Parliament and The Executive

Introduction

6.1. As with many Westminster parliamentary systems, the Samoan Executive

dominates the legislative process to a very high degree. There are general

reasons for this based on the nature of the Westminster system especially that

the elected Executive is drawn from the membership of the Parliament on the

basis that it has the support of a majority on the floor of the chamber. Thus, as is

true elsewhere, the party that wins a majority of seats selects from amongst its

parliamentary representatives the ministers to form a Government. In turn, the

Ministry controls the Parliament using the same parliamentary party discipline

that gave it Executive power. Naturally, there are also Samoan variations to this

general model. As noted throughout this LNA, the Samoan Executive branch is

exceptionally strong even by the general standards of Westminster-based

Parliaments. Even the present Government acknowledges that its position is

exceptional and requires a strong opposition on general democratic grounds.31

6.2. Given that the Executive is rather over-powerful (and, according to the

critics, over-powering) relative to the Legislative Assembly, this LNA did not look

into improving the legislative performance of the Government as it operates

inside the Parliament of Samoa. This is not to say there was not scope for such

an enquiry. Anecdotal evidence offered to the LNA indicated that the

Government’s legislative programme has often been ad hoc, at least in

implementation. The order and priority of legislation was said to depend more

on the energy and diligence of the minister responsible for the bill than on a

legislative calendar or even a whole of Government strategy for the

parliamentary session or term. Rather, the focus in this section is on how the

strength of the Executive in the Legislative Assembly impacts on the capacity of

the institution of Parliament.

31 Prime Minister Tuilaepa is reported as saying that “a good opposition party is vital in

Parliament to strengthen debate which ultimately benefits the people of Samoa.” See: “Oppositionmoves not a worry, says PM”, Samoa Observer (on-line), accessed at:http://www.samoaobserver.ws/index.php?option=com_content&view=article&id=11939:opposition-moves



59

The Head of State and Council of Deputies

6.3. Although the Constitution stipulates that the Head of State (Le Ao o le Malo)

is essential to the definition of the Parliament, the role of the Head of State is

limited and may not even be required to complete the legislative process. Article

60 of the Constitution states that, “No bill shall become a law until the Head of

State has given his assent thereto”. Yet, there is another provision that could

undermine this apparently unambiguous constitutional declaration. The

situation for circumventing assent has yet to arise. However, it was suggested

during public discussion of the controversial bill to legislate for a casino that Art

26 of the Constitution would allow a bill to be deemed accepted by the Head of

State if no action had been taken to give (or refuse) assent after seven days,following advice from the Prime Minister to assent to the bill in question. In

effect, the bill could be passed without explicit assent from the Head of State.

This interpretation of Art 26 was reasserted to the LNA by no less an authority

than the Attorney General. While this interpretation could be tested in court

should the occasion arise, to date, no Head of State has refused assent and the

consensus seems to be that it is unlikely ever to happen.

6.4. The institution of the Council of Deputies again demonstrates the intriguing

complexities linking fa’a Samoa and the formal constitutional system. The

Constitution provides that the Council of Deputies should consist of up to three

persons “elected by the Legislative Assembly” (Art. 25). As noted previously

(para 1.5), there is a general expectation that this Council will be filled by Tama a

aiga, but this has not been invariably the case. In part, the paucity of eligible

Tama a aiga candidates is leading to the breakdown of the original expectations.

Some believe that this difficulty and the election of non- Tama a aiga to the

Council of Deputies will ultimately lead to the abandonment of the expectation

that the Head of State will be a Tama a aiga. The constitutional role of Council of

Deputies is to act for the Head of State when the Head of State is abroad or

incapacitated (Art. 23). The Deputies also provide a separate source of advice to



60

the Head of State, although this is more in the nature of a sounding board than

the authoritative advice given by the Prime Minister.

6.5. The limited role that the Le Ao o le Malo can play in the Samoan political

process may not be significantly different from that of the head of state in other

jurisdictions, such as New Zealand or Australia, where the constraints on the

reserve powers of the head of state are substantial. However, somewhat

ironically, it does appear to remove one of the possible constraints on the abuse

of Executive power. In some national systems, the Head of State may refuse to

assent to constitutional amendments that infringe on civil liberties or rights.

Such powers are rarely used, since they involve a clash between an elected

legislature supporting a democratically-selected Executive and a (usually) non-

elected head of state. Nevertheless, the threat of such a veto often serves as a

line in the political sand that acts as a warning against imprudent action.

Constitutional Change

6.6. Constitutional change in a practical sense does not need to involve either

action by the Head of State or by the people. The Constitution of Samoa may be

amended “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” (Art. 109). As with

ordinary bills, constitutional amendments are submitted to the Head of State for

assent but, as with ordinary legislation, this is either assumed or, according to

the Government’s interpretation, can be effected without assent. The

Constitution makes two exceptions. A bill amending, repealing or adding to the

provisions of Article 102 (regarding the alienation of customary land) must go to

a poll of the electors before it is submitted to the Head of State. The second

constitutional provision that cannot be changed without a poll of electors is Art.

109 itself, which protects Art. 102.

6.7. The extent of control that the amendment process vests in the Legislative

Assembly can be seen in other provisions of Art.109. These state that a

Speaker’s certificate that a constitutional amendment bill has been appropriately



61

passed is “conclusive” and cannot “be questioned in any court” (Art. 109). Once a

political party has two-thirds control of the Legislative Assembly, it has virtually

complete control of the Constitution of the Independent State of Samoa. Prime

Minister Tuilaepa has indicated that he was fully aware of the significance of this

control, but refers to it more as the “high level of confidence” of the people in the

HRPP.32 The Opposition and the Government’s critics emphasise the risk to

limited government that this power confers.

6.8 The Forum Secretariat’s Good Leadership Report emphasised the risks rather

than the public confidence implications of this control over constitutional change

in reviewing the Samoan Government. It referred to the stripping of the

constitutional protections for the Controller and Chief Auditor through the

Constitution Amendment Act (No. 3) 1997.33 The change was driven by irritation

with the Chief Auditor’s report in 1994, which found corruption for which it held

the Government responsible. As the Controller and Chief Auditor is an Officer of

Parliament, Constitution Amendment Act (No. 3) 1997 was reasonably regarded

as a slap at the independence of Parliament, as well as an apparent attempt to

bring the office of the Controller and Chief Auditor to heel. The Constitution

Amendment Act 2010 that restricted even the preliminary steps toward freedom

of association (in forming a new party) can be regarded as another example of

the pernicious effects of partisan use of unrestricted control of constitutional

change.

Government Contr ol of the Legislative Assembly

6.9. The Executive has dominated the Legislative Assembly almost completely

since the advent of party politics in 1979, as has been noted previously in this

report. The fairly standard mechanisms of party discipline to guarantee

partisan control of the votes on the floor have been augmented by other means

to cement the dominance of the HRPP both in Government and in the Parliament.

An HRPP-Government created the junior ministerial positions now known as

32 Tupuola Terry Tavita, “Tuilaepa calls on government to work twice as hard after win in

Samoan elections”, Pacific Scoop., Accessed at “ http://pacific.scoop.co.nz/2011/03/tuilaepa-calls-on-government-to-work-twice-as-hard-after-win-in-samoan-elections/ 33 Good Leadership Report , p 152.



62

Associate Ministers in 1988 and then amended the Constitution in 1991 to

increase the size of Cabinet from eight to 12. The first change has been extended

over time to eliminate a backbench all together from the governing party side of

the chamber. The second change fortified the number of positions committed to

maintaining the Government by 50%, as well as having the effect of

strengthening the frontbench against the backbench. More recently these have

been strengthened with the introduction of laws and additions to Standing

Orders to prevent “party-hopping”.

6.10. Party dominance on the floor of the Legislative Assembly is to be expected

in a Westminster system, but perhaps not the extent and longevity of control by a

single party that has occurred in Samoa. While critics may have some

justification for believing that successive Governments have used the levers of

legislative power to tip the scales in favour of the HRPP, the electoral success of

the HRPP has provided the capacity and public support to do this. More

important, from the perspective of the Parliament’s responsibility to hold the

Government to account and secure transparency, has been the Government’s

control “off the floor” of the Assembly. As has been canvassed elsewhere in this

report (see para 3.12), the Government’s numbers have given control of the very

committees that are the Parliament’s principal mechanism for providing the

transparency, which in turn is the basis for public accountability.

Executive Dominance Outside the Legislative Assembly

6.11. The creation of a senior executive service in 1989 has been as

controversial in Samoa as elsewhere. The Public Service (Special Posts) Act 1989

separated the appointment of ministry chief executive officers from the Public

Service Commission and, in effect, made these positions contracted ministerial

appointments (technically through the office of the Head of State, acting on the

advice of Cabinet).34 It is significant according to the Act’s critics that the

prescribed period of appointment is substantially less than that of a term of

Parliament. These three-year contract appointments are alleged not only to

secure the compliant support of the CEOs who must rely on the goodwill of their

34 Section 12 of the Public Service Act 2004 which has preserved the change originally madethrough the Public Service (Special Posts) Act 1989.



63

minister for renewal but also, through them, those under these CEOs who are not

subject to the Act’s contract renewal provisions. In the words of the Samoan

political scientist Asofou So’o, this has become a source of substantial “political

patronage” for the Government and the party over “the most influential people in

the public service”.35

Recommendation: While there is a debate over the value of the a

contract senior executive as a means of securing a more politically

responsive public service, the limited tenure of the Samoan

contracts clearly has made the senior levels of the bureaucracy

politically contentious for being too responsive. It is desirable that

the length of such contract appointments at least equal if not

exceed the normal life of a parliament.

Non-Legislative Restraints on the Executive: the Judiciary and the Press

6.12. Given the dominance of a single political party over so long a period of

time, the influence of the elected Executive (Government) over the bureaucracy

and the Legislative Assembly is, perhaps, to be expected. It is unfortunate that

this power has been entrenched and expanded by constitutional, statutory, and

legislative rule changes in a direction that has significantly undermined the

capacity of the Parliament to fulfil its role of democratic restraint of the

Executive. Publicly, recent Governments have acknowledged the need for more

effective opposition in and through the Legislative Assembly, even while their

actions have conduced to a quite different result. As a consequence, the principal

means of restraint and transparency have rested with two non-legislative

institutions – the judiciary and a free press.

6.13. The Samoan judicial system is divided into two separate strands. There is

the statutory interpretation strand, which is composed of District Courts, the

Supreme Court and the Court of Appeal. This operates primarily on common law

principles, but takes into account customary law as well, especially in cases

35 So’o,”The Evolution and Consolidation of the Samoan Governing System Since Independence in1962”, p. 17.



64

arising from the decisions of village fono. The second, and many argue more

important, strand is the Land and Titles Court, which adjudicates disputes arising

from customary law over matai titles and traditional rights to land. The

importance of fa’a Samoa, the village fono and matai titles has been a recurrent

theme throughout this report. Hence, many regard the Land and Titles Court as

the main contributor to political and social stability in Samoa. If so, it is

substantially grounded in the willingness of Samoans to take disputes to court.

6.14. The judicial system of Samoa appears to enjoy public respect and

confidence. It is also much used. In light of the significant linkages between the

customary law and contemporary Samoan life, it is not surprising that litigation

is viewed as a solution to issues that elsewhere might remain in the domain of

politics. The Forum Secretariat’s Good Leadership Report observes that even

Speaker’s rulings have been challenged in court.36 This sort of involvement by

the courts in the political process has its risks as the decisions themselves can

become politically contentious. This has occurred, it appears, increasingly, as a

result of the courts having to rule on politically contentious laws. The recent

spate of public debate over the Supreme Court ruling on the Electoral Act’s

section 5(3c) is a very vivid exemplar. The long-term risk for the judicial system

is that making decisions on legislation that is perceived to have a partisan bias

can compromise the public’s regard for the independence of the judiciary.

6.15. A free press is vital to democracy anywhere. Samoa’s media appears to be

independent and free. Major elements of the media appear to have been

accessible, active and reasonably neutral in promoting public information and

debate on the politics of Samoa. This sector of the political process has been the

most significant in keeping the public gaze fixed on the Government and its

activities. There have been some complaints that the Government has attempted

to restrict access to some Government inquiries and reports but this does not

appear to be a systematic attempt to muzzle the media. Perhaps more seriously

from a parliamentary perspective, the flow of information from the Parliament to

the media is unnecessarily slow. These concerns are not a one-way street,

36 Good Leadership Report , p 161.



65

however, as the media’s interest in the operation of the Legislative Assembly

appeared rather low to this LNA. If so, the demand for more information from

the Parliament may be a contributing factor in the failure of the Parliament to

provide more information to the media. These issues are treated in a later

section of this report on the internal administration of the Parliament.

6.16. During the in-country consultations for this LNA, the consultant was

unable to make contact with local civil society organisations. The consultant

subsequently emailed SUNGO, the national peak body for CSOs, but was unable

to obtain feedback on the engagement of civil society organisations with the

Samoa parliament. Noting the important of hearing from a diverse range of

voices, the lack of such feedback into this report is regrettable despite an

understandable preoccupation, perhaps, with the election and its aftermath. If

an institutional strengthening project is designed for the Parliament subsequent

to this LNA, it is strongly urged that civil society feedback forms part of the

design process.



66

7.0. The Structure and Administration

of the Legislative Assembly

Introduction

7.1. Typically for Westminster parliaments, the Speaker sits at the head of the

parliamentary administration and is, in effect, the “minister” responsible for the

administrative activities of the Parliament. The Clerk of the Parliament serves as

the Permanent Secretary or CEO. Politically, the Deputy Prime Minister is the

minister formally charged with dealing with the administration of the Parliament

in the Cabinet and so presents the budget, staffing and other requests to the

Government for executive approval. Currently, in addition to the Clerk, there are

63 full-time, and an unspecified number of part-time, staff to service the

Legislative Assembly as well the facilities and grounds of the Parliament. Their

duties are apportioned amongst two Legislative Departments – the Office of the

Speaker of the Legislative Assembly and Office of the Clerk of the Legislative

Assembly.

Office of the Speaker of the Legislative Assembly

7.2. The Office of the Speaker has three staff (two secretaries and a driver). Its

sole function is to provide “administrative support services to the Speaker of the

Legislative Assembly.” While the size of this office may be small, the official

functions of the Speaker are extensive and significant, both in terms of the

Parliament and the general process of the governance system. To illustrate, the

Speaker’s formal duties include: receiving all Messages from Le Ao o le Malo

(Head of State) for the Legislative Assembly; chairing the powerful House

Committee; approving notices of motions; granting recognition of political

parties as Parties in Parliament (and ruling on their membership); authorising

the release of Journals and records of the Legislative Assembly to persons or

parties other than members of Parliament; appointing parliamentary staff other

than the Clerk and Deputy Clerk; and much more. These are in addition to the

well-established Speaker’s general duties in the Chamber. The Speaker does

enjoy some support from the Office of the Clerk for meeting some general

administrative responsibilities. The Corporate Services Section of the Office of



67

the Clerk carries out the Speaker’s instructions regarding the administration and

security of the parliamentary precinct and its buildings.

Office of the Clerk of the Legislative Assembly

7.3. The function of the Office of the Clerk is “to provide Parliament and its

members with quality and timely support in the Operation of Parliament and the

Legislative Assembly as prescribed by law and the Standing Orders of

Parliament.” The Clerk and the Deputy Clerk of the Legislative Assembly are

appointed by the Head of State for three-year terms on the recommendation of

the Speaker, after consultation with the Prime Minister and the Leader of the

Opposition. This method of appointment raises concerns regarding the

protection of the independence and professionalism of senior parliamentary staff treated later in this report (para 8.3).

7.4. The Speaker on the recommendation of the Clerk makes all other

appointments. Salaries and other remuneration are set by the same process as

the appointment processes. That is, those for the Clerk and the Deputy Clerk are

determined by the Prime Minister, on the recommendation of the Speaker and

the salaries and other remuneration of the other officers shall decided by the

Speaker on the recommendation of the Clerk. The Office of the Clerk has a

number of sections to meet the Clerk’s responsibilities for the administration of

the Legislative Assembly’s personnel, functions and assets. These are:

The Maota Office

Select Committees Office

The Reporting and Translation Section

The Parliamentary Library

Printing Services; and

Corporate Services Section

The Maota Office

7.5. The Moata Office comes under the Clerk and its primary role is to provide

Chamber support. It provides advice to the Speaker and Members on

parliamentary procedure and practice, prepares of the Order Paper, vets all



68

material going into the Chamber for compliance with Standing Orders and the

like. In addition to chamber support, the duties of this office are essentially those

set out in law and Standing Orders (Parts XI and XII). They include providing for

the translation and printing of the Journals, the Official Report of Proceedings,

Select Committee reports and any other papers presented to the Assembly. The

Clerk shall also be responsible for “the translation and printing of Bills for

introduction to the Assembly and Bills certified for assent by o Le Ao o le Malo

and shall have the general direction and control of the Legislative Department

and all officers employed therein.”

Standing Select Committees Office

7.6. The Standing Select Committee Office is headed by the Deputy Clerk and hasa staff complement of both senior committee staff and permanent support staff.

This Legislative Assembly department provides select committees with advice on

the conduct of inquiries and administrative support for the committees. This

support includes assistance at all stages in the course of a committee’s inquiry.

These responsibilities are consistent with general parliamentary practice in

Westminster parliaments. They include:

Assistance in determining areas of inquiry and developing terms of

reference in line with the resolution of the Assembly;

Supply of the secretarial services for holding an inquiry including the call

for submissions, organisation of meetings, the attendance of witnesses,

and related activities;

Procedural advice to chairmen and members of select committees on

applicable parliamentary law, practice and procedures during an inquiry;

Provision of such information as required by committees;

Assistance in summarising and analysing evidence presented to Select

Committees; and

Assistance with drafting of reports. Co-ordinating the investigations and

inquiries of Select Committees and their reporting back to the Assembly.



69

The Select Committee Office is responsible for maintaining the records of

committee inquiries as well as administering their archival and retrieval needs.

This office has experienced difficulties in making committee reports available in

as timely a fashion as it would wish. In addition, some advice was offered that

the quality of committee investigations could be improved but this appeared to

be more a reflection on Members’ skills than the service provided by the Select

Committee office. Recommendations elsewhere in this report address the

training needs for the parliamentary staff in this vital office and the need for

improved information sources to develop committee capacities especially in

servicing committee oversight functions.

Reporting and Translation Section

7.7. This section has two distinct divisions under its general rubric – theHansard Division and the Translation Division.

Hansard Division

7.8. The duties of this division are essentially the same as the production

of Hansard in parliaments elsewhere. It provides the “Official Report of

Debates” in the Legislative Assembly being as close as practicable to a

verbatim recording of the Assembly’s proceedings. The Samoan Hansard is

produced in two languages as required by the Constitution [Art 54 (2)]

regardless on the language of the debate. Thus, this department works

closely with the Translation Office.

7.9. There are three stages in the production of the Hansard – copies for

vetting by Members’, issuing the Daily Hansard; and bound volumes for a

session. The transcribed and edited copy sent to Members for correction

must be return within four days or it is deemed to be correct. Any disputes

as to content or changes are referred to the Speaker for a ruling. The

corrected version of the Members’ proofs are issued as a “Daily Hansard” in

a form that includes two to three days of sittings together. These are

expected to be available “in print to Members approximately 7 days after

the debates take place.” The Daily Hansard does not appear to be available



70

to the media or the general public, however. The bound version of

Hansard, which is to be provided to Members “not less than one month

before the commencement of the next ensuing meeting” is publicly available

for sale from the Speaker’s Office but copies are distributed free of charge to

libraries.

7.10. Parliament’s dissemination of information is uneven. Reports are said to

be frequently late and difficult for the public to access. As noted above, the

production of Hansard appears to be kept “in-house”, and is not accessible until

well past its newsworthiness for the media or the public. This appears to be as

much a matter of the costs of printing, distribution and the like, as a desire to

keep these records out of the hands of either the media or the public.

Unfortunately, old news is often cold news, with little public interest. The

original, and continuing, fundamental rationale for the Hansard is the public’s

right to know. It should be publicly available as soon as possible.

Recommendation: The Daily Hansard should be made available

immediately after the text is proofread for technical errors and

approved. This need not be in printed copy but could be made

available electronically through the Parliament’s website.

Translation Division

7.11. This small division plays a very critical role in the parliamentary

process. Art 54 of the Constitution requires that:

(1) All debates and discussions in the Legislative Assembly shall be

conducted in the Samoan language and the English language.

(2) The Minutes and the debates of the Legislative Assembly, every bill

introduced therein, every paper presented thereto, and all minutes of

proceedings, minutes of evidence, and reports of committees of the

Assembly shall be in the Samoan language and the English language.

7.12. Thus the Translation Division must translate into all “Bills,

Regulations, Parliamentary Papers and Reports” introduced into the

Legislative Assembly into one or the other language as necessary as well as



71

any other documents required by the Clerk of the Legislative Assembly from

time to time. In addition, the Translation Division provides for

simultaneous translation of all debates and committee hearings. The

obligations of this office demand a very high level of proficiency in both

languages with regard to vocabulary, grammar and syntax. In addition to

generational changes in usage of both Samoan and English, the

parliamentary translators must cope with occasional legalistic lapses into

Latin and ecclesiastical forays into Greek as many MPs have strong church

backgrounds in Christianity. It is difficult to make a recommendation on

this issue as the Legislative Assembly staff is well aware of the difficulties

that generation change pose for maintaining these translation skills.

Parliamentary Library and Parliamentary Research Capacity

7.13. This Library Department has two full-time librarianship qualified staff

members. A full-time Information Technology officer, who comes under the

direction of the Maota Office, also provides assistance with electronic access to

information. The facilities of the library are quite limited and, apart from a small

book collection and donated materials including journals and reports from other

parliaments, consist mainly of computers for internet searches. There is no

reading room per se and no collection of daily papers, professional journals and

the like to attract Members or staff to the Library. The Library also serves as the

archive for parliamentary reports and papers. Rather than investing in hard

copy resource, options should be explored for strengthening the online resources

of the Library. In Cook Islands, the Western Australian Parliament which is

twinned with that Parliament has allowed the Cook Islands parliament access to

their online intranet (through sharing of their password) which provides them

with access to a range of information resources for free.

Recommendation: The Library Department should work with the

Library of the Tasmanian twinned parliament to identify

sustainable, cost-effective options for strengthening the

information resources available to the Library and members.



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7.14. The Office of the Clerk has identified a need for a parliamentary research

service to provide better information to, and through, the Parliament. Cutbacks

to funding elsewhere have endangered regional resources such as PacLII, making

it necessary for the Parliament of Samoa to rely more on its own capacity. Thus,

the proposal for an in-house research service has merit. Weighing against it are

the costs, the apparent lack of demand and the absence of the protection of a

career service for parliamentary staff. There have been proposals for a regional

network for information sharing and research. In that respect, the Australian

and New Zealand Parliaments and UNDP launched the online Pacific Parliaments

Network in February 2011,37 which is intended to provide free regional research

services to Pacific legislatures. This facility is currently in its pilot phase.

Recommendation: In cooperation with Samoa’s twinned

parliament and/ or the Pacific Parliaments Network, the Samoa

parliament could undertake a scoping study to identify options for

developing a sustainable parliamentary research service.

Printing Services Section

7.15. This section also is divided into two divisions – Printing Services and the

Division for Inter-Parliamentary Relations. This section works under the

direction of the Deputy Clerk.

The Printing Services Division does what its name suggests. Thanks in

part to a substantial infusion of equipment from foreign assistance, the

five staff members in this office have been able to provide for all the

Parliament’s printing needs.

The Inter-Parliamentary Relations Division maintains international

contacts with and through a large range of parliamentary associations

including the Commonwealth Parliamentary Association (CPA), Inter

Parliamentary Union (IPU) and the Asia Pacific Parliamentary Union

(APPU). It services the Legislative Assembly’s CPA Branch, as well as

the parliamentary twinning arrangement with the Parliament of

Tasmania. It is responsible for the preparation of Cabinet submissions

37 https://sites.google.com/site/pacificpin/home



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for funding these activities and for providing secretarial services for

international programmes both overseas and within Samoa.

Department for Corporate Services

7.16. This office operates under the direction of the Clerk and has both full-time

and part-time staff ranging from financial officers, security personnel,

maintenance staff, catering support, groundskeepers and the like. It is

responsible for the Parliament’s financial services, the co-ordination of planning

activities, general administration and facilities, the maintenance and security of

the Maota Fono and other parliamentary buildings and the grounds of the

parliamentary precinct. It is important for various Member interests, such as the

organisation/logics for (rare) parliamentary committee visits away from Apia,the provision of offices services and supplies and liasing with Parliamentary

Pension Scheme. The Sergeant at Arms, although located administratively under

Corporate Services, is responsible for general security within parliamentary

precinct including access to the visitor galleries within the Maota Fono under the

direction of the Maota Office.

Parliamentary Outreach

7.17 Other than the recently inaugurated annual Youth Parliament, which was

instigated by the Ministry of Women, Community and Social Development rather

than by the legislative Assembly, there appears to be little in the way of a

“schools” programme to foster an interest in the Parliament by young Samoans.

Schools programmes are an excellent way of encouraging young people to

become more aware of the Parliament and its meaning for them.

7.18 As resources permit and the Parliament’s website is developed, virtual tours

of the Parliament, its buildings, history and processes will be possible. This is

being encouraged through the Clerk’s Office, as is a proposal to transform the old

Maota Fono into a museum to attract greater public interest in the workings and

heritage of the Samoan Parliament. However, this will only become a fully



74

effective “schools’ programme” when it is coordinated with the Ministry for

Education, Sports and Culture and connected with a supportive curriculum.

Recommendation: The Parliament form a non-partisan

committee under the aegis of the Clerk to assess what can

be done to develop a public outreach programme including

a schools programme with appropriate literature for

visiting school groups, internet-based virtual tours and

curriculum support for education in the nature and role of

the Samoan Parliament in the life of the nation. Such a

programme could also be a featur e for an Annual Open Day

at the Parliament.

7.19 During consultations, it was also suggested that MPs should provide more

personal encouragement for school and community service visits to the chamber

during sittings. Members can play a role in cultivating public awareness amongst

school children by more actively sponsoring school visits to the Parliament

(especially when it is in session) and by themselves going to schools to promote

an institutional awareness of the Parliament. Not only might this promote

awareness of the Parliament as an institution it may well encourage more

decorum in the chamber when there is a audience to watch MPs’ behaviour.

Recommendation: Every MP should be encouraged to sponsor at

least one school visit a year to observe the Parliament at work to

foster youth interest in the Parliament. This could usefully be

facilitated with the cooperation of the Ministries for Education and

Women, Community and Social Development especially so that

schools remote from Apia may be included.



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8.0 Legislative Assembly Staff and Facilities:

Gaps and Constraints

Introduction

8.1. Recommendations have been made in earlier sections of this LNA to address

issues on the effectiveness of the parliamentary institutions and processes.

While some of these have involved areas where external assistance might be

helpful, the general focus was on internal responses. This section reverses the

emphasis to some extent by focusing largely on gaps and constraints that impact

on the institution of the Parliament, its staff and facilities that may be assisted by

external support. This is not to exclude the importance of domestic efforts to

address these gaps and constraints but rather to say much of the resources to

address these capacity gaps will initially tend to be drawn from the international

community.

Adequacy of the Parliamentary Human Resources

8.2. At present, parliamentary officers and staff as a group of public sector

employees are autonomous with regard to the Public Service, to the extent that

their conditions of employment do not bring them under the Public Service

Commission. However, they are subject to public service procedures in the

operation of their contracts and are members of the Public Service

superannuation scheme. Given the contractual basis for the employment of the

senior Clerks Legislative Assembly staff, the parliamentary officers and staff

cannot be regarded as a professional career service. Nevertheless, the

individuals in these positions clearly attempt to adhere to professional standards

and, in the experience of the consultant, display an admirable commitment to the

institution of Parliament.

8.3. The size of the Parliament’s staff complement is not itself an impediment to

maintaining a service structure that would justify a career service. Perhaps more

importantly, the fixed term contractual basis for the employment of the Clerks at

Table, Committee Clerks and others in senior positions creates an appearance

that parliamentary staff are potentially beholden for the renewal of their

contracts. This is all the more a concern since appointments for senior officers



76

are for three years, which is less than the life of the Parliament itself. As with

other Parliaments, it is considered necessary that principal parliamentary

officers be protected in their very sensitive positions by having permanent

appointments. It is essential for the confidence of Members, public servants and

the public that not only are parliamentary staff free from political pressures but

also are seen to be free. The long stalled Parliamentary Service Bill appears to be

inadequate in addressing this concern.

Recommendation: It is strongly recommended that the terms of

parliamentary staff employment be reviewed by a bi-partisan

committee assisted by competent external expertise with the

objective of establishing a career service with secure appointments

for senior parliamentary staff officers.

8.4. Given the importance of the clerks at table and committee staff in serving as

the corporate memory for the Legislative Assembly regarding parliamentary law,

procedure and practice, the Parliament must invest adequately in staff career

and professional development. Indeed, in current circumstances, where staff do

not enjoy permanence of tenure, they are likely to shift regularly between

parliamentary and other areas of public service or private sector employment. It

is especially desirable that significant investment be made to maintain

parliamentary knowledge and skills at a high standard. Placement with twinned

Parliaments, staff exchanges and the like are important vehicles for professional

development and should be actively supported by the Parliament as an

investment in its human capital.

Recommendation: An appropriate, on-going programme of

professional development should be established to support the

Legislative Assembly parliamentary staff. If there is to be a

professional career service for parliamentary staff, it is essential

that there also be a professional training programme. However,

this professional development programme should not depend on

the establishment of the proposed career service.



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8.5. As noted earlier, the Attorney General’s Office and, indeed, often the

Attorney General directly in his role as Solicitor General, services the

Government’s need for a parliamentary draftsman. While it is not unusual for

the Crown Solicitor/Solicitor General to provide this support especially in small

Parliaments, it is fraught with implications for the Parliament. It is undesirable

even though in some circumstances prudentially unavoidable. The Solicitor

General has the Government for a client and that obligation comes first. It would

highly difficult especially for the Attorney General as a member of the

Government, regardless of whatever other “hats” he might wear from time to

time, to offer legal advice to the Opposition or to the Parliament against the

Government.

8.6. Nevertheless, it must be acknowledged that legal resources for Government

are scarce and it is difficult for the Legislative Assembly to generate sufficient

work itself to justify a full-time parliamentary counsel. In the past, the

Legislative Assembly was fortunate enough to have a legal counsel through a

foreign aid programme but this is unsustainable over the long term. Rather

costly at times and unpalatable to a public that does not understand the

difference between Government and Parliament, the option pursued by many

small to medium sized Parliaments is to purchase this legal advice commercially.

Recommendation: Independently of any action on the

recommendation regarding external support for an independent

parliamentary counsel, the Speaker and the Clerk should explore

the options for avoiding conflicts of interest in securing legal

advice against the Executive. If the commercial option is pursued,

a contingency budgetary allocation should be included in the

Legislative Assembly’s budget.

Adequacy of Parliamentary Information

8.7. Access to reliable and adequate information is one of the critical needs and,

indeed, responsibilities of any democratic assembly. The members require

information to sustain their deliberations and to make prudent decisions. The



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Parliament, as an institution, has to have reasonable powers to demand

information in order to hold the Government to account and enforce

responsibility. In turn, the public relies on the diligence and skill of

parliamentarians to generate adequate information to make informed decisions

about the activities of their representatives and the policies of their Government.

8.8. As with other developing countries, Samoa is not an information-rich

society, although elite education levels are better than many least developed

countries. News services, both print and electronic, are limited and

predominantly foreign-sourced. Typically the coverage of national politics tends

to be focused on the Government’s activities and agenda. Thus, public awareness

of Parliament as an institution is comparatively limited. The Parliament uses

national radio and television (but rarely newspapers) to announce committee

hearings and to advertise for submissions. The evidence provided to this LNA

suggested that soliciting information from the public by any means, however, is

not especially productive and tends to be more oral than written when offered.

Recommendation: The Secretariat should develop a specific Public

Outreach / Communications Strategy designed to more effectively

disseminate information and to collect feedback/ inputs from the

public.

8.9. The Parliament’s website is relatively easy to find using a search engine and

is reasonably simple to navigate. However, its content is limited and the website,

which is in the process of being upgraded, will need to be significantly enhanced

if it is to be genuinely useful as a vehicle for informing the public. This

upgrading is said to be underway, but is beset by funding and equipment

difficulties that have slowed its progress. Human resources to input content

(para 7.6) is also an issue and has been a factor in putting committee reports

onto the website. Any new system should use open source software and a

Content Management System which allows lay-people (ie. non-ICT staff) to

upload content easily and quickly. Such websites are increasingly being

developed in the Pacific, and are viewed as more sustainable in the longer-term.



79

8.10. There is little doubt that an effective parliamentary website will meet a

number of public and professional information needs. Yet, for the moment, it is

impossible to know how much priority ought to be given to upgrading. The

public’s access to the Parliament’s website is not recorded or quantified as

“visits” to the website. Notwithstanding this uncertainty, the Government is

committed to developing a national broadband to promote internet

“connectivity”. This development will see more opportunity in the community as

well as schools, libraries and the like for promoting the Parliament through the

internet.

8.11. One improvement should be undertaken immediately, if possible, to

improve communication between the Parliament and the community. This is to

make more effective use of the internet to connect MPs and constituents. MPs

are listed already on the website but there are no details about them or e-mail

links to enable members of the public to contact individual MPs. E-mail contact

with the Parliament is possible, but at the moment all approaches go through the

Information Technology officer who has the responsibility to forward messages

on to an appropriate destination within the system. This is a cumbersome

process. It is not a secure process for confidential constituent communication

and will be unsustainable with a growth in demand for electronic access.

Recommendation: The Parliament of Samoa’s website be upgraded

to provide more detail on individual MPs and e-mail accounts

opened for each MP to enable more direct and secure

communication between Members and constituents the wider

public.

8.12. Upgrading the website’s content is important in terms of the impact it will

have on other aspects of the Parliament’s transparency and accountability

processes. After the Daily Hansard, perhaps the most urgent need in this area is

to have more of the work of committees on-line. Calls for submissions to

committees of inquiry can be posted on the Parliament’s website with advice on

making submissions and a style form for returning electronic submissions. With

proper care for privilege, the work of committees in progress can be added to the



80

parliamentary website. Reports of committees are distributed more quickly,

cheaply and widely via the internet. All these measures both help to promote

interest in the work of the Parliament and public participation in this work.

Recommendation: The Parliament of Samoa’s website should be

upgraded to facilitate both public access and public participation.

This will involve significant changes to existing practice with

regard to the distribution of parliamentary publications such as

the Daily Hansard and committee papers, reports and

submissions.

8.13. Such developments for promoting greater public engagement are not

without other consequential effects. The extension and elaboration in the use of

electronic media for assisting public access and accountability will require

improved facilities and resources. It will also involve some considerations of

parliamentary privilege especially with regard to the work of committees in

progress. It will certainly demand some care with the security of information as

well. Parliaments elsewhere have coped with these changes. They are not

especially onerous especially as the basic website infrastructure is in place and if

Samoa does not try to “reinvent the wheel” with regard to the privilege and

security issues.

Recommendation: It is highly desirable that the Parliament have

a dedicated mail server on site to service increased development

of the communication through the parliamentary website. This

might best be provided through a foreign assistance package that

included an expert from another parliament with knowledge of,

and experience with, the appropriate protocols for privilege and

security.

Adequacy of the Parliamentary Built Facilit ies

8.14. The Legislative Assembly sits in the national Maota Fono, a modern

building designed to resemble a traditional meeting house (fale fono) located on

the politically historic and sacred Tiafau area of the Mulinuu peninsula on the

western side of the capital city, Apia. The parliamentary precincts include the



81

pre-Independence old maota fono, which has been preserved on one corner of

the open field (malae) that serves as a sort of natural plaza for public events

including ceremonies and demonstrations. The Malae o Tiafau has customary

significance as the meeting ground of the nation. Behind the Maota Fono is the

Luafatasaga Kalapu Building, which serves as the Members’ lounge. It is also

stylised as a traditional fale and used as a venue for functions such as the Youth

Parliament. Beside it stands the Legislative Assembly Staff Office, an older one-

storey square of offices that includes those for the Speaker and the Clerk as well

as some committee rooms and the parliamentary records room. The newest

addition to the parliamentary precinct is the Tofilau Eti Alesano building, a newly

constructed office block, which sits on the city side of the parliamentary malae.

The Tofilau building was intended to provide office spaces for the 35 non-

ministerial members and some parliamentary staff as well as to and to house the

parliamentary library. It was opened in 2008 but thus far is not well used by

MPs. At the front of the Tofilau building is the tomb of Samoa’s first Prime

Minister, Mata’afa Fiame Faumuina Mulinu’u II.

The Parliamentary Precinct

8.15. In general terms, the physical environment of the Samoan Parliament is

supportive of the community activities relevant to the Parliament. The historical

significance of Tiafau and the prominence of the parliamentary precinct make

public access reasonably easy to identify and to facilitate. The parliamentary

malae provides an excellent venue for public ceremonies and other gatherings.

However, the public interest in visiting the Maota Fono appears to be limited.

Programmes to attract greater public attention to the parliamentary precinct

would be desirable in terms of cultivating public awareness of Parliament as an

institution separate from Government. The foyer of the Tofilau Building and the

Members’ lounge have been used for some of meetings and the like but scope

exists for doing more to use the amenities of the parliamentary precinct for

activities such historical displays, special activities to mark United Nations Day

and similar events to draw people to their Parliament.



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8.16. The Clerk has expressed a desire to add to the public’s interest in the

Parliament, its activities and heritage by converting the old Maota Fono into a

contemporary museum, which would help to support a school’s programme as

well as generate a focus for the general public. Whilst small specialist museums

have a poor track record for commercial success, the old Maota Fono museum

proposal has merit on grounds other than commercial success. This building

has significant heritage value for the political development of Samoa and will

require conservation on this ground alone. If this asset can be useful exploited to

display parliamentary memorabilia and artefacts to promote broader interest in

the contemporary work of the Legislative Assembly, it would be worth serious

consideration.

8.17. Notwithstanding the modest level of current public interest, some concern

has been expressed for improving the security of the parliamentary precinct

especially outside sitting times. The parliamentary website suggests it might be

useful to construct “a boundary stone wall” as a method of marking the limits of

the parliamentary precinct and so making clear the extent of the Speaker’s

authority. If the proposals to bring more public attention to the parliamentary

precinct such as the museum mooted above were to bear fruit, the security issue

might acquire greater prominence and, perhaps, urgency. This issue is

addressed below as part of a more general recommendation on development of

the parliamentary precinct.

Parliamentary Buildings: The Maota Fono

8.18. Legislative Assembly chamber is spacious with ample room and seating for

Members and strangers’ galleries. Unfortunately, the building itself is showing

serious signs of wear after 40 years of service. Many of the window frames

reportedly are showing significant structural weakness the protective covering

on the roof is visibly worn. The condition of the window frames is of particular

concern to the senior parliamentary staff as these are said to constitute a health

and safety issue. The matter was raised with this LNA because the cost of

repairing these massive windows is beyond the Parliament’s standard

maintenance budget.



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8.19. There are two areas where the LNA was advised that the facilities within

the Maota Fono could be improved. The Clerk has advised that the existing

public address system is due for upgrading and this opportunity might be used to

assess the priority of including an in-house television facility to provide visual as

well as audio records of proceedings on the floor of the chamber. The media

arrangements do not appear to be a significant impediment to effective media

coverage of the Legislative Assembly’s deliberations but their adequacy was of

passing concern to some non-Government MPs. The Opposition needs media

exposure to help compensate for the lack of numbers on the floor of the

Legislative Assembly. It is felt that the media’s attendance of Parliament is too

sporadic to provide a sophisticated understanding of the course of debates or

weaknesses in ministerial performances.

Legislative Assembly Staff Office

8.20. This complex of offices and meeting rooms is badly in need of replacement

if possible but certainly refurbishment if not. A structural assessment report

completed in January 2011 states that it is seriously inadequate for some of its

functions. The facilities for the storage and maintenance of records are of

serious concern to the staff with more than a little justification. Appropriate

storage capacity and infrastructure for record maintenance and retrieval ought

to be considered a priority within any programme to update the physical plant of

the parliamentary precinct. Other factors such as the health and safety of the

staff working in this complex of offices with antiquated work-spaces, plumbing,

wiring and the like need to be considered. It is well beyond the capabilities of

this report to identify specific approaches to addressing the problems especially

as the answers are likely to require rather more than cosmetic renovation.

Recommendation: The architect’s assessment of the Legislative

Assembly Staff Office should be taken seriously especially in light of

the health and safety issues that it identifies and the

understandable concerns that Samoans have for tsunamis in low-

lying areas. Given the costs involved and the relative urgency of

the matter, it would be appropriate to seek assistance through



84

appropriate external assistance channels. This recommendation is

contingent, however, on resolution of the use of the Tofilau

Building.

The Tofilau Eti Alesana Building

8.21. This structure appears to be highly controversial despite its recent

construction or perhaps because of it. It is a modern complex with considerable

potential for improving the working environment of MPs and staff but it is

largely unused. The reason for the under-utilization is part of the controversy.

The original rationale for the building was to provide office space for non-

ministerial MPs. However, this has been interdicted by the Government’s

parliamentary tactic of appointing all its non-ministerial parliamentary members

to Associate Minister status with personal offices in their associated

Departments. Having been offered the choice between the two, no Associated

Minister has opted for the Tofilau Building office. It is less clear why opposition

Members have not chosen to occupy their office space in the building except,

perhaps, that there are no political advantages to occupying an office where few

constituents visit and where the resources for media exposure are limited.

8.22. The possibility that MPs have first call on the office space may explain the

failure to make better use of the Tofilau Building’s capacity. There are other

considerations involved. It would take a significant and costly addition of office

equipment and services to kit out all the empty offices. Perhaps equally

important is the design of the building, which was constructed through foreign

aid. The recurrent cost of utilizing all the available office space fully would add

substantially to the parliamentary budget. For the moment, foreign aid is

assisting with the building’s recurrent costs but this is due to end within a few

years. Of course, the problem of maintaining the building and the asset it

represents will remain whether the building’s potential is realised or not.

Immediate to intermediate redress for some of the difficulties identified with

regard to the Legislative Assembly Staff Offices might be found in the

underutilisation of the Tofilau Building but this is unlikely to offer a long term

solution even if some temporisation with its original purpose is possible



85

politically. Unfortunately, perhaps, the answer rests in large part with the

Government and with the non-Government MPs.

Recommendation: As soon as practical the Speaker and the Clerk

should seek guidance from the Business, Standing Orders, House

and Electoral Committee on developing an appropriate plan for

more effective utilisation of the Tofilau Building. This ought to be

undertaken in parallel with decisions for the replacement or

refurbishment of the Legislative Assembly Staff Offices. Given the

scale of this review, the matters raised regarding the old Maota

Fono and the general security needs of the parliamentary precinct

should be included as a part of this process.



86

Conclusion

This Legislative Needs Assessment has sought to identify processes, resources

and means by which the Parliament of Samoa might better secure its democratic

objectives. In order to carry out its objectives, the LNA has made a number of

recommendations to contribute to Samoa’s improved governance aims through

strengthening the institution of Parliament. As noted, these recommendations

are primarily for the consideration of the national Parliament. It is hoped they

will merit careful consideration as the helpful suggestions they are intended to

be. Some will undoubtedly engender some debate either as to their premises or

their conclusions. That is in the nature of any critical review. Hopefully even

this debate will prove usefully for elucidating possible directions for reform or

consolidation.

A parallel objective of the LNA review is to identify practical and appropriate

ways that the international community can assist Samoa in strengthening the

institution and processes of the Parliament. In collaboration with the Parliament

of Samoa, there are a number of significant opportunities for the appropriate

international agencies and parliamentary institutions to develop appropriate and

specific support projects. The recent election has offered opportunities for new

directions on both sides of the chamber and it very much hoped that

recommendations regarding these as well as the more general institutional

recommendations might be pursued while a period of flexibility and transition

exists.



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Annex 1: List of Consultations

Grateful appreciation is given to the following individuals and organizations

generously assisted the course of this assessment with information and advice:

Tuimaleali’ifano Vaaleto’a Sualauvi II, Council of Deputies

Hon Tolofuaivalelei Falemoe Leiataua MP, Speaker

Laauli Leuatea Poataivao MP, Deputy Speaker

Fepuleai Attila M. Ropati, Clerk of the Parliament

Charlene Malele, Deputy Clark

Tigaina Laupepa, Clerk Assistant

Hon Misa Telefoni, Deputy Prime Minister

Patu Falefatu Sapolu, Chief Justice

Hon Ming C. Leung Wai, Attorney General

Leituala Kuiniselani Toelupe Tago, CEO, Ministry of Women, Community and

Social Development

Tupa’i Iulai Lavea, CEO, Ministry of Finance

Aiono Mose Pouvi Sua, CEO, Ministry of Foreign Affairs and Trade

Mr Sydney Oliver Faasau, Assistant CEO, Ministry of Women, Community andSocial Development

Mr Harry Mila, Information Technology Office, Parliament of Samoa

Tia David Pereira, Assistant Controller and Chief Auditor-Ministries

Dennis Chan Tung, Assistant Controller and Chief Auditor-Public Bodies

Mase Dr Fetuao Toia Alama, former Clerk of the Parliament

Harry Schuster, Tautua Party candidate

Mara Coffin Hunter, private citizen

Gratitude also must be given to the Samoan citizens who made comments to theconsultant but preferred not to be named as the election was in progress. Specialthanks go to Uitime and Esa whose careful attention to detail and time as well as

the location of meeting venues proved invaluable to the consultant.



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Annex 2: Select Bibliography

Materials and sources cited in the report include:

By-elections to be called in Samoa for nine vacant parliamentary seats”, RadioNew Zealand International, 31 May 2009. Accessed at:http://www.rnzi.com/pages/news.php?op=read&id=46863

“Call for more women MPs”, Samoa Observer, accessed at:http://www.samoaobserver.ws/index.php?option=com_content&view=article&i

d=31508:call-for-&catid=1:latest-news&Itemid=50

Constitution of the Independent State of Papua New Guinea. Accessed at:http://www.nefc.gov.pg/Constitution%20of%20PNG%20FINAL.pdf

“Court verdict angers Tautua”, Samoa Observer (on-line) at:

http://www.samoaobserver.ws/index.php?view=article&id=31465%3Acourt-verdict&option=com_content&Itemid=62

Fraenkel, Jon, “The Impact of Electoral Systems on Women’s Representation in

Pacific Parliaments”, in A Woman's Place is in the House – the House of

Parliament ; Pacific Islands Forum Secretariat, Suva, 2006.

International Monetary Fund, Samoa : Report on Observance of Standards andCodes— Fiscal Transparency Module, IMF Country Report No. 05/70, March2005. Accessed at: http://www.imf.org/external/pubs/ft/scr/2005/cr0570.pdf

Odgers, J.R., Australian Senate Practice (5th

ed.; Canberra: Australian Government Printing Service, 1976).

‘Opposition calls for “checks and balances”’, The Courier, Issue Nº XII

(July/August 2009). Accessed at: http://www.acp-eucourier.info/Opposition-calls-for.797.0.html

“Opposition moves not a worry, says PM”, Samoa Observer, accessed at:http://www.samoaobserver.ws/index.php?option=com_content&view=article&id=11939:opposition-moves

“PM warns on negligence”. Accessed at:

http://www.samoaobserver.ws/index.php?view=article&id=16498%3Apm-warns&option=com_content&Itemid=67

“Retiring Samoa MP wants more women in Parliament,” Radio New Zealand

International, 19 August, 2010. Accessed at:http://www.rnzi.com/pages/news.php?op=read&id=55393;



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“Samoa”, Country Reports On Actual Leadership Practice Against The Forum

Principles of Good Leadership: Baseline Survey for the Year 2008, Pacific IslandsForum Secretariat, 2010. Accessed at:

http://www.forumsec.org.fj/resources/uploads/attachments/documents/PIFS_Good_Leadership_Report_Samoa.pdf

“Samoa court reinstates nine MPs, cancels by-elections”, Radio New ZealandInternational, 2 July 2009. Accessed at:http://www.rnzi.com/pages/news.php?op=read&id=47500

“Samoan MP hopes to make way for woman parliamentarian,” Pacific Beat, Radio

Australia, 7 September 2010. Accessed at:http://www.radioaustralia.net.au/pacbeat/stories/201009/s3004533.htm

“Shifting allegiances in Samoa politics”, ”, Radio New Zealand International, 31May 2009. Accessed at:

http://www.rnzi.com/pages/news.php?op=read&id=56146

So’o, Asofou, ”The Evolution and Consolidation of the Samoan Governing SystemSince Independence in 1962”, paper presented at “Executive Power and theBattle for Parliamentary Confidence in the Pacific Islands” September 2007, Port Vila Vanuatu. Accessed at:

http://ips.cap.anu.edu.au/ssgm/papers/conference_papers/2007_executive/AsofouSo'o-EvolutionAndConsolidationOfSamoanGoverningSystem.pdf

So’o, Asofou, “Reconciling liberal democracy and custom and tradition in Samoa’s

electoral system”, South Pacific Futures, ANU Development Studies Network,

Bulletin No. 60, December 2002. Accessed at:http://devnet.anu.edu.au/online%20versions%20pdfs/60/1260Soo.pdf

State of women in politics”, Samoa Observer, accessed at:http://www.samoaobserver.ws/index.php?view=article&id=19766:state-of-

women&option=com_content&Itemid=53

“The infamous Sub-section (3) (c) of section 5 of the Electoral Act”, Samoa

Observer, Accessed at:http://www.samoaobserver.ws/index.php?view=article&id=31766%3Athe-infamous&option=com_content&Itemid=61

Tolofuaivalelei Falemoe Leiataua, “Parliament Independence: A Myth?, paper

delivered at 37th Presiding Officers And Clerks Conference, Perth, Western Australia, July 2006. Accessed at:

http://www.anzacatt.org.au/prod/anzacatt/anzacatt.nsf/ca3cb73640e4b7d4ca

2567ee0016638b/a9350eaf1b423cfbca2573fb00265b0e!OpenDocument

Tupuola Terry Tavita, “Tuilaepa calls on government to work twice as hard afterwin in Samoan elections”, Pacific Scoop., Accessed at “

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90

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panel-discussion-promoting-women/

Legal Documents cited:

Constitution of the Independent State of Samoa 1960. Accessed at:http://www.paclii.org/ws/legis/consol_act/cotisos1960438/

Constitution Amendment Act 2010. Accessed at:http://www.parliament.gov.ws/Portals/185/Documents/ListOfActs/2010/ENG

/Constitution%20Amendment%20Act%202010%20-%20Sam%20&%20Eng%20-%20final3.pdf

Electoral Act 1963. Accessed at http://www.paclii.org/ws/legis/consol_act/ea1963103/

Standing Orders of the Parliament of Samoa. 2010 (December).

Public Service Act 2004. Accessed at:http://www.paclii.org/ws/legis/consol_act/psa2004152/

Village Fono Act 1990. Accessed at:http://www.paclii.org/ws/legis/consol_act/vfa1990128/



Annex 3: Consultant’s Background

Professor Richard Herr has taught at the University of Tasmania since his

appointment in October 1972 and has held a variety of positions within the

University including Head of Department. He is currently the academic

coordinator for the Faculty of Law’s Parliamentary Law, Practice and Procedure

course, which provides professional development for the 11 Parliaments of

Australasia. He earned a PhD in Political Science from Duke University and,

during his academic career; he has written widely, inter alia, on aspects Pacific

Island affairs, parliamentary democracy and elections.

Prof. Herr has held visiting appointments in New Caledonia, New Zealand, United

States and the USSR. He holds non-resident appointments as an Adjunct

Professor in Fiji and in Norway. Prof Herr has served as a consultant to the

Governments of the Pacific Islands region on a range of organisational issues for

nearly three decades. He was awarded a Medal in the Order of Australia (OAM)

in the 2007 Queen’s Birthday Honours List “for service to higher education. In

2002, he was presented with an AusAID Peacebuilder award for his work in

Solomon Islands.

In 1978, he proposed the establishment of an Australasian Study of Parliament

Group (ASPG) for the parliaments of Australia, New Zealand and PNG to enhance

and strengthen the effectiveness of parliament as an institution within

Australasia. For its first five years, he served as Hon Secretary-Treasurer of the

ASPG and was its conference organiser. In November 2010, the Commonwealth