Constitution of Samoa

Tupua Tamasese Meaole & Malietoa Tanumafili II raising the flag on Independence Day, 1962

Samoa became a United Nations trust territory in 1947, and began a transition towards self-government and independence.[1] In March 1953 the New Zealand Government issued a "statement of policy" proposing internal self-government for Samoa under a Westminster model, with a Prime Minister, Cabinet, and legislature elected by universal suffrage.[2] The proposals were considered by a constitutional convention in November 1954.[3] This adopted a series of broad principles for a future government, including a parliamentary system.[4] One controversial provision was that rather than universal suffrage, only matai would have the right to vote and stand for election. This was reluctantly accepted by the New Zealand government as "the present wish of an overwhelming majority of the Samoan people".[5] The proposals were formally adopted by the Legislative Assembly of Samoa in February 1956.[6] An important provision was that Tupua Tamasese Meaʻole and Malietoa Tanumafili II would jointly act as head of state until their death or resignation, with future heads of state being chosen by the legislature.[6] The relationship with New Zealand would be decided at a future date, but would likely be modeled on that then prevailing between Tonga and the United Kingdom.[6]

In 1959 the New Zealand government formed a "Working Committee on Self Government", consisting of Tupua, Malietoa, seven elected members of the Executive Council, and seven members of the Legislative Assembly.[4] With the assistance of constitutional scholars James Wightman Davidson and Colin Aikman they produced a draft constitution.[4] A second constitutional convention was held in 1960 to debate the draft,[7] and after debating it article by article, it was approved on 28 October 1960.[1][8] The constitution was approved by 86.5% of the vote in a referendum on 10 May 1961,[9][10] and came into force when Samoa became independent on 1 January 1962.[1]

The constitution is divided into a preamble, twelve parts, and three schedules.

The Supreme Court of Samoa has primary jurisdiction to interpret the constitution and rule on matters of fundamental rights,[14] with the Court of Appeal of Samoa hearing appeals on these questions.[15] The courts' established approach to interpretation is to "consider the words of the provisions principally in issue, the constitutional and legal context in which they appear, and the wider social and historical context in which they are to be understood"[16] A secondary principle of interpretation is that "the Constitution is given its best effect when it promotes human rights"; where competing interpretations are available, "primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa".[17]

Samoa's constitution has been frequently amended. The Supreme Court has expressed concern about amendments being passed "as if an ordinary legislation were being amended", and urged the Legislative Assembly to pass future amendments by "a comprehensive process including full and extensive prior consultation".[18] Major constitutional amendments include:

• In 1991 the term of parliament was extended from three years to five years.[19]
• In 1997, in response to Controller and Chief Auditor Sua Rimoni Ah Chong tabling an annual report reveal widespread corruption by government ministers, the Human Rights Protection Party amended the constitution to change the position's term of appointment from life-tenure to three years, and to permit them to be removed by a simple majority vote in parliament.[20][21] These changes were largely reversed in 2014, when the office was made an independent office of parliament, its term was extended from three years to twelve, and the threshold for removal was raised from a simple majority to a two-thirds majority.[22]
• Also in 1997 the constitution was amended to change the country's name from "Western Samoa" to "Samoa".[23]
• In 2005, the mandatory age of retirement for judges was raised from 62 to 68.[24]
• In 2010 following a Supreme Court ruling which overturned an attempt to unseat opposition MPs and questioned the constitutionality of anti-party-hopping provisions in the Electoral Act,[25][26] the constitution was amended to allow MPs to be removed from office if they changed political parties.[27] Amendments to the Electoral Act empowered by this clause were then used to force the resignation of three opposition MPs.[28]
• In 2013 the constitution was amended to ensure a minimum of 10 per cent of seats in parliament are reserved for women.[29] The activation of this clause after a close election was a trigger for the 2021 Samoan constitutional crisis.
• In 2015 a clause was inserted to make the Director of Public Prosecutions an independent constitutional officer.[30] After the first Director, Mauga Precious Chang, was prosecuted for driving offences, the government introduced a constitutional amendment to disestablish the position,[31] removing it in 2017.[32] Other amendments replaced the "individual voter" seats with "urban constituencies", inserted part VIA establishing the Ombudsman as an independent constitutional officer, and provided for the Speaker of the Legislative Assembly to be appointed by the party that wins a majority of seats.[11] The latter clause was decisive in resolving the 2021 constitutional crisis.[33]
• In 2017 a clause was added to article 1 declaring that Samoa was "a Christian nation founded on God".[34][35]
• In 2019 further constitutional amendments eliminated the urban constituencies,[36][37] limited the O le Ao o le Malo to two terms,[38] and expanded the Judicial Services Commission.[39]
• In 2020 amendments passed alongside the Land and Titles Bill removed the jurisdiction of Samoa's civil and criminal courts over issues within the jurisdiction of the Land and Titles Court, and established new Land and Titles Court appellate divisions, effectively creating a parallel justice system.[40] The amendments also made it easier to remove judges from office.[41]

• 2021 Samoan constitutional crisis

• Constitution of the Independent State of Western Samoa 1960, Pacific Islands Legal Information Institute.
• Constitution of the Independent State of Samoa (as at 31 December 2019)