Samoa

1

CONSTITUTION OF THE INDEPENDENT

STATE OF SAMOA

SAMOA

Arrangement of Provisions

PART I

INDEPENDENT STATE

OF SAMOA AND ITS SUPREME LAW

1. Name and description

2. The Supreme law

PART II

FUNDAMENTAL RIGHTS

3. Definition of the State

4. Remedies for enforcement of rights

5. Right to life

6. Right to personal liberty

7. Freedom from inhuman treatment

8. Freedom from forced labour

9. Right to a fair trial

10. Rights concerning criminal law

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11. Freedom of religion

12. Rights concerning religious instruction

13. Rights regarding freedom of speech, assembly, association, movement and

residence

14. Rights regarding property

15. Freedom from discriminatory legislation

PART III

HEAD OF STATE

16. O le Ao o le Malö

17. Repealed

18. Appointment of Head of State

19. Term of office of Head of State

20. Disabilities of Head of State

21. Resignation and removal from office

22. Salary of Head of State

23. Absence or incapacity

24. Special provisions as to absence or incapacity

25. Council of Deputies

26. Head of State to act on advice

27. Information for Head of State

28. Oath of office

29. Public Seal

30. Secretary to Head of State

PART IV

EXECUTIVE

31. Executive power

32. Cabinet

33. Vacation of office

34. Official oath

35. Assignment of responsibilities to Ministers

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36. Summoning of Cabinet

37. Cabinet procedure

38. When decisions of Cabinet are to take effect

39. Executive Council

40. Consideration of Cabinet decisions by Executive Council

41. Attorney-General

41A. Director of Public Prosecutions

PART V

PARLIAMENT

42. Parliament

43. Power to make laws

44. Members of the Legislative Assembly

45. Qualifications for membership

46. Tenure of office of members

47. Decisions on questions as to membership

48. Filling vacancies

49. Election of Speaker

50. The Deputy Speaker

51. Clerk of the Legislative Assembly

52. Meetings of the Legislative Assembly

53. Standing Orders

54. Languages

55. Presiding over Legislative Assembly

56. Proceedings are valid

57. Quorum

58. Voting

59. Introduction of bills, etc., into Legislative Assembly

60. Bills assented to become Acts of Parliament

61. Oath of allegiance

62. Privileges of Legislative Assembly

63. Prorogation and dissolution of Legislative Assembly

64. General elections

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PART VI

JUDICIARY

65. Constitution of the Supreme Court

66. Powers of Judges of the Supreme Court

67. Oath of office

68. Tenure of office

69. Salaries of Judges of the Supreme Court

70. Acting Chief Justice

71. Acting Judge of the Supreme Court

72. Judicial Service Commission

73. Jurisdiction of the Supreme Court

74. Subordinate Courts

75. Constitution of Court of Appeal

76. Number of Judges

77. Judges not to sit on appeals from own decisions

78. Oath of office

79. General jurisdiction of Court of Appeal

80. Jurisdiction on constitutional questions

81. Jurisdiction in respect of fundamental rights

82. Definition of “decision”

PART VIA

OMBUDSMAN (KOMESINA O SULUFAIGA)

82A. Ombudsman

82B. Functions of Ombudsman

PART VII

PUBLIC SERVICE

83. Interpretation

84. Public Service Commission

85. Term of office

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86. Salaries

87. Functions of the Commission

88. Procedure and Annual Report

89. Public Service Board of Appeal

PART VIII

FINANCE

90. Public funds

91. Restriction on taxation

92. Public revenue

93. Payment out of public funds

94. Appropriation of expenditure

95. Expenditure in anticipation of appropriation

96. Unforeseen expenditure

97. Controller and Auditor General

97A. Responsibilities of Controller and Auditor General

98. Duty of Controller and Auditor General to report to Legislative Assembly

99. Term of office

99A. Conditions of service

99B. Other employment

99C. Rights preserved

99D. Absence of Controller and Auditor General

99E. Resignation of Controller and Auditor General

99F. Removal from office of Controller and Auditor General

PART IX

LAND AND TITLES

100. Matai titles

101. Land in Samoa

102. No alienation of customary land

103. Land and Titles Court

104. Land below high-water mark

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PART X

EMERGENCY POWERS

105. Proclamation of Emergency

106. Emergency Orders

107. Orders to be laid before Legislative Assembly

108. Restriction on detention

PART XI

GENERAL AND MISCELLANEOUS

109. Amendment of Constitution

110. Power of pardon

111. Interpretation

112. Authoritative texts

113. Coming into force

PART XII

TRANSITIONAL

114. Existing law to continue

115. Functions of Council of State

116. Tenure of office of Ministers

117. First Legislative Assembly

118. Existing Judges

119. Existing legal proceedings

120. Existing officers to continue in office

121. Laws not brought into force before Independence Day

122. Adaptation of existing law

123. Vesting of property

124. Transitional amendments to Constitution

Schedules

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IN THE HOLY NAME OF GOD,

THE ALMIGHTY, THE EVER LOVING

WHEREAS sovereignty over the Universe belongs to the Omnipresent God alone,

and the authority to be exercised by the people of Samoa within the limits

prescribed by God’s commandments is a sacred heritage

WHEREAS the Leaders of Samoa have declared that Samoa should be an

Independent State based on Christian principles and Samoan custom and

tradition

AND WHEREAS the Constitutional Convention, representing the people of

Samoa, has resolved to frame a Constitution for the Independent State of

Samoa

WHEREIN the State should exercise its powers and authority through the chosen

representatives of the people

WHEREIN should be secured to all the people their fundamental rights

WHEREIN the impartial administration of justice should be fully maintained

AND WHEREIN the integrity of Samoa, its independence, and all its rights

should be safeguarded

NOW THEREFORE, we the people of Samoa in our Constitutional Convention,

this 28th day of October 1960, do hereby adopt, enact and give to ourselves

this Constitution.

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Tupua Tamasese, C.B.E (Fautua)

Malietoa Tanumafili II, C.B.E (Fautua)

Fiame Mataafa Faumuina Mulinu'u II, C.B.E (Prime Minister, M.L.A., Lotofaga)

Tuimaleali'ifano S. II (Tama Aiga)

Anapu Solofa (M.L.A. Safata)

Amo Tausilia L. (M.L.A Aleipata – Itūpā-i-lalo)

Aiono Urima (M.L.A Aana Alofi Nu 1)

Asiata Lagolago (M.L.A Satupaitea, Alataua)

Iuli Veni (M.L.A Anoamaa East)

Ufagalilo Fa'atafa (M.L.A Faasaleleaga Nu 3)

Ulualofaiga Talamaivao V (M.L.A. Vaa-o-Fonoti)

Ulumalautea Papali'i F (M.L.A Vaimauga East)

Usu To'avalu (M.L.A Alataua West)

Faalava'au Galu (M.L.A Samatau/Falelatai)

Fatialofa M. Faimalo (M.L.A Lepa)

Fenunuti Tauafua (M.L.A Lefaga, Faleaseela)

Luamanuvae Eti Alesana (M.L.A. Faasaleleaga No. 1).

Leasi Avaula (M.L.A Gagaifomauga Nu.3)

Leiataua S (M.L.A Aigai le Tai)

Lesatele Rapi (M.L.A Vaisigano Nu.2)

Luafatasaga Su'e Taule'alo (M.L.A. Sagaga-Le Usoga).

Luatua Mata'ese (M.L.A Sagaga-Le-Falefa)

Matai'a Europa (M.L.A Faleata East)

Maposua Seilala (M.L.A Palauli-Le-Falefa)

Papali'i Pesamino (M.L.A Faasaleleaga Nu.2)

Peseta Seko J. S (M.L.A Gagaifomauga Nu.1

Pilia'e Leilua Iuliano (M.L.A Aana Alofi Nu.2)

Pulepule M (M.L.A Anoamaa West)

Saipaia U (M.L.A Aana Alofi Nu.3)

Sagapolutele Posë (M.L.A Aleipata-itūpā-i-luga)

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Seiuli Tolova'a Iakopo (M.L.A Faleata West)

Seuamuli Etimani (M.L.A Gagaemauga Nu.3)

Soifuä Solia Gese (M.L.A Falealupo)

Tualaulelei M (M.L.A Palauli)

Tuatagaloa Leutele Satele Te'o Simaile (M.L.A. Falealili).

Toomata Lilomaiava T (M.L.A Salega)

Tevaga Paletasala (M.L.A Gagaemauga Nu.1)

Tofaeono Muliaga (M.L.A Vaimauga West)

Toloafa Lafaele (M.L.A Siumu)

Tufuga Fatu Lemana (M.L.A Vaisigano Nu.1)

Tugaga Isa'aka (M.L.A Gagaifomauga Nu.2)

Tuala Tiaina (M.L.A Gagaemauga Nu.2)

Tuatö Poto (M.L.A Palauli West)

Vui Fale (M.L.A Faasaleleaga Nu.4)

G. F. D. Betham (M.L.A Apia)

Hans J. Keil (M.L.A Apia)

F. C. F. Nelson (M.L.A Apia)

Eugene F. Paul (M.L.A Apia)

Leilua P. Plowman (M.L.A Apia)

Ale Pusi (A.S.M. Faleata West)

A'e'au Taulupo'o (A.S.M. Falealupo)

Asiata Tulelei (A.S.M. Satupaitea-Alataua)

Aiolupotea Mana'ia (A.S.M. Alataua West)

Auali'itia Faa'ole'ole (A.S.M. Gagaemauga Nu.1)

Asi Falana'ipupu Ulu Filiva'a (A.S.M. Vaimauga West).

Afamasaga Maua II (A.S.M. Aana Alofi Nu.3)

Auelua Filipo (A.S.M. Lepa)

Auelua Tagoa'i Tufi (A.S.M. Lepa)

One Sofai (A.S.M. Gagaifomauga Nu.3)

Ugapo Tauaneai (A.S.M. Aana Alofi Nu.2)

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Umaga Pa'u (A.S.M. Aana Alofi Nu.2)

Ulugia Fa'alua (A.S.M. Faleata West)

Fafai Tuivale (A.S.M. Sagaga Le Usoga)

Fata M (A.S.M. Sagaga Le Usoga)

Fonoti Faagalu (A.S.M. Falealili)

Fuimaono Faafete (A.S.M. Falealili)

Faamoe Sasi (A.S.M. Gagaemauga Nu.3)

Fao Isaia (A.S.M. Vaisigano Nu.1)

Fesola'i Pio (A.S.M. Aana Alofi Nu.1)

Faletufuga Asiasi (A.S.M. Faasaleleaga Nu.2)

Fuiono Alefosio (A.S.M. Falealupo)

Fasavalu Faali'i (A.S.M. Salega)

Feiloaivao Pa'u Peter (A.S.M. Aana Alofi Nu.3)

Fiu Tanielu (A.S.M. Gagaifomauga Nu.3)

Faanana Fenika (A.S.M. Satupaitea - Alataua)

Fiso Faamotu L (A.S.M. Lotofaga)

Faiumu A (A.S.M. Palauli West)

FisoFusi (A.S.M. Palauli)

Fui Eli Seuamuli (A.S.M. Gagaifomauga Nu.2)

Fuataga Penita (A.S.M. Aleipata-Itūpā-i-luga)

Faoasau Ausage (A.S.M. Vaimauga East)

Fui Tauaivale (A.S.M. Lefaga Faleaseela)

Faolotoi M (A.S.M. Lepa)

Faliuila T (A.S.M. Aleipata-Itūpā-i-lalo)

Gasü Taatua (A.S.M. Satupaitea - Alataua)

Leleua Peni (A.S.M. Faleata East)

Leapai Sefo (A.S.M. Sagaga Le Usoga)

Leota Iakopo (Gagaemauga Nu.3)

Leaupepe Aifualaau (A.S.M. Aana Alofi Nu.1)

Leiataua Pöai (A.S.M. Aigai le Tai)

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Levaa Fofoa (A.S.M. Aigai le Tai)

Li'omatefili T (A.S.M. Siumu)

Leausa Foe (A.S.M. Vaa o Fonoti)

Leota Leauma (A.S.M. Anoamaa West)

Luafalealo Pesa (A.S.M. Anoamaa West)

Lavea Lalä S (A.S.M. Gagaifomauga Nu.1)

Lealuga Vaaiga (A.S.M. Vaisigano Nu.2)

Lagaaia Faamaga (A.S.M. Palauli)

Leiataatimu P (A.S.M. Sagaga Le Falefa)

Luatuanuu Tolai (A.S.M. Sagaga Le Falefa)

Lauago M. Tofu (A.S.M. Gagaemauga Nu.2)

LeniuFanene (A.S.M. Vaimauga West)

A. Le – Mamea Matatumua, O.B.E. (A.S.M. Lefaga - Faleaseela).

Moeono Alai'a K (A.S.M. Anoama'a East).

Moala Maugatai Limutau Asueru (A.S.M. Anoama'a East).

Magele Tagaileono Ate (A.S.M. Faasaleleaga Nu.1)

Matai'a Tavale (A.S.M. Gagaemauga Nu.3)

Masoe Pele (A.S.M. Vaisigano Nu.1)

Mata'ūtia Ueni (A.S.M. Palauli Le Falefa)

Matalë Tuugafala (A.S.M. Palauli West)

Malaitai Lautaimi (A.S.M. Gagaifomauga Nu.2)

Mata'ūtia Fetaui (A.S.M. Aleipata-Itūpā-i-Lalo)

Matai’a Si’utaulalova’a (A.S.M. Faleata West)

Mano Togamau (A.S.M. Siumu)

Moalele Mau'afu (A.S.M. Faasaleleaga Nu.2)

Mata'u Fiaali'i (A.S.M. Vaisigano Nu.2)

Mauisii Sefo (A.S.M. Palauli Le Falefa)

Muagututi'a Tautau (A.S.M. Lotofaga)

Matafeo Siatiu (A.S.M. Faasaleleaga Nu.4)

Mulitalo Faleniu (A.S.M. Faasaleleaga Nu.4)

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Nonoa Aleli F (A.S.M. Anoamaa East)

Polataivao Luni (A.S.M. Gagaifomauga Nu.3)

Paitomaleifi Siaki (A.S.M. Falealili)

Pini F (A.S.M. Faasaleleaga Nu.3)

Pa'uTitö (A.S.M. Samatau/Falelatai)

Peseta Tavai (A.S.M. Faasaleleaga Nu.4)

Soalaupule Sale (A.S.M. Safata)

Seumanu Saleilua (A.S.M. Faasaleleaga Nu.1)

Savusa Faavela (A.S.M. Vaa o Fonoti)

Segi Lafa (A.S.M. Faasaleleaga Nu.3)

Solia Sikuka (A.S.M. Falealupo)

Seinafolava Sofara (A.S.M. Lotofaga)

Safuneituuga Meatuai (A.S.M. Gagaifomauga Nu.2)

Semau Peleseuma (A.S.M. Gagaemauga Nu.2)

Seuala Meauli (A.S.M. Aleipata-Itūpā-i-Luga)

Saumalu Tui (A.S.M. Aleipata-Itūpā-i-Luga)

Taala Ioelu (A.S.M. Faleata East)

Taimalie Meapelo (A.S.M. Aana Alofi Nu.2)

Tuiä Iosefa (A.S.M. Safata)

Tofilau Moeloa (A.S.M. Faasaleleaga Nu.1)

Tapu Atonio Fidow (A.S.M. Vaisigano Nu.1)

Tapusoa Peni II (A.S.M. Gagaifomauga Nu.1)

Tapuaï Kuka (A.S.M. Salega)

To'ala Mulifusi (A.S.M. Palauli Le Falefa)

Tuai'aufa'i Fuifui (A.S.M. Alataua West)

Tuala Osooso (A.S.M. Gagaemauga Nu.1)

Tofa Peleti (A.S.M. Faasaleleaga Nu.3)

Telea Fasi (A.S.M. Sagaga Le Falefa)

Tauvalaau Lua (A.S.M. AanaAlofi Nu.3)

Tuala Siaki (A.S.M. Lefaga/Faleaseela)

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Tataivaatele Ioane (A.S.M. Aleipata-Itūpā-i-Lalo)

Tuaautoto'a Iefata (A.S.M. Aana Alofi Nu.1)

Taupaü Semu (A.S.M. Aigai le Tai)

Tuimalatü Suli (A.S.M. Vaa o Fonoti)

Tagaloa Tuala Siaosi (A.S.M. Anoamaa West)

Tuilagi Pa'ö (A.S.M. Faasaleleaga Nu.2)

Timu Kolio (A.S.M. Gagaifomauga Nu.1)

Tuisalega E (A.S.M. Salega)

Tanuvasa Taotafa (A.S.M. Alataua West)

Toluono Lama (A.S.M. Palauli)

Tuala Milo (A.S.M. Gagaemauga Nu.1)

Tevaga Matafä (A.S.M. Gagaemauga Nu.2)

Toomalatai Fiso (A.S.M. Vaimauga West)

Tuiletufuga Taualai (A.S.M. Vaimauga West)

Tuli'aupupu Muliaga S (A.S.M.Vaimauga East)

Vaitagutu S (A.S.M. Faleata East)

W. F. Betham (A.E.M. Apia)

O. R. Crichton (A.E.M. Apia)

A. M. Gurau (A.E.M. Apia)

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PART I

THE INDEPENDENT STATE OF

SAMOA AND ITS SUPREME LAW

1. Name and description:

(1) The Independent State of Samoa (hereinafter referred to as Samoa)

shall be free and sovereign.

(2) Samoa shall comprise the islands of Upolu, Savai'i, Manono and

Apolima in the South Pacific Ocean, together with all other islands

adjacent thereto and lying between the 13th and 15th degrees of south

latitude and the 171st and 173rd degrees of longitude west of

Greenwich.

(As to clause (2) see also the Territorial Sea Act 1971, and Article 43.)

2. The Supreme Law:

(1) This Constitution shall be the supreme law of Samoa.

(2) Any existing law and any law passed after the date of coming into

force of this Constitution which is inconsistent with this Constitution

shall, to the extent of the inconsistency, be void.

(In respect of the coming into force of the Constitution, see Article 113)

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PART II

FUNDAMENTAL RIGHTS

3. Definition of the State:

In this Part, unless the context otherwise requires, "the State" includes the

Head of State, Cabinet, Parliament and all local and other authorities

established under any law.

4. Remedies for enforcement of rights:

(1) Any person may apply to the Supreme Court by appropriate

proceedings to enforce the rights conferred under the provisions of

this Part.

(2) The Supreme Court shall have power to make all such orders as may

be necessary and appropriate to secure to the applicant the enjoyment

of any of the rights conferred under the provisions of this Part.

5. Right to life:

(1) No person shall be deprived of his or her life intentionally, except in

the execution of a sentence of a Court following his or her conviction

of an offence for which this penalty is provided by Act.

(2) Deprivation of life shall not be regarded as having been inflicted in

contravention of the provisions of this Article when it results from the

use of force to such extent and in such circumstances as are prescribed

by law and as are reasonably justifiable:

(a) in defence of any person from violence; or

(b) in order to effect an arrest or to prevent the escape of a person

detained, if the person who is being arrested or who is escaping

is believed on reasonable grounds to be in the possession of a

firearm; or

(c) for the purpose of suppressing a riot, insurrection or mutiny.

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6. Right to personal liberty:

(1) No person shall be deprived of his or her personal liberty except in

accordance with law.

(2) Where complaint is made to the Supreme Court that a person is being

unlawfully detained, the Court shall inquire into the complaint and,

unless satisfied that the detention is lawful, shall order the person to

be produced before the Court and shall release the person.

(3) Every person who is arrested shall be informed promptly of the

grounds of his or her arrest and of any charge against the person and

shall be allowed to consult a legal practitioner of his or her own choice

without delay.

(4) Every person who is arrested or otherwise detained shall be produced

before a Judge of the Supreme Court, some other judicial officer, the

Registrar of the Supreme Court or of any subordinate Court or any

Assistant Registrar of the Supreme Court or of any subordinate Court

from time to time approved in writing for this purpose by the

Registrar of the Supreme Court (hereinafter collectively referred to as

"remanding officers") within a period of 24 hours (excluding the time

of any necessary journey), and no such person shall be detained

beyond that period without the authority of one of the remanding

officers.

7. Freedom from inhuman treatment:

No person shall be subjected to torture or to inhuman or degrading

treatment or punishment.

8. Freedom from forced labour:

(1) No person shall be required to perform forced or compulsory labour.

(2) For the purposes of this Article, the term “forced or compulsory

labour” shall not include:

(a) any work required to be done in consequence of a sentence of a

Court; or

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(b) any service of a military character or, in the case of conscientious

objectors, service exacted instead of compulsory military service;

or

(c) any service exacted in case of an emergency or calamity

threatening the life or well-being of the community; or

(d) any work or service which is required by Samoan custom or

which forms part of normal civic obligations.

9. Right to a fair trial:

(1) In the determination of his or her civil rights and obligations or of any

charge against him or her for any offence, every person is entitled to a

fair and public hearing within a reasonable time by an independent

and impartial tribunal established under the law. Judgment shall be

pronounced in public, but the public and representatives of news

service may be excluded from all or part of the trial in the interests of

morals, public order or national security, where the interests of

juveniles or the protection of the private life of the parties so require,

or to the extent strictly necessary in the opinion of the Court in special

circumstances where publicity would prejudice the interests of justice.

(2) Nothing in clause (1) shall invalidate any law by reason only that it

confers upon a tribunal, Minister or other authority power to

determine questions arising in the administration of any law that

affect or may affect the civil rights of any person.

(3) Every person charged with an offence shall be presumed innocent

until proved guilty according to law.

(4) Every person charged with an offence has the following minimum

rights:

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(a) to be informed promptly, in a language which the person

understands and in detail, of the nature and cause of the

accusation against the person;

(b) to have adequate time and facilities for the preparation of his or

her defence;

(c) to defend himself or herself in person or through legal assistance

of his or her own choosing and, if the person has not sufficient

means to pay for legal assistance, to be given it free when the

interests of justice so require;

(d) to examine or have examined witnesses against him or her and

to obtain the attendance and examination of witnesses on his or

her behalf under the same conditions as witnesses against him

or her;

(e) to have the free assistance of an interpreter, if any doubt exists

as to whether the person can understand or speak the language

used in Court.

(5) No person accused of any offence shall be compelled to be a witness

against himself or herself.

10. Rights concerning criminal law:

(1) No person shall be convicted of an offence other than an offence

defined by law.

(2) No person shall be held guilty of any offence on account of any act or

omission which did not constitute an offence at the time when it was

committed; nor shall a heavier penalty be imposed than the one that

was applicable at the time that the offence was committed.

(3) No person who has been tried for any offence shall, after conviction or

acquittal, again be tried for that offence except:

(a) where a retrial is ordered or conducted by a Court or judicial

officer exercising a jurisdiction superior to that under which that

person was acquitted or convicted; or

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(b) in the case of a conviction entered in a trial conducted by a

Judge or Judges of the Supreme Court, where a retrial is ordered

by a Judge of that Court on an application made within 14 days

of that conviction.

11. Freedom of religion:

(1) Every person has the right to freedom of thought, conscience and

religion; this right includes freedom to change his or her religion or

belief, and freedom, either alone or in a community with others, and,

in public or private, to manifest and propagate his or her religion or

belief in worship, teaching, practice and observance.

(2) Nothing in clause (1) shall affect the operation of any existing law or

prevent the State from making any law in so far as that existing law or

the law so made imposes reasonable restrictions on the exercise of the

right conferred under the provisions of that clause in the interests of

national security or of public order, health or morals, or for protecting

the rights and freedom of others, including their rights and freedom

to observe and practice their religion without the unsolicited

interference of members of other religions.

12. Rights concerning religious instruction:

(1) No person attending any educational institution shall be required to

receive religious instruction or take part in any religious ceremony or

attend religious worship, if that instruction, ceremony or worship

relates to a religion other than his or her own.

(2) Every religious community or denomination shall have the right to

establish and maintain educational institutions of its own choice and

to provide therein religious instruction for pupils of that community

or denomination.

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(3) Nothing in clause (2) shall prevent the State from making any law

requiring the inspection of educational institutions and the

maintenance therein of standards in keeping with the general

educational level in Samoa.

13. Rights regarding freedom of speech, assembly, association,

movement and residence:

(1) All citizens of Samoa shall have the right:

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions; and

(d) to move freely throughout Samoa and to reside in any part

thereof.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any

existing law or prevent the State from making any law in so far as that

existing law or the law so made imposes reasonable restrictions on the

exercise of the right conferred under the provisions of that sub-clause

in the interests of national security, friendly relations with other

States, or public order or morals, for protecting the privileges of the

Legislative Assembly, for preventing the disclosure of information

received in confidence, or for preventing contempt of Court,

defamation or incitement to any offence.

(3) Nothing in sub-clauses (b) or (c) of clause (1) shall affect the operation

of any existing law or prevent the State from making any law in so far

as that existing law or the law so made imposes reasonable

restrictions on the exercise of either or both of the rights conferred

under the provisions of those sub-clauses in the interests of national

security or public order, health or morals.

(4) Nothing in sub-clause (d) of clause (1) shall affect the operation of any

existing law or prevent the State from making any law in so far as that

existing law or the law so made imposes reasonable restrictions on the

exercise of the right conferred under the provisions of that sub-clause

in the interests of national security, the economic well-being of Samoa,

or public order, health or morals, for detaining persons of unsound

21

mind, for preventing any offence, for the arrest and trial of persons

charged with offences, or for punishing offenders.

14. Rights regarding property:

(1) No property shall be taken possession of compulsorily, and no right

over or interest in any property shall be acquired compulsorily, except

under the law which, of itself or when read with any other law:

(a) requires the payment within a reasonable time of adequate

compensation therefore;

(b) gives to any person claiming that compensation a right of access,

for the determination of his or her interest in the property and

the amount of compensation, to the Supreme Court; and

(c) gives to any party to proceedings in the Supreme Court relating

to such a claim the same rights of appeal as are accorded

generally to parties to civil proceedings in that Court sitting as a

Court of original jurisdiction.

(2) Nothing in this Article shall be construed as affecting any general law:

(a) for the imposition or enforcement of any tax, rate or duty; or

(b) for the imposition of penalties or forfeitures for breach of the

law, whether under civil process or after conviction of an

offence; or

(c) relating to leases, tenancies, mortgages, charges, bills of sale, or

any other rights or obligations arising out of contracts; or

(d) relating to the vesting and administration of the property of

persons adjudged bankrupt or otherwise declared insolvent, of

infants or persons suffering under some physical or mental

disability, of deceased persons, and of companies, other

corporate bodies and unincorporated societies, in the course of

being wound up; or

22

(e) relating to the execution of judgments or orders of Courts; or

(f) providing for the taking of possession of property which is in a

dangerous state or is injurious to the health of human beings,

plants or animals; or

(g) relating to trusts and trustees; or

(h) relating to the limitation of actions; or

(i) relating to property vested in statutory corporations; or

(j) relating to the temporary taking of possession of property for

the purposes of any examination, investigation or inquiry; or

(k) providing for the carrying out of work on land for the purpose

of soil conservation or for the protection of water catchment

areas.

[Distress of property is unlawful in Samoa; see section 16 of the Alienation of

Customary Land Act 1965, subsection. 51 and 87 of the Land Ordinance

1959, and section 362 of the Samoa Act 1921 (N.Z.).]

15. Freedom from discriminatory legislation:

(1) All persons are equal before the law and entitled to equal protection

under the law.

(2) Except as expressly authorised under the provisions of this

Constitution, no law and no executive or administrative action of the

State shall, either expressly or in its practical application, subject any

person or persons to any disability or restriction or confer on any

person or persons any privilege or advantage on grounds only of

descent, sex, language, religion, political or other opinion, social

origin, place of birth, family status, or any of them.

23

(3) Nothing in this Article shall:

(a) prevent the prescription of qualifications for the service of

Samoa or the service of a body corporate directly established

under the law; or

(b) prevent the making of any provision for the protection or

advancement of women or children or of any socially or

educationally retarded class of persons.

(4) Nothing in this Article shall affect the operation of any existing law or

the maintenance by the State of any executive or administrative

practice being observed on Independence Day:

PROVIDED THAT the State shall direct its policy towards the

progressive removal of any disability or restriction which has been

imposed on any of the grounds referred to in clause (2) and of any

privilege or advantage which has been conferred on any of those

grounds.

24

PART III

HEAD OF STATE

16. O le Ao o le Malo:

There shall be a Head of State of Samoa to be known as O le Ao o le Malo.

17. Repealed by clause (5).

(Article 17 ceased to be in force on the death of Malietoa Tanumafili II on the 11th

day of May 2007 pursuant to clause (5)).

18. Appointment of Head of State:

(1) The Head of State shall be appointed by the Legislative Assembly

acting on the recommendation of the party or parties in Government.

(2) A person shall not be qualified to be appointed to the office of Head

of State:

(a) if the person is not a person qualified to be elected as a Member

of Parliament; or

(b) if the person does not possess such other qualifications as the

Legislative Assembly may determine from time to time by

resolution; or

(c) if the person has previously been removed from the office of

Head of State under the provisions of clause (2) of Article 21.

(3) The validity of the appointment of the Head of State shall not be

contested in any Court.

(4) Within 60 days before expiry of the term of appointment of the Head

of State or as soon as practicable when there is a vacancy in the office

of Head of State, the party or parties in Government shall submit to

the Speaker a written Notice recommending the name of only 1

person to be appointed as Head of State.

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

(a) if the Legislative Assembly is sitting, lay the Notice before the

Legislative Assembly to appoint the Head of State; or

25

(b) if the Legislative Assembly is not sitting, fix a date for a sitting

of the Legislative Assembly to appoint the Head of State.

(6) The Speaker shall issue and sign the warrant of appointment of the

Head of State.

19. Term of office of Head of State:

(1) Subject to the provisions of Article 21, the Head of State shall hold

office for a term of 5 years from the date on which he or she assumes

the functions of his or her office:

PROVIDED THAT, notwithstanding the expiry of his or her term,

the Head of State shall continue to hold office until his or her

successor assumes the functions of his or her office or for a period of 3

months, whichever is the shorter period.

(2) Subject to the provisions of this Constitution, a person who holds, or

who has held, office as Head of State, shall be eligible for re-

appointment to that office.

(3) If a vacancy in the office of Head of State is caused by the death,

resignation or removal of the Head of State or by the expiry of the

term of office, Article 18 applies and the person appointed as Head of

State holds office for a term of 5 years from the date on which the

person takes the oath of office.

20. Disabilities of Head of State:

The Head of State shall not hold any other office of profit or any other

position carrying the right to remuneration for the rendering of services, or

engage in any occupation for reward outside the functions of his or her

office; but nothing in this clause shall prevent the Head of State from

holding the pule over any customary land, from holding any freehold land

or other private property, or from disposing of the produce of any

customary or freehold land.

21. Resignation and removal from office:

(1) The Head of State may resign his or her office by writing under his or

her hand addressed to the Prime Minister, who shall forthwith advise

the Speaker of the Legislative Assembly of that resignation.

26

(2) The Head of State may be removed from office by the Legislative

Assembly on the ground of misbehaviour or of infirmity of body or

mind.

(3) No proposal for the removal from office of the Head of State under

the provisions of clause (2) shall be effective unless:

(a) notice of motion setting out the grounds for the proposed

removal has been given in writing and signed by not less than

one-fourth of the total number of Members of Parliament

(including vacancies);

(b) a period of at least 14 days has elapsed between that notice and

the debate on the motion; and

(c) the motion has been agreed to by not less than two-thirds of the

total number of Members of Parliament (including vacancies).

(4) A resolution carried under the provisions of clause (3), shall have the

effect of removing the Head of State from his or her office as from the

date on which the resolution is so carried.

22. Salary of Head of State:

The salary of the Head of State shall be determined by Act and shall be

charged on the Treasury Fund, and that salary shall not be diminished

during the period of office of the Head of State, unless as part of a general

reduction of salaries applied proportionately to all persons whose salaries

are determined by Act.

23. Absence or incapacity:

(1) While any vacancy exists in the office of Head of State or during the

absence from Samoa of the Head of State, the Council of Deputies

shall perform the functions of the office of Head of State.

(2) Whenever the Chief Justice declares in writing that he or she is

satisfied by evidence, which shall include, where possible, the

evidence of the wife and of at least 2 physicians, that the Head of State

is by reason of infirmity of body or mind incapable for the time being

of performing his or her functions as Head of State, or that the Chief

Justice is satisfied by evidence that the Head of State is for some

definite cause not available for the performance of those functions,

27

then, until it is declared in like manner that the Head of State has so

far recovered his or her health as to warrant his or her resumption of

the functions of the office of Head of State or has become available for

the performance thereof, as the case may be, those functions shall be

performed by the Council of Deputies.

24. Special provisions as to absence or incapacity:

While Tupua Tamasese Mea'ole and Malietoa Tanumafili II hold jointly the

office of Head of State, the following provisions shall apply:

(a) during any period for which one joint holder of office is absent

from Samoa or is incapable of, or not available for, the

performance of his or her functions as Head of State, the other

joint holder shall perform those functions;

(b) during any period for which neither of the joint holders is able

to perform the functions of the office of Head of State, whether

by reason of absence from Samoa, incapacity or unavailability,

the Council of Deputies shall perform those functions;

(c) for the purposes of this Article, the Chief Justice shall determine,

under the provisions of clause (2) of Article 23, the period

during which a joint holder is incapable of, or not available for,

the performance of his or her functions as Head of State.

25. Council of Deputies:

(1) There shall be a Council of Deputies, which shall consist of one, 2 or 3

persons elected by the Legislative Assembly:

PROVIDED THAT, if the Assembly shall not have elected a Council

of Deputies, the Chief Justice shall assume the functions of the

Council.

(2) A person shall not be qualified to be elected as, or to continue to be, a

member of the Council of Deputies unless the person is qualified to be

appointed as Head of State under the provisions of Article 18.

(3) An election of members of the Council of Deputies shall be held as

soon as possible after each election of a Head of State:

28

PROVIDED THAT, while the provisions of Article 17 are in force, an

election of members of the Council of Deputies shall be held as soon

as possible after Independence Day and, thereafter, at intervals of not

less than 4 years and 9 months and not more than 5 years and 3

months.

(4) If at any time the number of members of the Council of Deputies is

less than 3, the Legislative Assembly may elect as a member of the

Council a person qualified to be elected under the provisions of clause

(2), and any person so elected shall hold office until the next ensuing

election held under the provisions of clause (3).

(5) Subject to the provisions of clause (2), a member of the Council of

Deputies shall be eligible for re-election.

(6) A member of the Council of Deputies may resign his or her office by

writing under his or her hand addressed to the Prime Minister, who

shall forthwith advise the Speaker of the Legislative Assembly of that

resignation.

(7) The Legislative Assembly may, on a motion carried by not less than

two-thirds of the total number of Members of Parliament (including

vacancies), remove from office a member of the Council of Deputies

on the ground of stated misbehaviour or of infirmity of body or mind.

(8) The salaries of members of the Council of Deputies shall be

determined by Act and shall be charged on the Treasury Fund, but an

Act may provide that no such salary shall be payable to such a

member for any period for which the member is a full-time salaried

employee of the Government. The salaries of such members shall not

be diminished during their period of office, unless as part of a general

reduction of salaries applied proportionately to all persons whose

salaries are determined by Act.

(9) A member of the Council of Deputies shall not be qualified to be

elected as a Member of Parliament:

29

PROVIDED THAT the provisions of this clause shall not disqualify a

member of the Council from being elected to the office of Head of

State.

(10) The Council of Deputies shall determine which of its members shall,

from time to time, preside over Council.

(11) Subject to the provisions of this Constitution, the Council of Deputies

may regulate its procedure in such manner as it thinks fit.

26. Head of State to act on advice:

(1) Except as otherwise provided in this Constitution, the Head of State in

the performance of his or her functions shall act on the advice of

Cabinet, the Prime Minister or the appropriate Minister, as the case

may be.

(2) If Cabinet, the Prime Minister or an appropriate Minister tenders

advice to the Head of State as to the performance of any function of

the Head of State and, if the Head of State does not, within 7 days

after the date on which the tendering of that advice comes to the

notice of the Secretary to the Head of State, accept that advice or take

some other action in relation thereto which the Head of State is

entitled to take under the provisions of this Constitution or of any

Act, the Head of State shall be deemed to have accepted that advice;

and an instrument under the hand of the Secretary to Cabinet, acting

on the instruction of the Prime Minister, to that effect shall operate as

the performance of the function concerned in accordance with that

advice.

27. Information for Head of State:

It shall be the duty of the Prime Minister:

(a) to arrange for the circulation to the Head of State of copies of the

agenda and minutes of Cabinet and of all other papers laid

before Cabinet at the time when they are circulated to Ministers;

and

(b) to furnish such information relating to the administration of the

affairs of Samoa and proposals for legislation as the Head of

State may call for.

30

28. Oath of office:

The Head of State and each member of the Council of Deputies shall, before

assuming the functions of his or her office, take and subscribe before the

Chief Justice an oath in the form set out in the Third Schedule.

29. Public Seal:

The Head of State shall keep and use the Public Seal of Samoa.

30. Secretary to Head of State:

There shall be a Secretary to the Head of State.

31

PART IV

EXECUTIVE

31. Executive power:

(1) The executive power of Samoa shall vest in the Head of State and

shall be exercised by him or her under the provisions of this

Constitution.

(2) Nothing in clause (1) shall prevent Parliament from conferring by Act

functions on authorities other than the Head of State.

32. Cabinet:

(1) There shall be a Cabinet of Ministers, who shall have the general

direction and control of the executive government of Samoa and shall

be collectively responsible therefore to Parliament.

(2) Cabinet shall be appointed as follows:

(a) the Head of State shall appoint as Prime Minister to preside over

Cabinet a Member of Parliament who commands the confidence

of a majority of the Members of Parliament;

(b) the Head of State shall, acting on the advice of the Prime

Minister, appoint not fewer than eight nor more than twelve

other Members of Parliament to be Ministers;

(b.a) the Head of State shall, acting on the advice of the Prime

Minister, appoint one of the Ministers appointed under sub-

clause (b) to be Deputy Prime Minister;

(c) if an appointment is to be made while the Legislative Assembly

is dissolved, a person who was a Member of Parliament

immediately before the Assembly was last dissolved may be

appointed to be Prime Minister or a Minister;

(d) appointments under the provisions of this clause shall be made

by the Head of State by instrument under the Public Seal;

(e) the Head of State shall, acting on the advice of the Prime

Minister, appoint another Member or Members of Parliament to

be a Minister or Ministers as soon as possible after the number

of Ministers falls below the number appointed pursuant to sub-

32

clause (b) of this clause by reason of the office of any Minister or

Ministers becoming vacant, so that the number of Ministers (in

addition to the Prime Minister) shall be restored to the number

appointed pursuant to sub-clause (b) of this clause as soon as

possible.

33. Vacation of office:

(1) The appointment of the Prime Minister who is in office at the

commencement of the first session of the Legislative Assembly

following a dissolution thereof shall be terminated by the Head of

State on the seventh day of that session if the Prime Minister has not

sooner resigned.

(2) The appointment of the Prime Minister shall also be terminated by the

Head of State:

(a) if the Prime Minister ceases to be a Member of Parliament for

any reason other than a dissolution of the Legislative Assembly;

or

(b) if the Legislative Assembly passes a motion in express words of

no confidence in Cabinet or if Cabinet is defeated on any

question or issue which the Prime Minister has declared to be a

question or issue of confidence:

PROVIDED THAT, if after the passing of such a motion or after that

defeat the Prime Minister so requests, the Head of State may dissolve

the Legislative Assembly instead of terminating the appointment of

the Prime Minister; or

(c) if the Prime Minister resigns his or her office by writing under

his or her hand addressed to the Head of State; or

(d) if the Prime Minister is absent from Samoa without written

permission given by the Head of State, acting in his or her

discretion.

(3) The office of any other Minister shall become vacant:

(a) if the appointment of the Prime Minister has been terminated

under the provisions of clause (1) or clause (2); or

(b) if the appointment of the Minister to that office is revoked by the

Head of State, acting on the advice of the Prime Minister, by

instrument under the Public Seal; or

33

(c) if the Minister ceases to be a Member of Parliament for any

reason other than a dissolution of the Legislative Assembly; or

(d) if the Minister resigns his or her office by writing under his or

her hand addressed to the Head of State; or

(e) if the Minister is absent from Samoa without written permission

given by the Head of State, acting on the advice of the Prime

Minister.

(4) Whenever, by reason of illness or of absence from Samoa with the

written permission of the Head of State, the Prime Minister is

temporarily prevented from performing, in Samoa, the functions of

his or her office, the Head of State may, by instrument under the

Public Seal, appoint the Deputy Prime Minister to perform those

functions, or another Minister where this is not possible, until such

time as the Prime Minister is capable of again performing them or has

vacated his or her Office.

(5) The power conferred on the Head of State under the provisions of

clause (4) shall be exercised by the Head of State, acting in his or her

discretion, if in his or her opinion it is impracticable to obtain the

advice of the Prime Minister by reason of the illness or absence of the

Prime Minister and, in any other case, shall be exercised by the Head

of State, acting on the advice of the Prime Minister.

(6) The Head of State, acting on the advice of the Prime Minister, may by

instrument under the Public Seal:

(a) declare a Minister to be by reason of illness temporarily

incapable of performing his or her functions as a Minister; or

(b) suspend a Minister during the period of any investigation or

inquiry into the conduct of that Minister.

(7) Any Minister in respect of whom action has been taken under the

provisions of clause (6) shall not perform any of the functions of his or

her office or sit in or otherwise take part in the proceedings of Cabinet

until the Head of State, acting on the advice of the Prime Minister, has

revoked the aforesaid instrument under the Public Seal.

34

34. Official oath:

Every Minister shall, before assuming the functions of his or her office, take

and subscribe before the Head of State an oath in the form set out in the

Third Schedule.

35. Assignment of responsibilities to Ministers:

(1) The Prime Minister may, by direction in writing under his or her

hand:

(a) charge any Minister with the responsibility for any department

or subject; and

(b) revoke or vary any direction given under the provisions of this

clause.

(2) The Prime Minister may retain in his or her charge any department or

subject.

36. Summoning of Cabinet:

Cabinet shall be summoned only by the Prime Minister or, in his or her

absence, by such Minister as the Prime Minister shall appoint in that behalf.

37. Cabinet procedure:

(1) Subject to the provisions of this Constitution, Cabinet may regulate its

procedure (including the fixing of a quorum) in such manner as it

thinks fit.

(2) There shall be a Secretary to Cabinet.

(3) Cabinet shall not be disqualified for the transaction of business by

reason of any vacancy in the number of its members, and any

proceedings of Cabinet shall be valid notwithstanding that some

person who was not entitled to do so sat or voted in Cabinet or

otherwise took part in the proceedings.

(4) It shall be the duty of the Prime Minister, if the Head of State so

requires, to submit for the consideration of Cabinet any matter on

which a decision has been taken by a Minister (including the Prime

Minister) but which has not been considered by Cabinet.

35

(5) A decision of Cabinet shall be recorded in minutes which shall, under

the hand of the Secretary to Cabinet, be communicated to the

Secretary to the Head of State within 24 hours of the making of the

decision.

(6) A decision of Cabinet shall not take effect except under the provisions

of Article 38.

38. When decisions of Cabinet are to take effect:

(1) A decision of Cabinet shall take effect:

(a) on its approval by the Head of State, acting in his or her

discretion; or

(b) on the expiry of 4 days after the date of the decision, unless a

meeting of the Executive Council is sooner held under the

provisions of Article 40; or

(c) if the issue involved in the decision is, in the opinion of a

majority of Ministers present and voting at the meeting at which

the decision is taken, of extreme urgency, on the expiry of one

day after the date of the decision, unless a meeting of the

Executive Council is sooner held under the provisions of Article

40; or

(d) under the provisions of Article 40.

(2) For the purposes of sub-clauses (b) and (c) of clause (1), the date of a

decision of Cabinet shall be the date on which the minutes in which

the decision is recorded are communicated to the Secretary to the

Head of State under the provisions of clause (5) of Article 37.

(3) An instrument under the hand of the Secretary to Cabinet certifying

that a decision of Cabinet has taken effect shall be conclusive evidence

that that decision has taken effect.

39. Executive Council:

(1) There shall be an Executive Council of Samoa, which shall consist of:

(a) the Head of State;

(b) the Prime Minister and Ministers holding office under the

provisions of Articles 32 and 33.

36

(2) Subject to the provisions of this Constitution, the Executive Council

may regulate its procedure (including the fixing of a quorum) in such

manner as it thinks fit.

(3) The Secretary to Cabinet shall be Clerk of the Executive Council.

40. Consideration of Cabinet decisions by Executive Council:

(1) The Head of State, acting in his or her discretion, or the Prime

Minister may summon a meeting of the Executive Council to consider

any decision recorded in the minutes of a Cabinet meeting.

(2) If at a meeting of the Executive Council thus summoned the Head of

State supports the decision concerned, that decision shall take effect as

a decision of Cabinet.

(3) If at a meeting of the Executive Council thus summoned the Head of

State opposes the decision concerned or requests any amendment

thereto, Cabinet shall thereupon be summoned under the provisions

of Article 36 and requested to reconsider that decision.

(4) If Cabinet after that reconsideration reaffirms its original decision or

accepts the amendment requested by the Head of State, the original

decision or the decision as so amended, as the case may be, shall

forthwith take effect as a decision of Cabinet.

(5) If Cabinet after that reconsideration adopts a decision which

incorporates an amendment to its original decision, other than an

amendment requested by the Head of State under the provisions of

clause (3), the decision as so amended shall operate as a new decision

of Cabinet to which the provisions of clauses (5) and (6) of Article 37

shall apply.

41. Attorney-General:

(1) The Head of State, acting on the advice of the Prime Minister, shall

appoint an Attorney General, who shall be a person qualified to be a

Judge of the Supreme Court.

37

(2) The Attorney General shall advise on legal matters referred to him or

her by the Head of State, Cabinet, the Prime Minister or a Minister.

(3) The Attorney General shall have a right of audience in, and shall take

precedence over any other person appearing before, any Court or

tribunal on any proceedings other than criminal proceedings.

(4) The powers of the Attorney General may be exercised by the Attorney

General in person or by officers subordinate to the Attorney General,

acting under and in accordance with his or her general or special

instructions.

(5) The Attorney General shall hold office for such term or terms and

under such conditions as may be determined by the Head of State,

acting on the advice of the Prime Minister.

41A. Director of Public Prosecutions:

(1) The Head of State may, acting on the advice of the Prime Minister,

appoint a person for a term of six (6) years who is qualified to be

appointed as a judge of the Supreme Court as the Director of Public

Prosecutions (“Director”).

(2) The terms and conditions of appointment are to be provided by Act.

(3) The Director:

(a) may -

(i) institute and conduct criminal proceedings;

(ii) take over criminal proceedings that have been instituted

by another person or authority;

(iii) discontinue, at any stage before judgment is delivered,

criminal proceedings instituted or conducted by the

Director or another person or authority;

(b) is not subject to direction or control by any other person or

authority when the Director is carrying out the powers under

sub-clause (a); and

(c) shall have a right of audience in, and shall take precedence over

any other person appearing before, any Court or tribunal in

relation to criminal proceedings;

38

(d) has other functions, duties and powers conferred by Act.

(4) The powers of the Director may be exercised by the Director in person

or by officers subordinate to the Director, acting under and in

accordance with the Director’s general or special instructions.

(5) In this Article, “criminal proceedings” includes any proceedings or

matter before a Court for an offence alleged to have been committed

and includes any ancillary proceedings, an appeal, case stated or

question of law.

39

PART V

PARLIAMENT

42. Parliament:

There shall be a Parliament of Samoa, which shall consist of the Head of

State and the Legislative Assembly.

43. Power to make laws:

Subject to the provisions of this Constitution, Parliament may make laws

for the whole or any part of Samoa and laws having effect outside as well

as within Samoa.

44. Members of the Legislative Assembly:

(1) Subject to the provisions of this Article, the Legislative Assembly shall

consist of:

(a) one member elected for each of 41 territorial constituencies

having such names and boundaries and including such villages

or sub-villages or villages and sub-villages as are prescribed

from time to time by Act;

(aa) six additional members being one additional member elected for

each of such 6 of those territorial constituencies as are prescribed

from time to time by Act;

(b) two members respectively elected, under the 2 urban

constituencies provided by Act, by persons whose names appear

on the urban constituency roll.

(Note - clause (1)(b) comes into operation on the date appointed by the Head

of State under Article 63(4) of the Constitution to dissolve the Legislative

Assembly for the 2016 general elections)

(1A) Subject to this Article, women Members of the Legislative Assembly

shall:

(a) consist of a minimum of 10% of the Members of the Legislative

Assembly specified under clause (1) which for the avoidance of

doubt is presently 5; and

40

(b) be elected pursuant to clause (1) or become additional Members

pursuant to clause (1B), (1D) or (1E).

(1B) If, following any general election:

(a) all members elected under clause (1) are men, the prescribed

number of women candidates (if any) with the highest number

of votes shall become additional Members; or

(b) less than the prescribed number of women candidates are

elected under clause (1), the remaining prescribed number of

women candidates (if any) with the highest number of votes

shall become additional Members for the purposes of clause

(1A).

(1C) Clause (1B) does not apply if the prescribed number of women are all

elected under clause (1).

(1D) If the seat of an additional Member becomes vacant, it shall, despite

Article 48, be filled by the woman candidate (if any) who has the next

highest number of votes at the last election or general election.

(1E) Subject to Article 48, if a seat under clause (1) held by a woman

becomes vacant, to which a man is elected to fill that vacant seat, the

woman candidate (if any) with the highest number of votes from that

election or the last election or general election shall become the

additional Member.

(1F) If, in the selection of the required number of women under clause

(1B), (1D) or (1E), two (2) or more candidates have equal number of

votes, the additional Member shall be selected by lot before the

Electoral Commissioner with the presence of the candidates or their

authorised representatives and at least two (2) police officers.

(1G) If a woman candidate becomes an additional Member of a

constituency (irrespective of a woman candidate being elected to that

constituency), no other woman candidate from the same constituency

shall become an additional Member unless there is no other woman

candidate from any other constituency to make up the required

prescribed number.

41

(2) (Repealed by the Constitution Amendment Act 2015, No.19).

(3) Subject to the provisions of this Constitution, the mode of electing

members of the Legislative Assembly, the terms and conditions of

their membership, the qualifications of electors, and the manner in

which the roll for each territorial or urban constituency shall be

established and kept shall be prescribed by law.

(4) Members of the Legislative Assembly (including additional Members)

shall be known as Members of Parliament.

(5) In this Article, unless the context otherwise requires:

“Additional Member” means a woman who is a Member of

Parliament by virtue of clause (1B), (1D), or (1E) for the purposes

of clause (1A);

“Highest number of votes” means the percentage of the total valid

votes in a constituency polled by a woman candidate;

“Prescribed number” means the minimum number of woman

Members of Parliament specified under clause (1A).

(Note: Amendments consolidated in Article 44(1A) to (1G) and (5)) commence on

polling day of the next general election (2016), as appointed by the Head of State

under Article 64 of the Constitution, pursuant to section 1(3) of the Constitution

Amendment Act 2013, No. 17).

45. Qualifications for membership:

(1) A person shall be qualified to be elected as a Member of Parliament

who:

(a) is a citizen of Samoa; and

(b) is not disqualified under the provisions of this Constitution or of

any Act.

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(2) If a person other than a person qualified under the provisions of

clause (1) is elected as a Member of Parliament, the election of that

person shall be void.

46. Tenure of office of members:

(1) Every Member of Parliament shall cease to be a Member at the next

dissolution of the Legislative Assembly after the Member has been

elected or previously thereto if his or her seat becomes vacant under

the provisions of clause (2).

(2) The seat of a Member of Parliament shall become vacant:

(a) upon his or her death; or

(b) if the Member resigns his or her seat by writing under his or her

hand addressed to the Speaker; or

(c) if the Member ceases to be a citizen of Samoa; or

(d) if the Member becomes disqualified under the provisions of this

Constitution or of any Act.

(3) Despite Articles 13 and 15, an Act may provide that the seat of a

Member of Parliament becomes vacant during his or her term of

office:

(a) where in certain circumstances the Member -

(i) resigns or withdraws from or changes his or her political

party;

(ii) joins a political party if he or she is not a member of the

political party;

(b) where the Member holds himself or herself out to be a member

or a representative of -

(i) 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 an

act; or

(ii) a political party other than the political party of which he

or she is a member.

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47. Decisions on questions as to membership:

All questions that may arise as to the right of any person to be or to remain

a Member of Parliament shall be referred to and determined by the

Supreme Court.

48. Filling vacancies:

Whenever the seat of a Member of Parliament becomes vacant under the

provisions of clause (2) of Article 46, the Speaker shall, by writing under his

or her hand, report that vacancy to the Head of State, and the vacancy shall

be filled by election in the manner provided by law.

49. Election of Speaker:

(1) The Legislative Assembly shall, immediately when it first meets after

a general election and as soon as possible after any vacancy occurs in

the office of Speaker otherwise than by reason of a dissolution of the

Assembly, elect a Member of Parliament to be Speaker of the

Legislative Assembly.

(1A) As an exception to clause (1), the Member nominated, by the party

that wins majority of all the seats in the Legislative Assembly after a

general election, is taken to have been duly elected by the Legislative

Assembly pursuant to clause (1) and shall be endorsed by the

Legislative Assembly as Speaker.

(1B) For any vacancy under clause (1), the Member nominated, by the

party or parties in Government, is taken to have been duly elected

under clause (1) and shall be endorsed by the Legislative Assembly as

Speaker.

(2) The Speaker, upon being elected and before assuming the functions of

his or her office, shall take and subscribe before the Head of State an

Oath of Allegiance in the form set out in the Third Schedule.

(3) The Speaker may at any time resign his or her office by writing under

his or her hand addressed to the Clerk of the Legislative Assembly

and shall vacate his or her office:

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(a) if the Speaker ceases to be a Member of Parliament; or

(b) if the Speaker is appointed to be a Minister.

50. The Deputy Speaker:

(1) The Legislative Assembly may elect a Member of Parliament, not

being a Minister, to be Deputy Speaker.

(1A) As an exception to clause (1), the Member nominated, by the party

that wins majority of all the seats in the Legislative Assembly after a

general election, is taken to have been duly elected by the Legislative

Assembly pursuant to clause (1) and shall be endorsed by the

Legislative Assembly as Deputy Speaker.

(1B) For any vacancy in the office of Deputy Speaker, the Member

nominated, by the party or parties in Government, is taken to have

been duly elected under clause (1) and shall be endorsed by the

Legislative Assembly as Deputy Speaker.

(2) The Deputy Speaker may at any time resign his or her office by

writing under his or her hand addressed to the Clerk of the

Legislative Assembly and shall vacate his or her office, if the Deputy

Speaker:

(a) ceases to be a Member of Parliament; or

(b) is appointed to be a Minister; or

(c) is elected to be Speaker.

(3) Subject to the provisions of this Constitution, the functions conferred

under the provisions of this Constitution upon the Speaker shall, if

there is no person holding the office of Speaker or if the Speaker is

absent from Samoa or is otherwise unable to perform those functions,

be performed by the Deputy Speaker.

51. Clerk of the Legislative Assembly:

There shall be a Clerk of the Legislative Assembly.

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52. Meetings of the Legislative Assembly:

The Legislative Assembly shall meet at such times and at such places as the

Head of State appoints from time to time in that behalf by notice published

in the Samoa Gazette and recorded in the Savali:

PROVIDED THAT the Assembly shall meet not later than 45 days after the

holding of a general election and at least once in every year thereafter, so

that a period of 12 months shall not intervene between the last sitting of the

Assembly in one session and the first sitting thereof in the next session.

53. Standing Orders:

Subject to the provisions of this Constitution, the Legislative Assembly may

make, amend and repeal Standing Orders regulating its procedure.

54. Languages:

(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.

55. Presiding over Legislative Assembly:

The Speaker, or in his or her absence the Deputy Speaker, shall preside over

sittings of the Legislative Assembly. In the absence from any sitting of both

the Speaker and the Deputy Speaker, the Members of Parliament present

shall choose one of their number (not being a Minister) to preside over that

sitting.

56. Proceedings are valid:

The Legislative Assembly shall not be disqualified for the transaction of

business by reason of any vacancy among the Members of Parliament,

including any vacancy not filled at a general election, and any proceedings

therein shall be valid notwithstanding that some person who was not

entitled to do so sat or voted in the Assembly or otherwise took part in the

proceedings.

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57. Quorum:

No business shall be transacted at any sitting of the Legislative Assembly if

objection is taken by any Member of Parliament present that the number of

Members present is (besides the Speaker or other Member presiding) fewer

than one-half of the total number of Members of Parliament (excluding

vacancies).

58. Voting:

(1) Except as otherwise provided in this Constitution, every question

before the Legislative Assembly shall be decided by a majority of the

votes of the Members of Parliament present.

(2) The Speaker, or the Deputy Speaker or any other Member of

Parliament while presiding over a sitting of the Legislative Assembly

in the absence of the Speaker, shall not have a deliberative vote but, in

the case of an equality of votes, shall have a casting vote.

59. Introduction of bills, etc., into Legislative Assembly:

Subject to the provisions of this Part and of the Standing Orders of the

Legislative Assembly, any Member of Parliament may introduce any bill or

propose any motion for debate in the Assembly or present any petition to

the Assembly, and the same shall be considered and disposed of under the

provisions of the Standing Orders:

PROVIDED THAT, except upon the recommendation or with the consent

of the Head of State, the Assembly shall not proceed upon any bill which,

in the opinion of the Speaker, the Deputy Speaker or other Member of

Parliament presiding, would dispose of or charge the Treasury Fund or any

other public fund or account, or revoke or alter any disposition thereof or

charge thereon, or impose, alter or repeal any tax, rate or duty.

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60. Bills assented to become Acts of Parliament:

(1) No bill shall become a law until the Head of State has given his or her

assent thereto.

(2) Whenever a bill which has been passed by the Legislative Assembly is

presented to the Head of State for his or her assent, the Head of State

shall, acting on the advice of the Prime Minister, declare that he or she

assents to the bill or that he or she refuses his or her assent to the bill.

(3) A law assented to by the Head of State as herein provided shall be

known as an Act of Parliament and shall come into force either on the

day on which it is assented to, or on any date (whether earlier or later

than the date on which it is assented to) specified in that behalf in the

Act.

61. Oath of allegiance:

Except for the purpose of enabling this Article to be complied with and for

the election of a Speaker, no Member of Parliament shall sit or vote in the

Legislative Assembly until the Member shall have taken and subscribed

before the Assembly an Oath of Allegiance in the form set out in the Third

Schedule.

62. Privileges of Legislative Assembly:

The privileges, immunities and powers of the Legislative Assembly, of the

committees thereof and of Members of Parliament may be determined by

Act:

PROVIDED THAT no such privilege or power may extend to the

imposition of a fine or to committal to prison for contempt or otherwise,

unless provision is made by Act for the trial and punishment of the person

concerned by the Supreme Court.

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(See the Legislative Assembly Powers and Privileges Ordinance 1960.)

63. Prorogation and dissolution of Legislative Assembly:

(1) The Head of State may at any time, by notice published in the Samoa

Gazette, prorogue the Legislative Assembly.

(2) If, at any time, the office of Prime Minister is vacant, the Head of State

shall, by notice published in the Samoa Gazette, dissolve the

Legislative Assembly as soon as the Head of State is satisfied, acting

in his or her discretion, that a reasonable period has elapsed since that

office was last vacated and that there is no Member of Parliament

likely to command the confidence of a majority of the Members.

(3) The Head of State may at any time, by notice published in the Samoa

Gazette, dissolve the Legislative Assembly, if the Head of State is

advised by the Prime Minister to do so, but shall not be obliged to act

in this respect in accordance with the advice of the Prime Minister

unless the Head of State is satisfied, acting in his or her discretion,

that, in tendering that advice, the Prime Minister commands the

confidence of a majority of the Members of Parliament.

(4) The Head of State shall dissolve the Legislative Assembly at the

expiry of 5 years from the date of the last preceding general election, if

it has not been sooner dissolved.

64. General elections:

There shall be a general election of the Legislative Assembly at such time

within 3 months after every dissolution of the Assembly as the Head of

State appoints by notice in the Samoa Gazette.

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PART VI

JUDICIARY

65. Constitution of the Supreme Court:

(1) There shall be a Supreme Court of Samoa, which shall be a superior

Court of record and shall consist of a Chief Justice and such number

of other Judges as may be determined by Act.

(2) The Chief Justice of the Supreme Court shall be appointed by the

Head of State, acting on the advice of the Prime Minister.

(3) A person shall not be qualified for appointment as a Judge of the

Supreme Court unless the person:

(a) possesses such qualifications as the Head of State, acting on the

advice of the Judicial Service Commission, may prescribe; and

(b) has been in practice as a barrister in Samoa, or in an approved

country, or partly in the one and partly in the other, for a period

of, or periods amounting in the aggregate to, not less than 8

years.

(4) In computing, for the purposes of sub-clause (b) of clause (3), the

period or periods during which any person has been in practice as a

barrister, any period or periods during which the person has held

judicial office in a Court of superior or subordinate jurisdiction in

Samoa or an approved country shall be included.

(5) For the purposes of this Article or of clause (4) of Article 75 or of both

of them, the Head of State, acting on the advice of the Judicial Service

Commission, may designate as an approved country any country

which, in the opinion of the Commission, has a legal system similar to

that existing in Samoa.

66. Powers of Judges of the Supreme Court:

Each Judge of the Supreme Court or any 2 or more Judges may, in any part

of Samoa and at any time or place, exercise all the powers of the Supreme

Court.

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67. Oath of office:

Every Judge of the Supreme Court shall, before assuming the functions of

his or her office, take and subscribe before the Head of State an oath in the

form set out in the Third Schedule.

68. Tenure of office:

(1) Except in the case of an appointment made under the provisions of

clause (2), a Judge of the Supreme Court shall hold office until the

Judge reaches the age of 68 years:

PROVIDED THAT the Head of State, acting (in the case of the Chief

Justice) on the advice of the Prime Minister or (in the case of any other

Judge of the Supreme Court) on the advice of the Judicial Service

Commission, may extend the period of office of a Judge who has

reached the age of 68 years.

(2) A person of any age who is not a citizen of Samoa and who is

qualified for appointment under the provisions of clause (3) of Article

65 may be appointed to hold office as a Judge of the Supreme Court

for a term of years.

(3) Nothing done by a Judge of the Supreme Court in the performance of

his or her functions shall be deemed to be invalid by reason only that

the Judge has reached the age at which he or she is required by this

Article to retire or that his or her term of office has expired, as the case

may be.

(4) A Judge of the Supreme Court may resign his office by writing under

his or her hand addressed to the Head of State.

(5) A Judge of the Supreme Court shall not be removed from office,

except by the Head of State on an address of the Legislative Assembly

carried by not less than two-thirds of the total number of Members of

Parliament (including vacancies), praying for his or her removal from

office on the ground of stated misbehaviour or of infirmity of body or

mind.

(6) The Head of State, acting (in the case of the Chief Justice) on the

advice of the Prime Minister or (in the case of any other Judge of the

Supreme Court) on the advice of the Judicial Service Commission,

may at any time when the Legislative Assembly is not meeting

suspend a Judge of the Supreme Court from his or her office, and

51

such suspension, unless previously revoked, shall continue in force

until the end of the next ensuing session and no longer.

69. Salaries of Judges of the Supreme Court:

The salaries of Judges of the Supreme Court to whom clause (1) of Article

68 applies shall be determined by Act and shall be charged on the Treasury

Fund. The salaries of such Judges shall not be diminished during their

period of office, unless as part of a general reduction of salaries applied

proportionately to all persons whose salaries are determined by Act.

70. Acting Chief Justice:

(1) While any vacancy exists in the office of Chief Justice or during any

absence from Samoa of the Chief Justice, the senior Judge of the

Supreme Court shall have authority to act as Chief Justice and to

perform the functions of the office of Chief Justice.

(2) Wherever by reason of illness or any cause other than absence from

Samoa the Chief Justice is unable to perform the functions of the office

of Chief Justice, the Head of State, acting on the advice of the Prime

Minister, may authorise the senior Judge of the Supreme Court to act

as Chief Justice until the Chief Justice resumes those functions, and,

during that period, to perform those functions.

(3) The authority conferred on the Acting Chief Justice under the

provisions of this Article shall not include power to preside over the

Court of Appeal unless he or she is qualified by virtue of his or her

seniority to preside thereover, under the provisions of clause (3) of

Article 75.

71. Acting Judge of the Supreme Court:

(1) If the office of any Judge of the Supreme Court (other than the Chief

Justice) is vacant or if any such Judge is unable to perform the

functions of his or her office, the Head of State, acting on the advice of

the Judicial Service Commission, may appoint a person qualified

under the provisions of clause (3) of Article 65 to be temporarily a

Judge of the Supreme Court:

52

PROVIDED THAT a person may be so appointed notwithstanding

that the person has attained the age of 68 years.

(2) A person appointed under the provisions of clause (1) to be

temporarily a Judge of the Supreme Court shall hold office for the

period of his or her appointment or, if no such period is specified,

until his or her appointment is revoked by the Head of State, acting

on the advice of the Judicial Service Commission:

PROVIDED THAT the person may at any time resign his or her

office by writing under his or her hand addressed to the Head of

State.

72. Judicial Service Commission:

(1) There shall be a Judicial Service Commission, which shall consist of:

(a) the Chief Justice, as President;

(b) the Attorney-General or, if for any reason the Attorney-General

is unable to act, the Chairman of the Public Service Commission;

(c) a person nominated from time to time by the Minister of Justice.

(2) No business shall be transacted by the Judicial Service Commission

unless 3 members are present, and all questions proposed for decision

by the Commission shall be decided by a majority of the votes of

those members.

(3) The power of appointing, promoting and transferring any judicial

officer, other than the Chief Justice, and of dismissing any judicial

officer, other than a Judge of the Supreme Court, is hereby vested in

the Head of State, acting on the advice of the Judicial Service

Commission.

73. Jurisdiction of the Supreme Court:

(1) The Supreme Court shall have such original, appellate and revisional

jurisdiction as may be provided by Act.

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(2) Without prejudice to any appellate or revisional jurisdiction of the

Supreme Court, where in any proceedings before another Court

(except the Court of Appeal) a question arises as to the interpretation

or effect of any provision of this Constitution, the Supreme Court

may, on the application of any party to the proceedings, determine

that question and either dispose of the case or remit it to that other

Court to be disposed of in accordance with the determination.

(3) The Head of State, acting on the advice of the Prime Minister, may

refer to the Supreme Court for its opinion any question as to the

interpretation or effect of any provision of this Constitution which has

arisen or appears likely to arise, and the Court shall pronounce its

opinion on any question so referred to it.

74. Subordinate Courts:

There shall be such subordinate Courts possessing such jurisdiction and

powers as may be provided by Act.

75. Constitution of Court of Appeal:

(1) There shall be a Court of Appeal of Samoa, which shall be a superior

Court of record.

(2) Subject to the provisions of this Part, the Judges of the Court of

Appeal shall be:

(a) the Chief Justice and the other Judges of the Supreme Court;

(b) such persons, possessing the qualifications prescribed under the

provisions of clause (3) of Article 65, as may be appointed from

time to time by the Head of State, acting on the advice of the

Judicial Service Commission.

(3) The Chief Justice shall be President of the Court of Appeal, but, in his

or her absence, the senior Judge of the Court present at the appeal or,

if the Judges so present are of the same seniority, a Judge designated

by the Chief Justice shall preside.

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(4) Judges of the Court of Appeal shall take seniority according to the

respective dates of their first appointment as Judges of a superior

Court in Samoa or in any approved country.

(5) An appointment under the provisions of sub-clause (b) of clause (2)

shall be for a period of time or for the trial or hearing of particular

causes or matters, as may be specified in the instrument of

appointment.

76. Number of Judges:

(1) Any 3 Judges of the Court of Appeal may exercise all the powers of

the Court:

PROVIDED THAT the Court may have its judgment delivered by

any one of its members who is also a Judge of the Supreme Court, and

if there is no such member then through the Registrar of the Court of

Appeal.

(2) The Judgment of the Court of Appeal shall be in accordance with the

opinion of the majority of the Judges present.

77. Judges not to sit on appeals from own decisions:

A Judge of the Court of Appeal shall not sit on the hearing of an appeal

from any decision made by the Judge or by a Court on which the Judge sat

as a member.

78. Oath of office:

Any person appointed under the provisions of sub-clause (b) of clause (2)

of Article 75 to be a Judge of the Court of Appeal shall, on first

appointment, take and subscribe before the Head of State an oath in the

form set out in the Third Schedule.

79. General jurisdiction of Court of Appeal:

Subject to the provisions of this Constitution, the Court of Appeal shall

have jurisdiction to hear and determine such appeals (including

proceedings removed by order of the Supreme Court to the Court of

Appeal) as may be provided by Act.

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80. Jurisdiction on constitutional questions:

(1) An appeal shall lie to the Court of Appeal from any decision of the

Supreme Court in any proceeding, if the Supreme Court certifies that

the case involves a substantial question of law as to the interpretation

or effect of any provision of this Constitution.

(2) Where the Supreme Court has refused to give such a certificate, the

Court of Appeal may, if it is satisfied that the case involves a

substantial question of law as to the interpretation or effect of any

provision of this Constitution, grant special leave to appeal from that

decision.

(3) Where such a certificate is given or such leave granted, any party in

the case may appeal to the Court of Appeal on the ground that any

such question as aforesaid has been wrongly decided and, with the

leave of that Court, on any other ground.

81. Jurisdiction in respect of fundamental rights:

An appeal shall lie to the Court of Appeal from any decision of the

Supreme Court in any proceedings under the provision of Article 4.

82. Definition of “decision”:

In Articles 77, 80, 81 and 119, “decision” includes judgment, decree, order,

writ, declaration, conviction, sentence, opinion or other determination.

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PART VIA

OMBUDSMAN (KOMESINA O SULUFAIGA)

82A. Ombudsman:

(1) There is to be an Ombudsman (Komesina o Sulufaiga) appointed by the

Head of State acting on the recommendation of the Legislative

Assembly.

(2) The Ombudsman is to be appointed pursuant to the selection and

appointment criteria and other terms and conditions provided by Act.

(3) The Ombudsman:

(a) is to be appointed for 6 years; and

(b) is eligible for re-appointment; and

(c) on expiry of the term, continues in office until re-appointed or a

successor assumes the function of the office.

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

(a) are to be determined by Act; and

(b) are to be charged on the Treasury Fund, without further

appropriation than this subclause; and

(c) are not to be reduced during the term of office of the

Ombudsman, unless as part of a general reduction of salaries

applied proportionately to all persons whose salaries are

determined by Act.

(5) The Ombudsman may be removed from office pursuant to the

grounds and procedures provided by Act.

82B. Functions of Ombudsman:

The functions of the Ombudsman are:

(a) to carry out the functions relating to promotion of good

governance in public administration provided by Act; and

(b) to carry out the functions relating to human rights provided by

Act; and

(c) to carry out any other functions provided by Act.

57

PART VII

PUBLIC SERVICE

83. Interpretation:

The "Public Service" means the service of Samoa; but does not include

service remunerated by way of fees or commission only, honorary service,

or service in any of the following capacities, namely as:

(a) Head of State; or

(b) a member of the Council of Deputies; or

(c) Prime Minister or a Minister; or

(d) Speaker or Deputy Speaker; or

(e) a Member of Parliament; or

(f) a Judge of the Supreme Court or any other judicial officer; or

(g) Attorney-General, and officers and employees of the Attorney-

General, whose office shall be called the Office of the Attorney-

General; or

(ga) Director of Public Prosecutions and other prosecutors and

officers and employees of an office of prosecutions established

by Act;

(h) Controller and Auditor General, and other officers and

employees of the Audit Office specified under Article 97; or

(i) a member of the Public Service Commission who is not an

employee of the Public Service at the time of his or her

appointment to be a member of the Public Service Commission;

or

(j) an officer of police or an officer of prisons; or

(k) a member of any uniformed branch of any defense force; or

(l) a sui o le nuu; or

(m) the Clerk of the Legislative Assembly, and the other officers and

employees of the Legislative Assembly.

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84. Public Service Commission:

(1) There shall be a Public Service Commission of Samoa, which shall

consist of not more than 3 persons appointed by the Head of State,

acting on the advice of the Prime Minister.

(2) The Head of State, acting on the advice of the Prime Minister, shall

appoint one of the members of the Public Service Commission to be

Chairman.

(3) No person shall be appointed to be or shall remain a member of the

Public Service Commission, if the person:

(a) is not or ceases to be a citizen of Samoa; or

(b) is or becomes a Member of Parliament.

(4) No member of the Public Service Commission shall hold concurrently

any other office in the Public Service.

(5) The powers of the Public Service Commission shall not be affected by

any vacancy in the number of its members, and any proceedings of

the Commission shall be valid notwithstanding that some person who

was not entitled to do so took part in those proceedings.

85. Term of office:

(1) A member of the Public Service Commission shall be appointed to

hold office for a term of not more than 3 years but shall be eligible for

reappointment.

(2) A member of the Public Service Commission may at any time resign

his or her office by writing under his or her hand addressed to the

Prime Minister but shall not be removed from office except on the like

grounds and in the like manner as a Judge of the Supreme Court.

(3) The Head of State, acting on the advice of the Prime Minister, may at

any time when the Legislative Assembly is not meeting suspend a

member of the Public Service Commission from his or her office, and

such suspension, unless previously revoked, shall continue in force

until the end of the next ensuing session and no longer.

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86. Salaries:

The salaries of members of the Public Service Commission shall be

determined by the Head of State, acting on the advice of the Prime

Minister.

87. Functions of the Commission:

(1) The Public Service Commission shall:

(a) be responsible for -

(i) human resource planning;

(ii) human resource management policy; and

(iii) human resources monitoring and evaluation, for the Public

Service; and

(b) have such other functions as may be provided by Act.

(2) In the performance of its functions, the Public Service Commission

shall have regard to the general policy of Cabinet relating to the

Public Service, and shall give effect to any decision of Cabinet

defining that policy conveyed to the Commission in writing by the

Prime Minister.

(3) An Act of Parliament may designate as a special post any post of head

of department or any post of a corresponding grade; and the Head of

State, acting on the advice of Cabinet after Cabinet has consulted the

Public Service Commission, shall be responsible, in respect of any

post so designated, for appointments, gradings, salaries, promotions,

transfers, retirements, terminations of appointments, dismissals and

discipline.

88. Procedure and Annual Report:

(1) Subject to the provisions of this Constitution and of any law, the

Public Service Commission may:

(a) regulate its procedure (including the fixing of a quorum) in such

manner as it thinks fit; and

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(b) delegate any of its functions to any of its members or to any

person or persons.

(2) The Commission shall make an annual report on its activities to the

Head of State, who shall cause a copy of that report to be laid before

the Legislative Assembly.

89. Public Service Board of Appeal:

(1) There shall be a Public Service Board of Appeal, which shall consist

of:

(a) the Chief Justice or -

(i) a judicial officer nominated by the Chief Justice; or

(ii) a barrister and solicitor of the Supreme Court nominated

by the Judicial and Legal Services Commission;

(b) one person appointed by, and holding office at the pleasure of

the Head of State, acting on the advice of the Prime Minister;

(c) one person, being an officer of the Public Service, elected by the

officers of the Public Service and holding office for a term not

exceeding 3 years.

(2) The Chief Justice or the person nominated by the Chief Justice shall be

Chairman of the Public Service Board of Appeal.

(3) An Act of Parliament may:

(a) prescribe the manner of election of the person to be elected

under the provisions of sub-clause (c) of clause (1);

(b) provide for the appointment of deputies to act for members of

the Public Service Board of Appeal appointed under the

provisions of sub-clauses (b) and (c) of clause (1);

(c) prescribe the jurisdiction of the Board of Appeal to hear and

determine appeals from decisions about human resource

management matters in the Public Service.

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PART VIII

FINANCE

90. Public funds:

There shall be a Treasury Fund and such other public funds or accounts as

may be provided by Act.

91. Restriction on taxation:

No taxation shall be imposed except by Parliament.

92. Public revenue:

All taxes and other revenues and money raised or received by Samoa shall

be paid into the Treasury Fund unless required or permitted by Act to be

paid into any other public fund or account.

93. Payment out of public funds:

No money shall be issued out of the Treasury Fund or any other public

fund or account except in pursuance of a warrant under the hand of the

Head of State.

94. Appropriation of expenditure:

(1) The Minister responsible for finance shall, in respect of every financial

year, cause to be laid before the Legislative Assembly a statement of

the estimated receipts and expenditure for that year, and, unless

Parliament in respect of any year otherwise provides, that statement

shall be so laid before the commencement of that year.

(2) The proposals for all expenditure contained in the estimates (other

than statutory expenditure) shall be submitted to the vote of the

Legislative Assembly by means of an Appropriation Bill.

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(3) If, in respect of any financial year, it is found:

(a) that any expenditure is incurred or is likely to be incurred upon

any service which is in excess of the sum provided for that

service by the Appropriation Act relating to that year; or

(b) that any expenditure (other than statutory expenditure) is

incurred or is likely to be incurred upon any service not

provided for by the Appropriation Act relating to that year; the

Minister responsible for finance shall cause to be laid before the

Legislative Assembly supplementary estimates in respect of that

expenditure, and the proposals for expenditure therein

contained shall be submitted to the vote of the Assembly by

means of a Supplementary Appropriation Bill.

(4) Statutory expenditure, which shall not be submitted to the vote of the

Legislative Assembly under the provisions of this Article, means:

(a) the expenditure charged on the Treasury Fund under the

provisions of Articles 22, 25, 69 and 98; and

(b) such other expenditure as may by Act be charged upon the

Treasury Fund or any other public fund or account and in such

Act be expressly stated to be statutory expenditure.

(5) The Legislative Assembly may approve or refuse its approval to any

proposal for expenditure contained in an Appropriation or

Supplementary Appropriation Bill, but may not increase the amount

or alter the destination of any proposed expenditure.

95. Expenditure in anticipation of appropriation:

If an Appropriation Bill has not become law by the first day of the financial

year to which it relates, the Minister responsible for finance may, with the

prior approval of Cabinet, authorise such expenditure (not otherwise

authorised by Act) as the Minister may consider essential for the

continuance of any services, until an Appropriation Bill becomes law:

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PROVIDED THAT the expenditure so authorized shall not exceed an

amount equal to one-fourth of the relevant vote approved in the

Appropriation Act for the preceding year.

96. Unforeseen expenditure:

A vote for unforeseen expenditure not exceeding 3% of the total

Appropriation Bill shall be included in the annual estimates laid before the

Legislative Assembly. Where, during the period between the passing of the

Appropriation Act for any financial year and the end of the year, it is

desirable that money should be expended in excess of or without

appropriation of the Legislative Assembly, Cabinet or, to the extent that

Cabinet so authorizes, the Minister responsible for Finance may authorise

the transfer of funds to one or more nominated votes from the unforeseen

expenditure vote:

PROVIDED THAT the amount is available to be transferred from the

unforeseen expenditure vote AND the total amount of all sums

appropriated by the Appropriation Act for that year.”

97. Controller and Auditor General:

(1) There shall be a Controller and Auditor General:

(a) who shall be appointed by the Head of State, acting on the

advice of the Prime Minister; and

(b) whose office shall be called the Audit Office.

(2) Before advising the Head of State, the Prime Minister shall consult the

parliamentary committee responsible for Officers of Parliament on the

proposed appointment of the Controller and Auditor General.

(3) No person shall be appointed as Controller and Auditor General

unless the person satisfies the eligibility criteria provided by Act.

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(4) A person shall not be appointed as Controller and Auditor General if

the person has previously been appointed as Controller and Auditor

General or as Controller and Chief Auditor under this Part.

(5) Subject to Article 97A(4), the Controller and Auditor General is an

independent officer of Parliament.

(6) There are no implied functions, powers, rights, immunities or

obligations of the Controller and Auditor General arising from the

Controller and Auditor General’s status as an independent officer of

Parliament.

(7) There are no implied powers of the Legislative Assembly arising from

the Controller and Auditor General’s status as an independent officer

of Parliament and the powers of the Legislative Assembly to act in

respect of the Controller and Auditor General are only those provided

under or by this Part or Act.

(8) Except as provided by Act, the Controller and Auditor General is not

subject to the Act regulating the Public Service.

(9) Other terms of the appointment of the Controller and Auditor General

and the establishment and composition and functions of the Audit

Office are provided by Act.

97A. Responsibilities of Controller and Auditor General:

(1) The Controller and Auditor General is responsible for auditing public

assets, liabilities and equity including public money.

(2) Without limiting clause (1), the Controller and Auditor General shall

audit the Treasury Fund, other public funds and public accounts as

may be established by law, funds and accounts of all Ministries and

other Government and State Offices (including departments of

Ministries, and overseas missions), and funds and accounts of other

public, statutory authorities, local authorities and other bodies as may

be provided by Act.

(3) For the purpose of exercising functions under this Part, the Controller

and Auditor General has other functions, powers, immunities and

independence provided by Act.

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(4) Except as provided by Act, the Controller and Auditor General has

complete discretion in carrying out his or her functions, duties and

powers and is not subject to any direction from any person as to:

(a) whether or not to conduct a particular audit; or

(b) the way in which the Controller and Auditor General is to

conduct a particular audit; or

(c) the priority to be given to any particular audit or other matter.

98. Duty of Controller and Auditor General to report to Legislative

Assembly:

(1) Subject to clause (2), the Controller and Auditor General shall:

(a) report, at least once annually and at such other times as may be

provided by Act, to the Legislative Assembly -

(i) on the results of all audits conducted under this Part or by

Act; and

(ii) draw attention to any irregularities in the accounts,

transactions, processes, systems or operations of the

Treasury Fund or of a public fund, pubic account,

Ministry, office or body audited by the Controller and

Auditor General under Article 97A(2); and

(b) report generally and at least once annually to the Legislative

Assembly on the performance of his or her functions, duties and

powers under this Part or by Act and the operations of the Audit

Office.

(2) A report under clause (1) shall be presented by the Speaker to the

Legislative Assembly.

99. Term of office:

(1) Subject to this Part, a person appointed as Controller and Auditor

General holds office for a term of 12 years.

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(2) If the term for which a person who has been appointed as Controller

and Auditor General expires, that person continues to hold office until

a successor to that person is appointed unless removed or suspended

during the period of expiry.

99A. Conditions of service:

(1) The Controller and Auditor General is entitled to salary, allowances

and other benefits provided by Act.

(2) The salary of the Controller and Auditor General shall not be reduced

during the period of office of the Controller and Auditor General,

unless as part of a general reduction of salaries applied

proportionately to all persons whose salaries are determined by Act.

(3) The allowances and other benefits of the Controller and Auditor

General’s service are not to be altered in any way which reduces any

allowance and benefit conferred on the Controller and Auditor

General arising from the appointment.

(4) The salary, allowances and other benefits under this Part shall be

charged on the Treasury Fund.

99B. Other employment:

Except as provided by Act or authorised by resolution of the Legislative

Assembly, the Controller and Auditor General shall not:

(a) hold any appointment in the Public Service (including in any of

the other capacities under Article 83), other than that of

Controller and Auditor General; or

(b) be a member of any authority or body mentioned under Article

97A(2); or

(c) engage in any paid employment outside the functions of his or

her office.

99C. Rights preserved:

(1) A person who was an officer or employee in the Public Service and

who is appointed as Controller and Auditor General is entitled to

retain all existing and accruing rights as if the service of that person as

Controller and Auditor General were a continuation of service as an

officer or employee in the Public Service.

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(2) During the term of appointment as Controller and Auditor General,

the Controller and Auditor General is entitled to retain existing and

accruing rights as if the Controller and Auditor General had

continued in service as an officer or employee in the Public Service.

(3) If a person ceases to hold office as Controller and Auditor General

and becomes an officer in another capacity or an employee in the

Public Service, the service of that person as Controller and Auditor

General is to be regarded as service in that other capacity or as an

employee in the Public Service for the purpose of determining

accruing rights.

99D. Absence of Controller and Auditor General:

(1) If the Controller and Auditor General is unable to carry out his or her

functions, duties and powers under this Constitution or any other Act

or law because of illness, absence on leave or from Samoa or any other

reason, the person who is appointed by an Act as the Assistant

Auditor must carry out those functions, duties and powers.

(2) If the Assistant Auditor is unable to carry out the functions, duties

and powers of the office of the Controller under clause (1) because of

illness, absence on leave or from Samoa or any other reason, the

Controller must in writing appoint a senior officer of the Audit Office

to carry out those functions, duties and powers.

99E. Resignation of Controller and Auditor General:

The Controller and Auditor General may resign from office by giving the

Head of State a signed letter of resignation.

99F. Removal from office of Controller and Auditor General:

(1) The Head of State may, acting on the advice of the Prime Minister

given pursuant to clause (3), remove the Controller and Auditor

General only in accordance with this Article and only under any of

the grounds set out under clause (2).

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(2) The Controller and Auditor General may only be removed if he or

she:

(a) has been convicted of an offence involving dishonesty

punishable by imprisonment for 12 months or more, or of an

offence under an Act involving evasion of tax;

(b) has become bankrupt or commits an act of bankruptcy under an

Act regulating bankruptcy;

(c) has become, by reason of physical or mental disability, incapable

of performing the functions of the office of Controller and

Auditor General as provided by this Part or by Act;

(d) has, without any lawful or reasonable justification, failed to

discharge any function of the Controller and Auditor General

under or by this Part or by Act;

(e) has engaged in any conduct which places the Controller and

Auditor General in conflict with the functions of the office of

Controller and Auditor General.

(3) Before advising the Head of State under clause (1), the Prime Minister

shall:

(a) consult the parliamentary committee responsible for Officers of

Parliament on the proposed removal of the Controller and

Auditor General; and

(b) lay before the Legislative Assembly a full statement of the

grounds for the removal of the Controller and Auditor General

for a resolution of the Legislative Assembly to be passed by at

least two-thirds of the total number of Members of Parliament

(excluding any vacancy).

(4) The Controller and Auditor General is deemed to be suspended from

office from the date the Prime Minister consults the parliamentary

committee responsible for Officers of Parliament under clause (3)(a),

until a final decision for removal is made.

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PART IX

LAND AND TITLES

100. Matai titles:

A Matai title shall be held in accordance with Samoan custom and usage

and with the law relating to Samoan custom and usage.

101. Land in Samoa:

(1) All land in Samoa is customary land, freehold land or public land.

(2) Customary land means land held from Samoa in accordance with

Samoan custom and usage and with the law relating to Samoan

custom and usage.

(3) Freehold land means land held from Samoa for an estate in fee simple.

(4) Public land means land vested in Samoa being land that is free from

customary title and from any estate in fee simple.

102. No alienation of customary land:

It shall not be lawful or competent for any person to make any alienation or

disposition of customary land or of any interest in customary land, whether

by way of sale, mortgage or otherwise howsoever, nor shall customary land

or any interest therein be capable of being taken in execution or be assets

for the payment of the debts of any person on his or her decease or

insolvency:

PROVIDED THAT an Act of Parliament may authorise:

(a) the granting of a lease or licence of any customary land or of any

interest therein;

(b) the taking of any customary land or any interest therein for

public purposes.

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103. Land and Titles Court:

There shall be a Land and Titles Court with such composition and with

such jurisdiction in relation to Matai titles and customary land as may be

provided by Act.

104. Land below high-water mark:

(1) Subject to the provision of any Act, all land lying below the line of

high-water mark shall be public land.

(2) For the purposes of this Article, the term "high-water mark" means

the line of median high tide between the spring and neap tides.

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PART X

EMERGENCY POWERS

105. Proclamation of Emergency:

(1) If the Head of State is satisfied, acting in his or her discretion after

consultation with Cabinet, that a grave emergency exists whereby the

security or economic life of Samoa or of any part thereof is threatened,

whether by war, external aggression, internal disturbance or natural

catastrophe, the Head of State may by proclamation (hereinafter

referred to as a Proclamation of Emergency) declare that a state of

emergency exists.

(2) A Proclamation of Emergency shall remain in force for a period of 30

days, if not sooner revoked, but the provisions of this clause shall not

preclude the issue of a further Proclamation before the expiry of the

period for which the immediately preceding Proclamation is in force.

(3) If the Legislative Assembly is meeting at the time the Proclamation of

Emergency is made, the Proclamation shall forthwith be laid before

the Assembly.

(4) If the Legislative Assembly is not meeting at the time the

Proclamation of Emergency is made, the Head of State shall appoint a

time for the Assembly to meet which time shall be as soon as the

Head of State, acting in his or her discretion, considers that conditions

make it practicable, and the Proclamation shall forthwith be laid

before the Assembly:

PROVIDED THAT, if not less than one-half of the total number of

Members of Parliament (excluding vacancies) by notice in writing to

the Head of State require that a time for the meeting of the Assembly

be appointed for the purposes of this clause, the Head of State shall

appoint such a time which shall be not later than 7 days after the date

of receipt of that notice.

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106. Emergency Orders:

(1) When a Proclamation of Emergency has been made and so long as it

remains in force, the Head of State may from time to time make such

Orders (hereinafter referred to as Emergency Orders) as appear to

him or her to be necessary or expedient for securing the public safety,

the defence of Samoa and the efficient prosecution of any war in

which Samoa may be engaged, for maintaining public order and the

supplies and services essential to the life of the community, and

generally for safeguarding the interests and maintaining the welfare

of the community.

(2) Emergency Orders may empower or provide for empowering such

authorities, persons or classes of persons as may be specified in the

Orders to make regulations, rules or by-laws for any of the purposes

for which Emergency Orders are authorised under the provisions of

this Article to be made, and may contain such incidental and

supplementary provisions as appear to the Head of State to be

necessary or expedient for making effective the powers conferred

under the provisions of clause (1).

(3) Every Emergency Order, if otherwise valid, shall have effect

notwithstanding anything contained in Part II.

(4) No provision of any Emergency Order, and no regulation, rule or by-

law duly made under the provisions of any such Order, shall be

invalid because it deals with any matter already provided for under

any law or because of any inconsistency with any such law.

107. Orders to be laid before Legislative Assembly:

(1) If the Legislative Assembly is meeting at the time an Emergency

Order is made under the provisions of Article 106, the Order shall

forthwith be laid before the Assembly; and, if the Assembly is not

then meeting, the Order shall be laid before the Assembly as soon as

the next meeting thereof commences.

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(2) When an Emergency Order has been laid before the Legislative

Assembly under the provisions of clause (1), a notice of motion,

signed by 6 Members of Parliament and made within 10 days of the

day the Order was laid before the Assembly, praying that the order be

revoked shall be debated in the Assembly at the first convenient

opportunity within 4 sitting days next after the day on which notice of

motion was given and, if the Assembly resolves that the Order be

revoked, it shall cease to be in force.

(3) All Emergency Orders made under the provisions of Article 106, if not

sooner revoked, shall expire on the date on which the Proclamation of

Emergency ceases to be in force or, where more than one such

Proclamation is made in respect of the emergency, when the last of

those Proclamations ceases to be in force.

(4) The revocation or expiry of an Emergency Order shall not affect the

previous operation thereof, the validity of anything done or omitted

to be done thereunder, or any offence committed or any penalty or

punishment incurred.

108. Restriction on detention:

(1) For the purposes of this Article, there shall be an advisory board,

which shall consist of:

(a) a Chairman appointed by the Head of State from among the

persons who are or have been Judges of the Supreme Court or

are qualified to be Judges of the Supreme Court;

(b) two other members appointed by the Head of State, acting in his

or her discretion after consultation with the Chief Justice.

(2) Where an Emergency Order made under the provisions of Article 106

authorises the detention of any person:

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(a) any person detained under the provisions of that Order shall, as

soon as possible, be informed of the grounds for his or her

detention and, subject to the provisions of clause (3), of the

allegations of fact on which it is based, and be given an

opportunity of making representations to the advisory board

against his or her detention; and

(b) no person shall be detained under the provisions of that Order

for a period exceeding 3 months unless the advisory board has

considered any representations made by the person under the

provisions of subclause (a) and has reported, before the expiry

of that period, that there is in its opinion sufficient cause for the

detention.

(3) This Article shall not require any authority or person who is

authorised to detain any person under any Emergency Order made

under the provisions of Article 106 to disclose facts whose disclosure

would in its or his or her opinion be against the national interest.

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PART XI

GENERAL AND MISCELLANEOUS

109. Amendment of Constitution:

(1) Any of the provisions of this Constitution may be amended or

repealed by Act, and new provisions may be inserted in this

Constitution by Act, if a bill for any such purpose is supported at its

third reading by the votes of not less than two-thirds of the total

number of Members of Parliament (including vacancies) and if not

fewer than 90 days elapse between the second and third readings of

that bill:

PROVIDED THAT no bill amending, repealing or adding to the

provisions of Article 102 or the provisions of this proviso shall be

submitted to the Head of State for assent until it has been submitted

to a poll of the electors on the rolls for the territorial constituencies

established under the provisions of Article 44 and unless it has been

supported by two-thirds of the valid votes cast in such a poll.

(2) A certificate under the hand of the Speaker that a bill has been passed

under the provisions of clause (1) shall be conclusive and shall not be

questioned in any Court.

110. Power of pardon:

(1) The Head of State shall have power to grant pardons, reprieves and

respites, and to remit, suspend or commute any sentence passed by

any Court, tribunal or authority established under the law.

(2) In the exercise of the powers conferred on him or her under the

provisions of clause (1), the Head of State shall act in his or her

discretion after consultation with such Minister as the Prime Minister

shall designate from time to time.

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111. Interpretation:

(1) In this Constitution, unless it is otherwise provided or the context

otherwise requires:

“Act” or “Act of Parliament” means an Act of the Parliament of

Samoa; and includes any Ordinance of the Legislative Assembly

of the Trust Territory constituted under the provisions of the

Samoan Amendment Act 1957;

“Cabinet” means the Cabinet of Ministers;

“Chief Justice” means the Chief Justice of the Supreme Court of

Samoa;

“Court of Appeal” means the Court of Appeal of Samoa;

“Employee of the Public Service” means a person employed in the

Public Service;

“Existing law” means any law in force in the Trust Territory of

Samoa or any part thereof immediately before Independence

Day;

“Head of State” means the Head of State of Samoa;

“High Court” means the High Court of Samoa constituted under

the provisions of the Samoa Act 1921;

“Independence Day” means the day on which this Constitution

comes into force under the provisions of Article 113;

“Judicial officer” means the holder of any judicial office, but does

not include an employee of the Public Service who exercises all

or any of the functions of a judicial office;

“Law” being in force in Samoa; and includes this Constitution, any

Act of Parliament and any proclamation, regulation, order, by-

law or other act of authority made thereunder, the English

common law and equity for the time being in so far as they are

not excluded by any other law in force in Samoa, and any

custom or usage which has acquired the force of law in Samoa

or any part thereof under the provisions of any Act or under a

judgment of a Court of competent jurisdiction;

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“Legislative Assembly” means the Legislative Assembly

constituted under the provisions of Article 44;

“Legislative Assembly of the Trust Territory” means the

Legislative Assembly constituted under the provisions of the

Samoa Amendment Act 1957 and in being immediately before

Independence Day;

“Minister” includes the Prime Minister;

“Office of profit” means any office in the service of Samoa carrying

the right to salary, and includes any office declared by Act to be

an office of profit;

“Officer of the Public Service” means an employee of the Public

Service other than a person employed in a temporary capacity or

on probation;

“Parliament” means the Parliament of Samoa;

“Proclamation” means a proclamation made by the Head of State

under his or her hand and the Public Seal of Samoa and

published in the Samoa Gazette;

“Property” includes real and personal property, any estate or

interest in any real or personal property, any debt, any thing in

action, and any other right or interest;

“Public Seal” means the Public Seal of Samoa;

“Public Service Commission” means the Public Service

Commission of Samoa;

“Salary” includes salary or wages, allowances, superannuation

rights, free or subsidised housing, free or subsidised transport,

and other privileges capable of being valued in money;

“Service of Samoa” means service in any capacity of Samoa; and

includes service in any of the capacities named in sub-clauses (a)

to (k) inclusive of Article 83, but not service in respect of the

Samoa Trust Estates Corporation;

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“Speaker” means the Speaker of the Legislative Assembly;

“Supreme Court” means the Supreme Court of Samoa;

“Samoa Trust Estates Corporations” means the corporation

constituted under that name on Independence Day.

(2) Where in this Constitution reference is made to the Samoa Act 1921 or

to any amendment to that Act, that reference shall be construed as a

reference to the Act of the Parliament of New Zealand bearing the

short title "the Samoa Act 1921" or to the relevant amendment thereto,

including any amendment to that Act of the Parliament of New

Zealand or that relevant amendment.

(3) Unless the context otherwise requires, where in this Constitution

reference is made to a specified Part, Article or Schedule, that

reference shall be construed as a reference to that Part or Article of, or

that Schedule to, this Constitution; and, where reference is made to a

specified clause, sub-clause or paragraph, that reference shall be

construed as a reference to that clause of the Article, that sub-clause of

the clause, or that paragraph of the sub-clause in which the reference

occurs.

(4) Where under the provisions of this Constitution a person is required

to take and subscribe an oath, the person shall be permitted, if the

person so desires, to comply with that requirement by taking and

subscribing an affirmation.

(5) Where in this Constitution reference is made to the functions of any

office, that reference shall, unless the context otherwise requires, be

construed as a reference to the functions of that office and to any

powers and authorities that may lawfully be exercised by, and any

duties that may be required to be performed by, the holder of that

office.

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(6) Where in this Constitution reference is made to any officer by the

term designating his or her office, that reference shall, unless the

context otherwise requires, be construed as a reference to the officer

for the time being lawfully performing the functions of that office.

(7) Where this Constitution confers any power to make any appointment

to any office, the person or authority having power to make the

appointment shall, unless the context otherwise requires, have power,

exercisable in a like manner:

(a) to direct that a person other than the person appointed shall,

during any period that the person appointed is unable to

perform the functions of his or her office owing to absence or

inability to act from illness or any other cause, perform the

functions of that office;

(b) to appoint another person substantively to an office

notwithstanding that there is a substantive holder thereof, when

that substantive holder is on leave of absence pending

relinquishment of his or her office;

(c) to direct that a person shall perform the functions of that office

when no person has been appointed thereto, either until a

contrary direction shall be given by the person or authority

having power to make the appointment or until a person shall

have been appointed substantively thereto, whichever shall be

the earlier.

112. Authoritative texts:

The Samoan and English texts of this Constitution are equally authoritative

but, in case of difference, the English text shall prevail.

113. Coming into force:

This Constitution shall come into force on the day approved by the General

Assembly of the United Nations as the date of the termination of the

Trusteeship Agreement for the Territory of Samoa approved by the General

Assembly on 13 December 1946.

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PART XII

TRANSITIONAL

114. Existing law to continue:

Subject to the provisions of this Constitution:

(a) the existing law shall, until repealed by Act, continue in force on

and after Independence Day;

(b) all rights, obligations and liabilities arising under the existing

law shall continue to exist on and after Independence Day and

shall be recognised, exercised and enforced accordingly; and

(c) proceedings in respect of offences committed against the

existing law may be instituted on and after Independence Day in

that Court, established under the provisions of this Constitution,

having the appropriate jurisdiction, and offenders shall be liable

to the punishments provided by the existing law.

115. Functions of Council of State:

Where the existing law confers any function on the Council of State of

Samoa constituted under the provisions of the Samoa Amendment Act

1959, that function shall be performed by the Head of State, and where any

such function is to be performed by the Council of State, acting by and with

the advice of the Executive Council, that function shall be performed by the

Head of State, acting by and with the advice of Cabinet.

116. Tenure of office of Ministers:

Any person holding office as Prime Minister or as a Minister immediately

before Independence Day shall be deemed to have been duly appointed

thereto under the provisions of Part IV.

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117. First Legislative Assembly:

(1) The Legislative Assembly of the Trust Territory shall continue in

being on and after Independence Day as the Legislative Assembly,

and the members of the Legislative Assembly of the Trust Territory

shall be deemed to have been duly elected as Members of Parliament

under the provisions of this Constitution.

(2) The Speaker and the Deputy Speaker of the Legislative Assembly of

the Trust Territory who are in office immediately before

Independence Day shall be deemed to have been duly elected as

Speaker and Deputy Speaker, respectively, under the provisions of

this Constitution.

(3) The first session of the Legislative Assembly shall commence within 3

months of Independence Day.

(4) For the purposes of the provisions of clause (4) of Article 63, the

general election at which the Legislative Assembly of the Trust

Territory was elected shall be the date of the last preceding election in

respect of the Legislative Assembly in being on and after

Independence Day.

(5) Subject to the provisions of this Constitution, the Standing Orders of

the Legislative Assembly of the Trust Territory in force immediately

before Independence Day shall be the Standing Orders of the

Legislative Assembly, and they may be amended, repealed or added

to under the provisions of Article 53.

(6) If the seat of a Member of Parliament becomes vacant before the date

of the first general election to be held after Independence Day, that

vacancy shall be filled under the law in force immediately before

Independence Day in relation to the filling of vacancies in the

membership of the Legislative Assembly of the Trust Territory.

118. Existing Judges:

Subject to the provisions of this Constitution, a person holding office as a

Judge of the High Court immediately before Independence Day shall, on

and after that day, hold the office of Judge of the Supreme Court on the

same terms and conditions as were applicable to him or her immediately

before Independence Day.

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119. Existing legal proceedings:

(1) All legal proceedings pending in the High Court immediately before

Independence Day shall, on and after that day, stand transferred to,

and be deemed to be pending for determination before, that Court,

established under the provisions of this Constitution, having the

appropriate jurisdiction.

(2) All appeals from the High Court which immediately before

Independence Day lay to, or were pending in, any Court having

jurisdiction to hear such appeals shall, on and after that day, lie to or

stand transferred to, and be deemed to be pending for determination

before, the Court of Appeal.

(3) Any decision of the High Court or of any Court having jurisdiction to

hear appeals from the High Court shall have the same force and effect

as if it had been delivered or made by the Supreme Court or the Court

of Appeals, respectively.

120. Existing officers to continue in office:

Subject to the provisions of this Constitution:

(a) a person who, immediately before Independence Day, holds the

office of Attorney-General or of a member of the Public Service

Commission shall, on and after that day, hold the corresponding

office established under the provisions of this Constitution on

the same terms and conditions as were applicable to him or her

immediately before Independence Day; and

(b) a person who, immediately before Independence Day, is an

employee of the Samoan Public Service referred to in the Samoa

Amendment Act 1949 shall, on and after that day, hold the like

employment in the Public Service.

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121. Laws not brought into force before Independence Day:

Where any Ordinance was enacted or made by the Legislative Assembly of

the Trust Territory and the coming into force of that Ordinance was

suspended, that Ordinance may, on or after Independence Day, come into

force on the date specified therein or as may be specified by any authority

empowered to bring it into force; and, in such case, the Ordinance shall, on

and after that date, take effect as an Act or Parliament.

122. Adaptation of existing law:

Where in the existing law reference is made to Her Majesty the Queen in

right of the Trust Territory of Samoa, to the Crown in right of the Trust

Territory of Samoa, to the Trust Territory of Samoa, to Samoa, or to Samoa,

that reference shall, unless the context otherwise requires, be construed as a

reference to Samoa.

123. Vesting of property:

(1) All property which immediately before Independence Day is vested

in Her Majesty the Queen in right of the Trust Territory of Samoa or

in the Crown in right of the Trust Territory of Samoa shall, on

Independence Day, vest in Samoa.

(2) Subject to the provisions of clause (3), land which immediately before

Independence Day is, under the provisions of the Samoa Act 1921,

Samoan land, European land or Crown land shall, on and after

Independence Day, be held, under the provisions of this Constitution,

as customary land, freehold land or public land, respectively.

(3) All land in Samoa which immediately before Independence Day is

vested in the Crown in right of the Government of New Zealand shall,

on Independence Day, become freehold land held by Her Majesty the

Queen in right of the Government of New Zealand for an estate in fee

simple.

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124. Transitional amendments to Constitution:

No amendments to the provisions of this Constitution shall be made before

Parliament is constituted under the provisions of Part V, except such as the

Legislative Assembly of the Trust Territory may make by Ordinance to

remove any difficulties in the transition from the constitutional

arrangements in force immediately before Independence Day to those

provided for in this Constitution; and any Ordinance made under the

provisions of this Article shall, unless sooner repealed, cease to be in force

at the expiry of a period of 9 months beginning with the day on which the

Legislative Assembly first meets.

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SCHEDULES

FIRST AND SECOND SCHEDULES

(Repealed by Constitution Amendment Act 2015, No.19)

THIRD SCHEDULE

(Articles 28, 49(2), 61, 67 and 78)

FORMS OF OATH

1. Oath of Head of State:

I, ......................................................................................................................., swear

by Almighty God that I will uphold the dignity of the office of Head of State,

and will justly and faithfully carry out my duties in the administration of the

Independent State of Samoa in accordance with the Constitution and the law.

So help me God.

2. Oath of Members of the Council of Deputies:

I, ......................................................................................................................, swear

by Almighty God that I will well and truly serve the Independent State of

Samoa, and will justly and faithfully carry out my duties as a member of the

Council of Deputies in accordance with the Constitution and the law. So help

me God.

3. Oath of the Prime Minister and other Ministers:

I, ................................................................................................................, being

chosen and accepted as Prime Minister [a Minister] and member of Cabinet,

swear by Almighty God that I will to the best of my judgment, at all times

when thereto required, freely give my counsel and advice to the Head of

State, for the good management of the affairs of the Independent State of

Samoa, and that I will not directly or indirectly reveal such matters as shall be

debated in Cabinet and Committee and in Executive Council and committed

to my secrecy, but that I will in all things be a true and faithful Prime

Minister [Minister]. So help me God.

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4. Oath of allegiance to be taken and subscribed by the Speaker and

Members of Parliament:

I, ..............................................................................................................., swear by

Almighty God that I will be faithful and bear true allegiance to the

Independent State of Samoa, and that I will justly and faithfully carry out my

duties as a Member of the Parliament of Samoa. So help me God.

5. Judicial oath to be taken by Judges of the Supreme Court and Court

of Appeal:

I, ................................................................................................................, swear by

Almighty God that I will well and truly serve the Independent State of Samoa

in accordance with the Constitution and the law; and I will do right to all

manner of people, without fear or favour, affection or ill will. So help me

God.

(As to affirmations instead of these oaths, see Article 111(4).)

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REVISION NOTES 2008 - 2015

This is the official version of the Constitution as at 31 December 2015.

This Act has been revised by the Legislative Drafting Division from 2008 to 2015

respectively under the authority of the Attorney General given under the Revision

and Publication of Laws Act 2008.

No general editing has been done to the Constitution in the exercise of the powers

given under section 5 of the Revision and Publication of Laws Act 2008, except the

insertion of correct empowering provisions for the Schedules.

The following amendments have been made:

By the Constitution Amendment Act 2008:

 Article 17 - Repealed.

 Article 95 - The provisio in Article 95 was deleted and substituted with

a new provisio *but the amending Act incorrectly refers to “that year”.+.

 Article 96 - Article 96 was deleted and substituted by its current form.

By the Constitution Amendment Act 2010, No .4:

 Article 46(3) - A new clause (3) was inserted.

By the Constitution Amendment Act 2013, No .17:

 Article 44 - Changes to clause (1) and insertion of clauses (1A) - (1G).

(NB - This amendment commences on polling day of the next general election

as appointed by the Head of State under Article 64 of the Constitution. (See

Section 1(3) of the Constitution Amendment Act 2013, No. 17).

 Article 83(g) - Clause (g) substituted with its current form.

(NB - This amendment commenced 25th June 2013).

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By the Constitution Amendment Act 2014, No.2:

 Article 83(h) Clause (g) substituted with its current form.

 Article 97 substituted.

 Article 97A new Article inserted after Article 97.

 Article 98 substituted.

 Article 99 substituted.

 Articles 99A to 99F new Articles inserted after Article 99.

By the Constitution Amendment Act 2015, No.19:

 Article 6 “Deputy Registrar” replaced with “Assistant Registrar”.

 Article 18 Clause (1) substituted and new clauses (4) to (6) added.

 Article 19 New clause (3) added.

 Article 44 clause (1)(b) substituted and clause (2) repealed.

 Articles 49 & 50 New clauses (1A) and (1B) added.

 Part VIA New Part (Ombudsman) added with new Articles 82A and

82B.

 Article 83 “Pulenuu” replaced with “Sui o le nuu”.

 First and Second Schedules repealed.

 General amendments on gender neutral terms. In some cases, reference

to “person” or designation of office has been used instead.

By the Constitution Amendment Act (No.2) 2015, No. 44 (commences on 1

January 2016):

 Article 41 amended to remove the Attorney General’s prosecutorial

powers.

 Article 41A New Article inserted after Article 41 for the appointment of

the Director of Public Prosecutions.

 Article 83 New sub-clause (ga) inserted exempting the National

Prosecution Office from the Public Service.

This Constitution is administered by the Office of the Attorney-General.