Samoa 1962 Constitution (reviewed 2017) - Page 3 of 16

Table of Contents

PART III. THE 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 Repealed by clause (5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 eleventh day of May 2007 pursuant to clause (5).

18. Election of Head of State

The Head of State shall be appointed by the Legislative Assembly acting on the recommendation of the party or parties in Government.
A person shall not be qualified to be appointed to the office of Head of State
1. if he is not a person qualified to be elected as a Member of Parliament; or
2. if he does not possess such other qualifications as the Legislative Assembly may determine from time to time by resolution; or
3. if he has previously been removed from the office of Head of State under the provisions of clause (2) of Article 21.
The validity of the appointment of the Head of State shall not be contested in any court.
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 one (1) person to be appointed as Head of State.
The Speaker shall, as soon as possible after receiving the Notice:
1. if the Legislative Assembly is sitting, lay the Notice before the Legislative Assembly to appoint the Head of State; or
2. if the Legislative Assembly is not sitting, fix a date for a sitting of the Legislative Assembly to appoint the Head of State.
The Speaker shall issue and sign the warrant of appointment of the Head of State.

19. Term of office of Head of State

Subject to the provisions of Article 21, the Head of State shall hold office for a term of five years from the date on which he assumes the functions of his or her office:Provided that, notwithstanding the expiry of his or her term, he shall continue to hold office until his or her successor assumes the functions of his or her office or for a period of three months, whichever is the shorter period.
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.
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 five (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 him or her 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

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.
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.
No proposal for the removal from office of the Head of State under the provisions of clause (2) shall be effective unless
1. 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); and
2. a period of at least fourteen days has elapsed between that notice and the debate on the motion; and
3. the motion has been agreed to by not less than two-thirds of the total number of Members of Parliament (including vacancies).
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

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.
Whenever the Chief Justice declares in writing that he is satisfied by evidence, which shall include, where possible, the evidence of the wife and of at least two 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 he is satisfied by evidence that the Head of State is for some definite cause not available for the performance of those functions, 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 Meaole and Malietoa Tanumafili II hold jointly the office of Head of State, the following provisions shall apply:

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.
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.
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

There shall be a Council of Deputies, which shall consist of one, two or three 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.
A person shall not be qualified to be elected as, or to continue to be, a member of the Council of Deputies unless he is qualified to be appointed as Head of State under the provisions of Article 18.
An election of members of the Council of Deputies shall be held as soon as possible after each election of a Head of State: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 four years and nine months and not more than five years and three months.
If at any time the number of members of the Council of Deputies is less than three, 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).
Subject to the provisions of clause (2), a member of the Council of Deputies shall be eligible for re-election.
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.
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.
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 he 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.
A member of the Council of Deputies shall not be qualified to be elected as a Member of Parliament:Provided that the provisions of this clause shall not disqualified a member of the Council from being elected to the office of Head of State.
The Council of Deputies shall determine which of its members shall, from time to time, preside over the Council.
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

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.
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 seven 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 he 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

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
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.

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.