“Electoral Act Exemption Provision Unconstitutional,” says Former Judge

APIA, SAMOA – 27 JULY 2020: Former Judge and former Member of Parliament, Lefau Harry Schuster has criticised the exemption provision in the Electoral Act as unconstitutional and unfair.

The exemption provision allows sitting MP’s to compete in 15 new constituencies under the new boundaries passed by parliament last year despite not satisfying the 3 years residency requirement and service to a village – monotaga.

The new boundaries affect 15 constituencies, 12 in Upolu and 3 in Savai’i and all seats are occupied by the ruling HRPP members.

According to Lefau, Section 15 of the Constitution does not allow endorsement of a law to specifically satisfy anyone’s political need.

“The Constitution is clear under section 15 where it says everyone is equal under any law passed in Parliament. The only two exceptions allowed under the Constitution is a law to enhance the development of children and women,” said Lefau.

The amendments are seen to favour the HRPP candidates.

“When Parliament is dissolved in January 2021, only the HRPP members in the 15 new constituencies will be exempted under the amendments and allowed to run. But the Act disallows other intending candidates from running in the same constituencies in the same general elections.”

‘Nu’u Mavae’ sole decision maker

Lefau is also concerned about the small villages within an electoral constituency not having the right to voice their stance on issues.

Using the electoral constituency of Vaimauga No 4 as an example, Lefau said Apia is the only stand-alone traditional village – nu’u mavae within that constituency which includes Apia, Lalovaea, Tanugamanono, Taufusi and other small villages.

“Apia with its matais, will be the sole decision maker to determine a candidate while other small villages have no say. Before the new electoral boundaries division, Matautu and Apia, both nu’u mavae were under the same constituency and both had a say in fielding their candidates,” said Lefau.

Court challenge electoral amendments

Already, the Electoral Act exemption provisions are being challenged in Court by lawyer Tuala Iosefo Ponifasio.

According to Lefau, the challenge must be dealt with before 12 October 2020 when registration of candidates for the 2021 general election starts.

If the ruling comes in favour of the petitioner, then Parliament will have to make amendments to accommodate all standing candidates before Parliament dissolves.

But if the challenge is unsuccessful, then the exemption remains and stands to benefit the ruling party.

Talamua understands that another petitioner is also filing a separate legal challenge of the electoral amendments.