Attorney General Opposes Second Applicant in FAST Legal Challenge

Ali’imalemanu Alofa Tu’u’au at centre of legal challenge to declare her appointment void as unconstitutional and unlawful.

By Lagi Keresoma

APIA, SAMOA – 26 APRIL 2021: Lawyer Sefo Ainu’u of the Attorney General’s office representing the Office of the Electoral Commissioner, has opposed the Fa’atuatua ile Atua Samoa ua Tasi – FAST application to have Seu’ula Ioane as a second respondent in their legal argument against OEC.

Seu’ula is the winning election candidate for the Alataua West constituency but the OEC last week activated Article 44 (1A) appointing the former MP Ali’imalemanu Alofa Tu’u’au as the sixth woman MP that triggered the legal arguments before the court.

FAST Application
Last Friday, FAST lawyers filed an amended motion against the appointment of Ali’imalemanu. They also made another application for Seu’ula Ioane as the second applicant.

The original application is for the court to declare void the appointment as unconstitutional and unlawful.

AG opposes application
Justice Lesatele Rapi Vaai questioned the reasons behind the Ainu’u’s rejection of the application.

Ainu’u gave two reasons, one is whether the applicant (Seu’ula) is a citizen of Samoa and secondly, the impact of the case to Seu’ula who is label as a “joiner” in the application.

“So are you saying the intending applicant has no right under the Constitution to challenge the Constitution,” asked Justice Lesatele.

“Yes Your Honour,” responded Ainu’u.

Lesatele pointed out that every citizen of Samoa has a right to challenge the Constitution, then asked Ainu’u if there were any other citizens in this country who have that right.

Ainu’u again said yes then explained his reasons.

Lawyer Sefo Ainu’u of the Attorney General’s office representing the Office of the Electoral Commissioner.

He referred to Section 4 of the Declaratory Act 1988 where it says a Samoa citizen must be someone that is affected by the action taken and the intended applicant in this particular case has not identified how he is affected by the Warrant of Election which appointed Ali’imalemanu as an MP.

“Are you saying the applicant used the wrong method but he has the right to be here?” asked Justice Vui Clarence Nelson.

“That is for the Court to determine Your Honour,” Ainu’u responded.

FAST Response
Lawyer for FAST, Muriel  Lui  said Seu’ula has an interest.

“He is a citizen of this country who is seeking to look at the enactment of the Constitution if it’s accurate or not, and this part of the Constitution affects his constituency, his election of having two MPs from one constituency,” said Muriel.

She informed the Court that they are seeking an interpretation of the Constitution.

Justice Vaai asked if there was a relevant factor of having two MP’s in a constituency in Section 44 (1a)

“No Your  Honour it does not but still, it’s a question of his constituency because he was the one elected during the polls but with the enactment of the constitution for another member, he has an interest for his constituency,” she explained.

Lesa reminded Muriel that two MP’s in one constituency has happened before to which Muriel conceded it had.

“But this is the first time it’s been looked at by the Court,” she responded.

Justice Vaai responded that the Constitution allows it.

“Yes, but was it done properly, lawfully and was it done within the works of the Constitution and that is what we are here to look at,” Muriel responded.

She then pointed out part of the Clarity Judgement Act, where it says “in any other manner interesting in the construction or validity thereof.”

“Even if we were not to call in a strict interpretation of that section, there is that part where it allows for any interests,” she said.

She also highlighted many challenges against the Constitution already dealt with by the Court in the past.

“If the interpretation of my learned good friend is correct, then all cases that came before the Court on Constitutional matters would all be voided,” she said.

HRPP supporters leaving court.

A Member of Parliament or Member of the House ?
Justice Vui referred Muriel to one of their unconstitutional grounds in the application where it says two MP’s for Alataua West.

“So one MP was the elected representative for Alatau I Sisifo, and the other MP was appointed under 44 (1a), but not as a member of the territorial constituency,” he said.

“You can’t say the constituency now has two members, it only had one member but if there is an additional member of the house, not the additional member of the constituency,” he continued.

“Would not that be more correct” to which Muriel quickly conceded to.

Strike out hearing Wednesday
Acting Chief Justice, Niava Mata Tuatagaloa after listening and participating in the discussion adjourned the matter to Wednesday to hear the strike out motions, with the substantive hearing of the original application set down for Friday.

The Court room was packed with supporters of FAST and HRPP.

Outside the court room, police officers were strict in scanning people going into the court room.