Court
Why Elected Candidate Seu’ula Ioane must be part of the motion
The elected candidate for Alataua West, Seu’ula Ioane who is a joiner in the motion to declare void Ali’imalemanu Alofa Tu’u’au’s appointment.
By Lagi Keresoma
APIA, SAMOA – 29 APRIL 2021: Under the Constitution of the Independent State of Samoa, Parliament should be formed after 45 days of the general election.
Counting from the 9th April 2021 when the election took place, 20 days have passed (counting the weekends) with 25 days remaining.
If after 45 days and no Parliament is formed, then the result of the general election on the 9th April will be annulled, meaning every candidate that won in the election will lose their seats and Samoa will return to the polls for another election.
This was the basis of Faatuatua I le Atua Samoa ua Tasi (FAST) party lawyer Muriel Lui’s argument on the eligibility of the Alataua West winning candidate, Seu’ula Ioane as the second applicant or joiner in their original application.
FAST and Seu’ula’s motion seek to declare void the appointment of Ali’imalemanu Alofa Tu’u’au by warrant as the sixth woman Member of Parliament.
The right to challenge the Constitution
In the strike out motion presented by Fuimaono Sefo Ainuu of the Attorney General office for the Office of the Electoral Commissioner (OEC), they argued that Seu’ula cannot be a ’joiner’ because he did not satisfy the requirements of section 4 of the Declaratory Judgement Act 1988. (NB: The strike out motion was dismissed yesterday).
The requirements are that Seu’ula is a citizen of Samoa and he must prove how the case will have an effect on him.
Muriel referred to section 41(b) of the Constitution “….where a person claims to be in any other manner interested in the construction or validity….”
In clarifying the issue, Justice Niava Mata Tuatagaloa asked Muriel to elaborate more on it.
Justice Niava wanted to know if the person that made the decision, was the same person to bring the matter to Court.
“That would be the Electoral Commissioner, it’s his decision and the only one that can bring the matter to Court,” said Muriel.
“And you are saying you do have the right under section 41(b),” asked Niava.
“Yes, “where a person claims to be in any other manner interested in the construction or validity ….” and that is what we are relying on, so FAST party and Seu’ula are “person who is other manner” that is not described in this subsection, but interested in the construction and validity of the Constitution,” said Muriel.
FAST Lawyers Muriel Lui and Mauga Precious Chang leaving court.
She also pointed out Article 47 of the Constitution which supports their argument.
“Article 47 is not limited to article 45 and 46, but it not only captures article 45 and 46, but any other questions asked on the membership of Parliament,” she said.
Justice Lesātele Rapi Vaai asked for the basis of Seu’ula’s interest.
“He was elected as the constituency’s MP so he has an interest to be in these proceedings,” said Muriel.
She also pointed to the annulment of the election should after 45 days and still no Parliament is formed and Seu’ula will lose his seat and that’s another evidence of why he is interested to be part of the case.
Muriel believes that rather than the Electoral Commissioner activating Article 44(1A) he should have waited until the final result from the election petitions.
Fuimaono stance remained against Seu’ula having no right to challenge.
“So if he (Seu’ula) does not have the right, is there anyone else in this country who has the right to challenge the Constitution?” asked Lesā.
Who has the power to appoint
On the question of validity of the appointment and who has the legal authority, Muriel said the Electoral Commissioner has no power to make such appointment.
She said under the Electoral Act, it only allows the Electoral Commissioner to follow that procedure under section 84 where the results are polled.
“The election of Ali’imalemanu is under the Constitutional provision which will not provide for the Electoral Commissioner to do the same, in fact it does not mention the Electoral Commissioner, so the power he said he used to activate this article are never questioned and in our view, he does not have that power,” said Muriel.
Vui – “Who does?”
Muriel -“If Article 44(1A) needed to be activated, it goes to the Supreme Court under Article 47, and only the Supreme Court has this power to determine the election of someone to be a MP,” she responded.
Vui – “And who will bring that?”
Muriel – “The Electoral Commissioner, because he deals with the management of the election and if there would be any question, then refer them to the Supreme Court because the Constitution does not provide who makes this appointment. All questions as to memberships come to the Supreme Court.”
Vui – “The problem with your argument as the AG argued is, that is not what Article 44(1A) says. It grants no evidence whatsoever to giving an appointment of an additional member. It just said …”there shall be an additional member”….and does not mention under whose authority. There is a gap.”
Muriel – “Yes, but we say there should be a proper way.”
She believes the activation of Article 44(1A) was prematurely done.
Some of the supporters of both parties leaving court.
The formula for the 10% for women under legal scrutiny
Justice Vui raised the concern in the wording and formula used in the 10% quota system for additional seats for women in Parliament.
His questions were directed at Ali’imalemanu’s lawyer Aumua Ming Leung Wai who was the Attorney General at the time the quota system and the division of electoral constituencies’ borders took place.
Article 44 (1b) uses the words the “… highest number of votes…” and then Article 44(5) defines it “… as being the percentage of the total valid votes …”
Do you think that the highest number of votes refers to the territorial constituency or the highest number of votes?” Vui asked.
Aumua said it refers to the highest number of votes within that constituency.
Trying to understand the logic behind the system, Vui created a scenario to narrow it down.
There are constituencies with 100 voters and the woman polls 50 and gets 50%, there are also constituencies with 1000 voters and the woman polls 100 votes and gets only 10%.
“Under the formula that is presently used in 44(1A), the lady that polled a larger number of votes would be disadvantaged?” he asked.
“Yes Your Honour,” said Aumua.
Aumua further said that, that was one of the reasons they tried to define the electoral boundaries based on the (traditional) fa’alupega a Itumalo.
“So to balance it up they decided to go for the percentage rather than the highest number of votes,” he said.
Vui followed up the point on the disadvantage for the woman that polled the highest number of votes and Aumua said there was another way of looking at it, and that is the disadvantage for constituencies with a small number of voters.
Vui responded with another way of looking at it, and that is looking at the system used. Aumua (who was Attorney General at the time these changes were made to the Electoral Act) said Samoa is the first country to use this system which he believes is unique.
“Then we should blame this all on you,” said Vui and they all laughed.
The hearing for the original application is scheduled for next Wednesday and all parties are to file documents in Court by Monday.
