FAST Party Challenges Head of State’s Call for Fresh Elections

The Head of State announcing live the call for fresh elections on Tuesday night.

By Lagi Keresoma

APIA, SAMOA – 05 MAY 2021: The Fa’atuatua ile Atua Samoa ua Tasi – FAST party is taking legal action against the order made by the Head of State last night calling fresh elections on 21 May 2021.

The presiding judges for today’s proceedings were Justice Niava Mata Tuatagaloa, Justice Vui Clarence Nelson and Justice Lesatele Rapi Vaai.

The matter scheduled today was the substantive hearing of the FAST Party and duly elected member Seuula Ioane’s challenge of the warrant of election signed by the HOS on 19 April 2021, appointing Ali’imalemanu Alofa Tu’u’au under Article 44(1A) of the Constitution.

The Head of States announcement prompted the Attorney General, Savalenoa Mareva Betham-Annandale to file a motion to discontinue the substantive hearing proceedings based on the fact that the warrant has been cancelled.

However, FAST leading counsel, Mauga Precious Chang informed the Court that they will be filling a motion to challenge the order and she also opposed the Attorney Generals motion to discontinue.

“There is an intention to file a challenge on the order made last night, it has not been done because we just received the application today,” Mauga told the court.

She informed the Court that they seek the Court’s clarification of the Constitution interpretation that is still valid and still applies to date.

“These are actions already taken and we are seeking clarification to the constitutionality of actions already taken,” she said.

“Even if there is a new general election, this interpretation of information and clarification will still be valuable in that new election,” Mauga argued.

AG Savalenoa told the Court that she had not had a chance to file an application with regards to the motion against the HOS as time was not on her side, but she asked the Court to consider setting a hearing date to withdraw the motion given that the state of constitutionality is important.

Mauga was quick to point out that this provision remains the same after the next election as there is no Parliament sitting at the moment to quickly change the Constitution.

“It will remain the same so there is no futile exercise and given the timing of everything, we seek that there should not be a separate hearing but for both matters to be heard together with the substantive hearing,” she argued.

So there will be two proceedings before the Court which are the substantive hearing of the appointment of Aliimalemanu and the challenge on the HOS order to void the general election result and call for another election asked Justice Vui.

“Yes, challenging the HOS power to call for a fresh general election,” she said.

FAST Party lawyers Muriel Lui and Precious Chang.

An action ‘spent’ is no longer valid – Attorney General

The Attorney General Savalenoa said that cancelling the warrant means the action has been “spent” and does not exist anymore.

“According to my client, we are looking at the action that has been “spent and has been done” and is no longer valid so it will be an academic exercise,” said Savalenoa.

She also argued that the motion by FAST does target the action of the Commissioner but question on constitutionality and interpretation of article 44 (1) is a question that is not before your Honours.

Justice Niava –  “That’s what you’re saying action been spent, and they (Mauga) are saying that they are filing a motion to challenge that.”

Savalenoa –  “Challenge this action that has been spent your Honour.”

Interpretation and clarity around Article 44 is still a live issue
Justice Niava – Yes, so it will be a matter again that will be before the Court to decide whether what you’re alleging to have been spent is lawful or not and thus to the advice of Mr. Leung Wai as to an appropriate cause for the Court to take.”

Savalenoa – “I take your point your Honour but I beg to differ. The exercise by the Electoral Commissioner on Article 44 (1A) may or may not be called and the challenge on the order by the HOS last night should be taken into account that we await that action when its filed, but there is no such action before the Court.”

Mauga in clarifying their stance informed the Court that they were seeking orders to a credible interpretation of the Constitution and actions that have already been done with the activation of Article 44 (1a)

She further stated that the warrant has been cancelled and the legality of that will be in the later proceedings

“So what we hearing from you, is regardless of the warrant being set aside the issue as to the interpretation and clarity around Article 44 is still a live issue,” said Justice Niava.

Elected MP for Alataua West, Seu’ula Ioane, (far left) who is a party to the FAST legal challenge against the appointment of the additional woman MP.

Former Attorney General and counsel for Aliimalemanu, Aumua Ming Leung Wai said he understood where Savalenoa was coming from to dismiss the proceedings and also Mauga seeking a declaration from the Court that the appointment of his client was unlawful.

“I know and appreciate that there is an important issue here to handle by the court but perhaps the Court would consider another option for these proceedings to be adjourned until we receive the motion that indicate they intend to file a challenge against the HOS order  for another general election,” said Aumua.

Hearing adjourned to Friday
The Court took a 15 minutes recess and returning, they granted FAST a day in Court, and ordered all parties to have their documents filed in Court tomorrow (Thursday) for the hearing on Friday, 7 May.

No one above the law
Before today’s proceedings, Justice Niava Mata Tuatagaloa raised the issues regarding the orders of the Court and this was in particular towards the Attorney General.

Last week, Justice Niava made an order for all parties to file their motions and submissions to the Court by Monday this week. However, the Attorney General failed to comply.

“There is a reason why the Attorney General is called the leader of the Bar,” said Justice Niava.

“Your office leads by example in terms of professionalism and set the standards of conduct for the rest of the Bar which your office has blatantly disregarded, with regards to orders and directions of this Court for filing of your submissions which was supposed to be filed by 3.00pm Monday,” said Justice Niava.

She told the Attorney General that she failed to follow a timeline directed by the Court and also failed as a matter of courtesy to the Court on seeking an extension to filing submissions.

“You are not above the law and your blatant disregard of the Court directive is unbefitting of the Attorney General,” said Justice Niava Mata Tuatagaloa.

The Attorney General, Savalenoa Mareva Betham-Annanadale apologised and she said she could offer an excuse but perhaps the situation she should have undertaken was seek proper leave of the Court for not complying with the orders.

She then tried to identify the factors but Justice Niava told her that those factors should have been provided in the letter when she could not file and there was no need to raise it then.

Counsels Mauga Precious Chang and Muriel Lui represented the FAST Party, the Attorney General Savalenoa Mareva Betham-Annanadale for the Electoral Commissioner and Head Of State, and Aumua Ming Leung Wai for Aliimalemanu Alofa Tu’u’au.