Sixth Woman MP to be decided after Election Petitions

Ali’imalemanu AlofaTu’u’au (far right with yellow scarf) with supporters after the appeal hearing last Friday.

By Lagi Keresoma

APIA, SAMOA – 03 JUNE 2021: The Court of Appeal has upheld the Supreme Court ruling on the Article 44 (1A), that voided Aliimalemanu Alofa Tuuau’s eligibility as the 6th woman Member of Parliament but will be decided after the election petitions and by-elections that may follow.

“Although we have found that 10% means 6 women in Parliament, it remains to be seen whether she will be appointed an additional member to satisfy the 10% requirement. It is only after petitions and by-elections can it be confirmed whether there is a need for recourse to Art. 44(1A) and if there is, whether the Second Appellant (Aliimalemanu) remains eligible to be made an additional member,” said Court of Appeal decision.

The Court of Appeal delivered its ruling yesterday on the appeal against the Faatuatua ile Atua Samoa ua Tasi (FAST) party challenge against the warrant of election that appointed Aliimalemanu as the 6 woman MP on the 20 April 2021.

The Supreme Court ruled in favour of FAST hence the appeal by HRPP and the Attorney General.

In the decision delivered yesterday, the Court of Appeal upheld the Supreme Court rulings on Article 44(1a) to be activated by the Electoral Commissioner and should be activated after the final count of the ballot papers and before reporting to the head of State.

Although the Court of Appeal agrees with the Supreme Court ruling that activation of Article 44(1a) by the Electoral Commissioner on the 20 April 2021 was unconstitutional and that the Warrant of Election appointing the Aliimalemanu Alofa Tuuau as a Member of Parliament is void, their reasons are different from that of the Supreme Court.

“We consider that it is not necessary to refer the matter back to Parliament for clarification. We hold that a plain interpretation of Article 44(1A) provides that the appointment can only be triggered after the final results are known, and this point is reached when the results of the electoral petitions and by-elections, if any, are known,”

They further stated that they consider that this is a principled way by which Art 44(1A) can be triggered, rather than an ad hoc snap shot moment in time approach, which appears to have been adopted by the Commissioner.

“Finally, we allow the appeal on the basis that the majority decision in the Supreme Court is wrong in law as to the number of additional members being 5. We consider that Article 44(1A) is ambiguous as to the ideas that it promotes, and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa. In this case, that means we consider the prevailing measure is a minimum of 10% of women representation, which is 6 women.”

The Court of Appeal commended the Second Appellant, Ali’imalemanu’s tenacity in bringing this appeal which champions women’s representation in Parliament.