Supreme Court dismisses application for Falealupo judiciary review

By Lagi Keresoma

APIA, SAMOA – 25 NOVEMBER 2021: The Supreme Court this afternoon dismissed the application by the disqualified Falealupo election candidate, Tuitogamanaia Dr Peniamina Leavai for a judiciary review of the decision and to postpone the Falealupo by election until a decision is made to the application.

Lawyer for the applicant, Leota Tima Leavai submitted that the decision delivered on Monday this week was “discriminatory, irrational and unreasonable.”

Leota argued that the decision was against the weight of the evidence presented before the Court during the hearing.

She argued that the decision has infringed her client’s fundamental rights under article 9 of the Constitution to a fair trial, in exercising his freedom of religion under article 11, and article 15 which prevents law from being discriminatory.

Although she acknowledged Section 47(5) of the Electoral Act which says “…..the order of the Court cannot be reviewed nor appealed,” she did point out several provisions in the Act and Constitution which gives the Supreme Court jurisdiction to review any decision.

Presiding judges were Justice Tafaoimalo Leilani Tuala-Warren and Justice Fepuleai Ameperosa Roma.

The respondents were the Electoral; Commissioner, Office of the Electoral Commissioner and Fuiono Denina Crichton.

Can the Supreme Court review its own decision?
The Supreme Court decision delivered on Monday this week, was made His Honour the Chief Justice, Satiu Simativa Perese and Justice Niava Mata Tuatagaloa.

Justice Roma questioned the authority of the Supreme Court in reviewing a decision made by the Supreme Court.

Leota in response clarified the distinction between the Supreme Court and the Electoral Court.

“The court that made the decision was the Supreme Court sitting as the Electoral Court,” said Leota

Justice Roma however pointed that it was still the Supreme Court

“Yes, but sitting as the Electoral Court which has a distinctive function particularly with matters that arise from election petitions or challenges,” she said

“You are asking this Court to review a decision made by the Supreme Court itself,” Justice Roma pointed out.

Leota referred to her earlier argument that it was the Electoral Court that made the decision.

Fuiono Denina Crichton (3rd from left) with lawyer Fuimaono Sarona Ponifasio and supporters after Mondays court decision

Application to postpone the Falealupo by-election
The second application was for a stay of proceedings in executing the decision of 22 November that disqualified Tuitogamanaia.

Leota asked for a postponement of the Falealupo by-election until a decision is made to her judiciary review application.

“We ask for a stay of proceedings because this is in the interest of justice to determine our motion for a judiciary review.”

Application based on unhappiness
Counsel for Fuiono, Fuimaono Sarona Ponifasio only took 7 minutes for her submission.

“The application is incompetent because it offends section 47(5) of the Electoral Act 2019 and the Court does not have jurisdiction to entertain the application,” said Fuimaono.

She said the alleged breached that have been submitted on and brought under the guise of these alleged breaches when really, the gist of the submission, is based on the first applicant’s unhappiness with the Court’s decision.

She pointed out that the Court was only interpreting the valid provisions of the Act and applied those legislations to the circumstances of the evidences produced during the hearing.

Based on the applicant’s unhappiness, it appears the submission is made at the wrong forum when it should be addressed before the Law Reform forum.

“The application should not be granted,” Fuimaono submitted.

Counsel for the Electoral Commissioner, Sefo Ainuu also submitted “not to grant the application.”

The decision was delivered at 4.00 this afternoon and reaffirms no by election for Falealupo tomorrow and means the election of the FAST candidate, Fuiono Denina Crichton.