Court
Court reserves decision on application to void appointment of additional women MPs
By Lagi Keresoma
APIA, SAMOA – 22 APRIL 2022: The Supreme Court has reserved its decision on the applications to declare void the appointments of Aliimalemanu Alofa Tuuau and Faagasealii Sapoa Feagiai as the additional women parliamentarians following last Aprils general elections.
The applicants were the Faatuatua I le Atua Samoa ua Tasi – FAST party, and election candidates To’omata Nora Leota and Lolomatauama Eseta Faalata.
The Respondents Aliimalemanu and Faagasealii both competed in the April 2021 general election under the Human Rights Protection Party (HRPP). Both were appointed by two warrants signed by the Head of State.
Former Attorney General, Taulapapa Brenda Heather-Latū and Muriel Lui represented the Applicants and central to their argument was Article 44 (1B) and (15) and Article 44 (1A)-(B).
The Applicants raised two issues:
- What is the correct interpretation of Article 44 (1B) (15) and
- Was the activation of article 44 (1A and (1B) warranted on 29 November 2022.
The Applicants challenged the validity and timing of the activation of Article 44(1A) and the formula used to calculate the eligible women candidates who were appointed as the two additional women parliamentarians.
The Applicants claimed the appointments as unconstitutional, unlawful and should be voided.
The Respondents were the Electoral Commissioner, Office of the Attorney General, Aliimalemanu, Faagasealii and HRPP.
Counsels for the respondents were Fuimaono Sefo Ainuu, Aumua Ming Leung Wai and Lucymarie Sio.
Two separate Writs signed by Head of State
The Electoral Commissioner issued two separate declarations of official results of the by-election on 29 November 2021 and another one on 30 November 2021 on the eligibility of Aliimalemanu and Faagasealii as the additional women Parliamentarian.
Both Warrants were signed by the Head of State.
“The Declaration, the Warrant and the purported appointment of Aliimalemanu and Faagasealii as additional MPs is unconstitutional, unlawful and should be voided,” claimed the Applicants.
Counsel for the Respondents, Aumua Ming Leung Wai explained there was an error in the correct section of the Electoral Act cited in one of the declarations signed by the Head of State, hence the second declaration.
The two additional women MPs, Faagasealii Sapoa Feagiai and Aliimalemanu Alofa Tuuau.
The Warrant on 29 November 2021 had Section 59 (2) which refers to the result of an uncontested election, whereas the correct section 84 (2) was cited in the Warrant of 30 November 2021.
“The timing in which Article 44(1A) was activated and thereby declaring Aliimalemanu and Faagasealii as additional members is correct and if there ever was any doubt, then the withdrawal of the election petitions following the by-elections has removed all doubt about the results of the elections,” said Aumua.
Articles 44 (1A) & (B) of the Constitution stipulate that:
(1A) Subject to this Article, women Members of the Legislative Assembly shall:
- Consist of a minimum of 10% of the Members of the Legislative Assembly specified under clause (1), which for the avoidance of doubt is presently 5 and
- Be elected pursuant to clause (1) or become additional members pursuant to clause (1B), (1D) or (1E)
(1B) If, following any general elections:
- a. All members elected under clause (1) are men, the prescribed number of women candidates (if any) with the highest number of votes shall become additional members, or
- Less than the prescribed number of women candidates are elected under clause (1), the remaining prescribed number of women candidates (if any) with the highest number of votes shall become additional members for the purposes of clause (1A).
He said Article 44 (1A) was not activated prematurely but was done within the time frame stipulated by the Court of Appeal in the case between the Electoral Commissioner and FAST in 2021.
He also pointed out that the Writ issued by the Head of State dated 29th November 2021 is valid and in accordance with the Constitution.
Formula use to determine additional women parliamentarian discriminatory
The Applicants argued that the formula which calculated the highest number of votes and determine the additional women parliamentarians is discriminatory.
In relation to the woman candidate with the “highest number of votes”, Article 44 (5) provides the following definition:
“In this Article, unless the context otherwise requires: “Additional Member” means a woman who is a Member of Parliament by virtue of clause (1B), (1D), or (1E) for the purposes of clause (1A);
“Highest number of votes” means the percentage of the total valid votes in a constituency polled by a woman candidate;”
Taulapapa said for men parliamentarians, it is a straight forward formula of whoever gets the highest vote gets in. But with women, it is decided by a percentage of the highest votes and that makes the formula discriminatory against women.
His Honour Chief Justice Satiu Simativa Perese asked Aumua for his interpretation or definition of “highest votes” and the definition of “percentage of the total valid votes.”
Aumua pointed out that Article 44 (5) is very clear as it does not refer to highest votes but rather the percentage of votes.
His Honour set a scenario where one candidate polled 1000 and another 200 votes.
He said in the mind of a person, the image of the highest number of votes would be the one that polled 1000 votes, however, that is not the case with the percentage calculation.
Aumua said Article 44 (5) is clear, but it is just a matter of “drafting style” or “shortcut” that might create a bit of confusion.
“The formula used by the Electoral Commissioner to calculate the ‘highest number of votes’ is correct and in accordance with Article 44 (1B) and Article 44 (5) of the Constitution,” he said.
Senior Judge Vui Clarence Nelson set another scenario and that was, how to reconcile if there were only 5 women who unsuccessfully competed in the general election.
Should there be a special election just for women to satisfy the provision in the Act? Justice Nelson followed up with another question. Given the many amendments made to the Constitution, he asked Aumua if he knew if Article 44(5) was there in the original Article 44 or was it inserted later by Parliament.
Aumua replied it was always part of the original Article.
Speaker denied being party to the proceedings
The Speaker Papalii Taeu Li’o Masipau applied through counsel Leilani Tamati to be a party to the proceedings, but was opposed by the Respondents.
Leilani submitted that their presence in the proceedings would assist the Speaker in matters of such nature in the future, and their presence would be much of assistance to the Court.
However, the application was declined but they were allowed to sit and observe the proceedings.
The panel of Judges comprised of the Chief Justice Satiu Simativa Perese on video link, Senior Judge Vui Clarence Nelson and Justice Lesatele Rapi Vaai.
The decision is reserved.