Opinion: ‘One Must Not Judge a Book by its Cover’

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For a country of 200,000 devoted Christians and a people steeped in their culture, Samoa, the jewel of the Pacific (penina o le pasefika) is no stranger to challenges, political aggression and the will to excel and distinguish itself on the world stage, and as a nation she has done just that against all odds as witnessed in decades gone this century.

It was this WILL of the Heart, Soul and Agaga o le FaaSamoa that has stood the test of time, that Samoans have not only chased the many would be conquerors, but subsequently gained its rightful place as a Self governing, Self determined and Self sufficient independent Sovereign Nation.

The Samoan people are known for their Heart, Love, Respect and Belief in their God (Ieova Le Atua Silisili Ese). A people who drew and inspired the famous Scotish author Robert Louis Stevenson to move to this paradise and live amongst the people, and write of his adventures and pen hundreds of famous stories… subsequently, living out his final days, and be entombed in the mountains of  Mt Vaea.

Samoa is a people inspired by folklore heroes like Tuna and Fata who led the battle that ended hundreds of years of Tongan rule over Samoa (and led to the origins of the Malietoa title). But for a People who once stood up to oppressors, and fought off the powerful might of world nations; it is in this current era of Samoa as an independent nation, that one of the most controversial political ironies in modern times, has arisen.

Samoa became Independent to Save itself and maintain its freedom (Tumau le Saolotoga) from conquerors.. only to now experience fragility, and fragmentation of this freedom, and the real possibility of the Rule of Law being compromised due to a political stalemate not from without… but from within its own people and its self governance political system.

The question is …WHY? or more the point HOW?

Recently I watched a TV 1 interview of a retired Supreme Court Judge, Afioga Patu Falefatu Sapolu voicing his views on the current political crisis, albeit a one sided bias perspective on behalf of HRPP since he was a registered candidate for the political party before he pulled out due to health reasons.

I would now like to share my own thoughts or at least, rebut and respond to some of his remarks, which may sound convincing and credible on the surface, for the fact he was the nations longest serving Chief Justice.

But one must not judge a book by its cover (the image of a Retired Supreme Court Chief Justice being the cover), and look deep into the text and beyond, and to see if there is a hidden agenda that personifies  in such views, which I feel… not only falls in the face of a genuine peace making process, but does not uphold the rule of law, and adds fuel to an already unstable political fire, which has been raging since 9 April 2021.

The former Chief Justice argued that no party could lay claim to a majority in Parliament, thereby prolonging political uncertainty.
It would have been [best to be] decided by the mandate of the people of Samoa to choose their elected representatives and give certainty as to who would lead the country for the next five years,” he said.

There are two clear issues contained in such a dubious diatribe.

Firstly.

It is well known that when Independent elected MP Tuala Tevaga Ponifasio moved across to FAST, this gained the winning hand of 26 Seats, and thereby relegate HRPP to opposition with their 25. As such a clear majority was established.

A deep and wide analysis of the sudden, pre-mature activation of Article 44(1A) (the subject of the first legal challenge which has now being settled) in order to “appoint” an additional woman  to equalize the stakes, is beyond the scope of this write up.  Suffice to say, the Court of Appeal has ruled on those issues.  

Not only has the pre-mature appointment of their “additional woman” been thrown out of Court and deemed VOID, kaput, zilch and faaleaogaina…. but the Court also confirmed that in the near future, once petitions and proceedings are finalised, only then will Article 44(1A) even be considered, and as originally intended, ONLY IF the 6th woman has not been attained. (Noting here that it my opinion, this was a move to save them from abyss and not a vote to respect the women movement).

This is an all too important area of discussion, mainly due to the fact that… Should a woman or women become elected in their own right and their own merits, through any pending cases and/or subsequent by-election, Article 44(1A) may not be needed at all.

I would like to add also, in the Supreme Court judgment, nowhere in their Honors “ratio decidendi” does it say that – ONLY AFTER THE PETITIONS AND BY-ELECTIONS HAVE BEEN FINALISED, THAT PARLIAMENT MAY CONVENE (especially in order to pass the budget).

The judgment specifically and only relates to the application or activation of Article 44(1A), and then again… ONLY IF it is warranted pending the outcome of ongoing proceedings.  

The judgment is not a quasi opinion as to the ‘convening of Parliament’ based on the above, as the HRPP universe are now currently singing with the former Chief Justice as their advocate. 

Nor is the absence of commentary by the Court on ‘parliament sitting’  has any bearing on the legitimacy of the ruling, to be wrongly used for that purpose.  

To put it plainly Short & Sweet.

“E maeá loa tagi, cases ma ni by- election, faatoa iloilo loa lea o le 44(1A) poo ua atoa le toaono”. 

“After election petitions and any subsequent by-elections, then assess whether 44(1A) is needed, IF six has not been achieved”.

The judgment and Court says NOTHING about the convening of Parliament AT ALL.

Secondly.

The notion aspired by the HRPP and their leader, and which is now repeated here by retired CJ Patu, that…“It would have been [best to be] decided by the mandate of the people of Samoa to choose their elected representatives and give certainty as to who would lead..” in order to resolve the impasse makes me wonder which planet Patu visited one fine day back on April 9th 2021.

An election was conducted on that day, a Writ of Election was then signed by the Head of State. Subsequently through the Rule of Law, Court decisions  and in order to meet Section 52 of the Constitution of Samoa, Parliament was (eventually) convened and Members of Parliament were sworn in.  Consequently, a new Government was formed, lead by a new Prime Minister Fiame Naomi Mataafa and her newly sworn in FAST Cabinet.

But for the retired Patu, to come out repeating the same tune as HRPP’s leader (only in a different minor key), that no majority was gained, and the nation should therefore go back to the polls, just shows fear and shame for the shocking result, and denial of the true extent of the voice of the people. 

The people’s vote has already been legally cast, and thus their vote should count and be recognized, in accordance with the Constitution.

The former CJ supports Tuilaepa and the rest of the HRPP universe longing to go back to the polls, based on their somewhat lethargic view that “Aliimalemanu is a Member of Parliament” giving them the equalizer.  

However as noted above, the Court has voided her seat, and in recent days, another member has also been voided due to bribery and treating thus relegating HRPP to 24 Seats, worse than when they started singing.

Unfortunately, all of that has fallen on deaf ears and to use a common Samoan phrase about selective hearing.. “O tagata ea e faataga faipepe?” 

And the last time I was at primary school, 26 Seats is two more than 24 seats, thus  constituting a majority.  

But I digress. Back to the former Chief Justice.  

It was  during the registration of candidates back in September 2020 that we read Patu was on a flight headed for New Zealand for health reasons. One does not know if he was medivac’d  or travelled on his own accord, needless to say, we hope that such travels was not at the expense of the Samoa public purse.  Then again it may have been met by the then government’s $10,000 dollar retirement gift, approved by Cabinet. Who knows.

 In any case.

It was a surprise to many, when the Electoral Commissioner published the candidacy list and Patu Falefatu Sapolu’s name appeared. But it wasn’t long before we got confirmation just prior to the election that Patu had pulled out of the race, due to health reasons... ona taunuu ai loa lea o le isi muagagana.., “God Works In Mysterious Ways”.

Patu noted that the Supreme Court was already flooded with election petitions and counter-petitions which could result in an unknown number of by-elections, if candidates are disqualified and found to be in breach of the law.

He also questioned whether the process of undergoing by-elections would, in turn, create its own process of petitions and counter-petitions, further prolonging national uncertainty.

Said Patu

…“The difficulty facing us is that this is to be the process we must now follow, to await the completion of by-elections for only then can we determine any additional women members,” he said. 

“So I put this question, what if, after the by-elections there are further petitions lodged to challenge those by-elections and we must go back to court again? 

“It could mean uncertainty and instability for Parliament and the decision making processes of our country and that is troubling.” 

There is a lot to be said, in the above quote, but I will keep it simple with two views to counter two points of contention:

The first point, relates to his concern, of having any by-elections which would give rise to further petitions or cases lodged challenging results of such by-elections, as a result – dreading going back to the Courts.

It is evident from this observation that he is clearly against any Court intervention, and that the notion of  candidates going back to the Court of law, where justice prevails, to exercise their legal constitutional right, especially when supported by facts and evidence of bribery, does not sit well with the former CJ and the HRPP strategy he advocates for.

It therefore raises a question. 

Has Patu not considered for a moment that, should the nation go back to the polls, for another  general election, there is still the pathway of litigation or course of action available to candidates, and judging by current standards and status quo, we may still end up with 28 or more petitions and counter petitions. 

And who is to say that following another general election and any petitions pertaining to those new elections, that there will be NO by-elections in the future??

There is a saying ‘A Bird in the Hand is Worth Two in the Bush’.

I strongly believe that the current status quo, of continuing with the petitions and to conduct any by-elections resulting from them, is worth more in terms of justice, and upholding the rule of law. 

To simply go back to the polls in order to satisfy what HRPP have been desperately wanting on the back of a weak argument based on a false interpretation of the April 9 election results and in spite of recent Court decisions is to use, confuse and twist the law to suit ones agenda.  

But to complain of the heartache of the pressures of by-election challenges, ignoring that a new general election will also generate similar if not more, court challenges, makes you wonder about the agenda and  motives.

And those motives or hidden agenda is only exasperated by Tuilaepa, who often is often voicing his disgust questioning the reasons for FAST turning to the courts and not choosing to settle or ‘soalaupule’  the issues in some magical way.

Firstly, the former CJ’s position supports HRPP’s call to withdraw all election petitions, and have Aliimalemanu added, and only then will they accept to convene Parliament.  

Without even analyzing the absurdity and weak legal arguments of such a move, it is probably the most ridiculous, outrageous and idiosyncratic thing to come out of the HRPP universe since sliced bread, and to continue with this viewpoint, even when their numbers is now 24 seats, is just…. Unbelievable.

The second point Patu makes here related to above is, NOT going back to the polls, and hence, continuing with the current petitions and any by-elections will mean “..uncertainty and instability for Parliament, and the decision making processes…

Let me try another way.

Patu is concerned that if Samoa does NOT go back for another general election, it will mean uncertainty and instability for Parliament.

Well, all I can say is …

Had Tuilaepa and HRPP accepted their loss with humility (malolo faatamalii), and advised the Head of State to turn up to Parliament on May 24 in accordance with section 52 of the constitution, and to fulfill his proclamation of 20 May 2021, I guess we would not be having this conversation. 

Uncertainty and instability arose when the Constitution was breached, contravening declaratory orders by the Supreme Court, pursuant to the Samoa Declaratory Judgment ACT 1988.

Patu’s desire to go back to the polls, is more to satisfy their longing to retain power, evident in the cunning and deceiving  strategy they attempted to negotiate with FAST.  

For if both parties had withdrawn all petitions, and should the nation go back to the polls, they would reduce their candidates running to benefit their numbers. To allow candidates to pull out but disallow new candidates to run, in what they termed snap election is ludicrous.

Where is the justice and the rule of law, if voters cast a genuine vote but will now be void and everyone be made to go back to the polls?

Voters lined up in Lepea on Friday 9th April 2021 during General Elections.

The continual refusal to convene Parliament for the purposes of passing supply and the new budget, is in itself breaching the rule of law and causing instability.

The Court judgment on the  VOIDANCE or ANNULMENT of  Aliimalemanu, as an additional member solidifies the current  status of election numbers, so that FAST has 26 and HRPP   has 25.  And with the recent  petition for Sagaga No.2 against the winning HRPP candidate, also being VOIDED and Cancelled, with a pending by-election, has clearly given FAST a two vote lead.  

I would like to end with a final remark, on one of Patu’s commentary..

Patu said the necessary officials to form a functional Parliament could only be voted into office by a party which controlled a majority of seats on the floor of the Legislative Assembly. He said that until the issue of post-election legal challenges was resolved no party could confidently claim a majority and appoint positions such as a Speaker. 

In my respectful view, the word ‘majority of all Members of Parliament’ includes not only the Members of Parliament we currently have but includes new members who will be elected after the hearing of election petitions and holding of by-elections,” he said.

I would like to argue TWO  contentious points here.

As noted earlier, a majority of ONE is in essence the same as a majority of TEN or FIFTEEEN etc. The winning side has scored MORE than the losing side, and the Constitution does not weaken its role to uphold the rule of law, merely because there is a majority of ONE  gained by a winning side!

Patu has obviously forgotten that history does not lie.

In 1982 in a span of one year, the government of Samoa changed hands THREE (3) times due to the circumstances at the time.

With that in mind, there is no reason why Parliament cannot  be convened, and transition to the new government initiated, and thus budget and other measures be debated and legally ruled upon by proper legal entities and procedures.

The petitions will continue independent of Parliament sitting, and should there be a majority of seats in the opposing side of the Maota following a final count after by-elections, then it could be dealt with and a new government RE-installed at that given relevant time and a new Legislative Assembly be constituted, IF the numbers dictate.

But to merely use the Courts judgment that activation of Article 44(1A) can only be applied after all petitions and by-elections are finalised, should not be mistaken or construed to mean  Parliament should also wait until the same petitions and cases are decided.

Furthermore, Patu sighted section 111 of the Constitution which defines “Legislative Assembly” to  mean the Legislative Assembly constituted under the provisions of Article 44.

He is correct.

However Article 44 is wide and contains many subsections.

Notably section 44(1A) which specifically refers to the additional woman member and the way it needs to be activated.

There is a saying in Samoa  “E fesili muli mai ia mua mai..”  loosely defined, the one that came AFTER,  listens to the one that came BEFORE.

Firstly the Samoa Constitution currently has 51 constituted electoral constituencies or ITUMALO and nowhere does it say there are 52. As such it is Epic Failure once again, for HRPP to say that there is a 26-26 equal number of seats in Parliament, using their argument that Aliimalemanu should be counted, and as we have seen the court has voided her from oblivion…..for now.

Secondly Section 44 in its entirety is silent on the role an “”EXTRA MEMBER of Parliament”” who was NOT  consitutionally ELECTED, has on the CONVENING of PARLIAMENT…

And as this part of the Samoa Constitution was an amendment or added to the Faavae, it should not have any bearing or weight on the ability of Parliament to be convened and for a legislative assembly to be constituted.

As noted earlier, Parliament can and should be convened with the current 51 Seats, with FAST in majority.  Should the numbers change due to the outcome of petitions and any subsequent by-elections, then Parliament and the new government can cross that bridge when reached, at the conclusion of Court proceedings.

The Constitution has been around since 1962 and has maintained its dignity and has served Samoa for almost 60 years.  I would not think that a minor addition to the wording to meet an additional member who was not elected, should obstruct and delay the convening of Parliament.

And in previous Parliamentary terms, Government was formed whilst petitions were raging in Court, and variations to the seating in Parliament occurred after by-elections. 

And this point is more solidified, if at the end of petitions and by-elections, we have 6 or more women who win on their own merits, thus disqualifying the need to add an additional member to the 51 seats of Samoa’s Parliament.  

However, Patu is merely projecting Tuilaepa’s narrative  to not only deceive the people, but somewhat brainwash the nation into thinking that, all this  instability, and uncertainty was caused by the FAST party. Utter rubbish.

A famous writer ― Bertrand Russell, on Marriage and Morals, said….

“The fact that an opinion has been widely held is no evidence whatsoever that it is not utterly absurd;… indeed in view of the silliness of the majority of mankind, a widely spread belief is more likely to be foolish than sensible.”

I’ll let you ascertain which mankind I’m refering to….or their widely spread beliefs (wink wink).

And as for former CJ  Patu, his declaration as an HRPP candidate for elections questions the integrity of everything you say about all matters because it is obvious you are being a trumpet for your boss.

What is also ironic is that the very thing all HRPP women marched for…. the elevation of women in Parliament, completely ignores the fact that a Woman Prime Minister, with a Woman Treasurer and a Woman Minister of Courts also encapsulates the very thing they are marching for…. or against…. Yeap.. confusing and baffling!

But as the Sao Faapito once said to her ex-Boss in Parliament responding to his rude, misogynous and “disrespectful to women” remarks….

“O lo oe lava lena manatu..”

“That is in your opinion..”

And put that together with “Nofo OE i lalo” to form a complete sentence unsurprisingly and probably why the election got the results it did.

Amazing though, how less than a year, later, the Sao Faapito may be the next Big Boss in Town.

And therein lies the true essence of why Tuilaepa will NOT concede defeat. But that would be for another chapter on another day..

God Bless Samoa.

Taulapapa Victor Washburn TYan