The hearing of the FAST motion to declare the Office of the Electoral Commission’s decision to add a 52nd Member of the Legislative Assembly continues today before a panel of three judges in the Supreme Court. Justice Mata Keli Tuatagaloa who has carried the role of Acting CJ for the past six months, is assisted by Justice Vui Clarence Nelson and Justice Lesatele Rapi Vaai.
First called last Thursday 22nd April 2021, today will be the third day of the Court receiving pre-trial motions from the parties involved. FAST political party is represented by Mauga Precious Chang and Muriel Lui. Fuimaono Sefo Ainuu is standing for the Office of the Electoral Commission and the Attorney General. The Member of Parliament announced as the 52nd MP, Aliimalemanu Alofa Tuuau of Alataua Sisifo, also named as a respondent is represented by former Attorney General of Samoa, Tuatagaloa Aumua Ming Leung Wai.
The strike-out motion to have Aliimalemanu Alofa removed as a respondent is expected to be decided today. On Monday FAST lawyers applied to have the winning candidate of Alataua Sisifo, Seuula Ioane, included as a joint applicant with FAST.
The third pre-trial motion before the Courts is the strike-out motion by the OEC that there is no case to be heard. FAST lawyers are to respond to this in Court today.
Unless there are any further pre-trial motions brought forward by lawyers today, proceedings are expected to move forward in this highly anticipated case that has the Samoa election results hinged at the decision.
The role of the Judiciary to interpret and uphold Laws enacted by Parliament has become crucial as Samoa navigates unchartered waters of a hung Parliament following the April 9th general elections. The used-to-be dominant HRPP and the recently established FAST party currently hold 26 seats each, the total number of seats having moved from 51 to 52 with the decision to apply Article 44 (1A) of the Constitution.
The introduction of the much-analysed clause 44(1A) now in question before the Courts, is a Temporary Special Measure (TSM) adopted by Samoa following the 2011 General Elections when only two women were voted in. In response, Samoa introduced this TSM to ensure that going forward, Parliament would have at least 10% women.
The good intentions of 44(1A) is currently under scrutiny, because of the timing of the OEC’s decision to apply it, and essentially add a 52nd MP, announced four days after the official results were released. Additionally, the adding of the 52nd seat, leaves Samoa General election results in a stalemate with the 2 political parties holding 26 seats each.
The debate has been mostly around the interpretation of the somewhat ambiguous wording of the clause:
Members of the Legislative Assembly
44. Members of the Legislative Assembly:
(1) Subject to the provisions of this Article, the Legislative Assembly
shall consist of one member elected for each of 51 electoral constituencies having names, and comprising of villages or sub-villages as are prescribed from time to time by Act.
(Note – clauses (1) and (3) commence on the day the Head of State dissolves the Legislative Assembly under Article 63(4) of the Constitution for the 2021 general elections as per Article 1(2) of the Constitution Amendment Act (No.3) 2019, No. 10)
(1A) Subject to this Article, women Members of the Legislative Assembly
(a) 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
(b) be elected pursuant to clause (1) or become additional Members pursuant to clause (1B), (1D) or (1E).
(1B) If, following any general election:
(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
(b) 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).
(1C) Clause (1B) does not apply if the prescribed number of women are all
elected under clause (1).
(1D) If the seat of an additional Member becomes vacant, it shall, despite Article 48, be filled by the woman candidate (if any) who has the next highest number of votes at the last election or general election.
(1E) Subject to Article 48, if a seat under clause (1) held by a woman
becomes vacant, to which a man is elected to fill that vacant seat, the
woman candidate (if any) with the highest number of votes from that
election or the last election or general election shall become the
(1F) If, in the selection of the required number of women under clause (1B),
(1D) or (1E), two (2) or more candidates have equal number of votes, the additional Member shall be selected by lot before the Electoral Commissioner with the presence of the candidates or their authorised representatives and at least two (2) police officers.
(1G) If a woman candidate becomes an additional Member of a
constituency (irrespective of a woman candidate being elected to that
constituency), no other woman candidate from the same constituency
shall become an additional Member unless there is no other woman
candidate from any other constituency to make up the required
(2) (repealed by the Constitution Amendment Act 2015, No.19).
(3) Subject to the provisions of this Constitution, the mode of electing
members of the Legislative Assembly, the terms and conditions of their membership, the qualifications of voters, and the manner in which the roll for each electoral constituency shall be established and kept shall be prescribed by law.
(4) Members of the Legislative Assembly (including additional
Members) shall be known as Members of Parliament.
(5) 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; “Prescribed number” means the minimum number of woman
Members of Parliament specified under clause (1A).
(Note: Amendments consolidated in Article 44(1A) to (1G) and (5)) commence on polling day of the next general election (2016), as appointed by the Head of State under Article 64 of the Constitution, pursuant to section 1(3) of the Constitution Amendment Act 2013, No. 17).