“Highest Number of Votes is Defined in Constitution” and “Percentage is the Key Word” – Supreme Court Justices

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An application by two women candidates, seeking mandamus orders to direct the Speaker of the House to swear them in as members of Samoa’s parliament, was heard before the Supreme Court on Thursday morning. The Chief Justice of Samoa His Honour Satiu Simativa Perese led the three-bench panel of judges that included Justice Vui Clarence Nelson and Justice Lesatele Rapi Vaai.

“This is an important constitutional matter, relating to the swearing-in of Members of Parliament,” declared the Chief Justice.

Supreme Court judges did not hold back during deliberations with Counsels, stating that the “highest number of votes” was defined by the Constitution, and that “percentage was the key word” in the interpretation being questioned. Judges also queried why the Speaker had not made an application to the Courts to seek clarification, if he was in doubt of an MPs appointment.

Background

Following by-elections in November last year, two women candidates for the Human Rights Protection Party (FAST) were appointed, along with six other MPs under a warrant of election issued  by the Head of State on advice of the Electoral Commissioner in November last year.  Aliimalemanu Alofa Tuuau of Savaii’s Alataua West constituency and Faagasealii Sapoa Feagiai of Upolu’s Aleipata-Itupa-i-Lalo constituency had polled the highest percentage of votes amongst women candidates and were appointed under Article 44 of Samoa’s constitution – a Law that states women representation in Parliament cannot fall below 10%.

Their appointments were set aside by the Speaker of the House, Hon Papalii Lio Taeu Masepau. Initially the reason for not swearing in the additional women candidates was because the election process had not been completed, and election petitions pertaining to the by-elections were pending in Court. Later, however, the Speaker maintained his position to not swear-in the two additional women because an application had been filed before the Courts by Faatuatua i Le Atua Samoa ua Tasi (FAST) woman candidate, Toomata Norah Leota. Toomata’s application questions the Electoral Commissioner’s interpretation of Article 44 in deciding which two women qualify.

In Court on Thursday morning, Aliimalemanu and Faagasealii were represented by former Attorney General Tuatagaloa Aumua Ming Leung Wai.  The Speaker, as the respondent, was represented by Unasa Leilani Vaa-Tamati.

Application for Coercive Orders against Speaker

Tuatagaloa Aumua sought coercive orders to require the Speaker to have Aliimalemanu and Faagasealii sworn in as MPs.

“In the alternative,” said Tuatagaloa, “the applicants seek declaratory orders that the refusal by the respondent to swear in the applicants is unlawful and also discriminatory”.

Tuatagaloa submitted that there were sufficient grounds to issue coercive orders against the Speaker of the House, and set down the basis of his client’s application.

“The facts of this case are straight forward. After the by-elections on the 26th of November last year the Head of State issued a writ of election on the 29th of November. Included in such writ were the results of the by-elections as well as the names of the two women candidates who hold the highest number of votes from both general elections and by-elections, to make up the minimum of 10% women in parliament,” said Tuatagaloa.

“But despite the writ of election signed by the highest office holder of the land namely the Head of State, the respondent refused to have the applicants sworn-in. Up to now, he still refuses to have the applicants sworn in as Members of Parliament; and it is that refusal by the respondent to swear in the applicants that has brought us to court today”.

Tuatagaloa submitted that there were 3 main issues to be considered by the Courts.

Does the Speaker Have Grounds to Oppose the Motion by the Two Women Candidates?

“The first issue, is whether the speaker has any valid or legal grounds to oppose the applicants motion, and the answer is, no, your Honours. The respondent was given the opportunity to amend their notice of opposition yesterday, and there are no valid grounds stated in such notice,” said Tuatagaloa.

“But what the respondent has done; is refer to a different case to justify his refusal to have the applicants sworn in. A case that he has not applied to be joined as party”.

Tuatagaloa submitted that based strictly on legal grounds, the Speaker had presented no valid or legal grounds to oppose his clients’ motion.

Is the Decision Unlawful?

“The second issue your Honours, is whether the decision by the respondent not to swear in the applicants is unlawful and not in accordance with the Constitution,” submitted Tuatagaloa Aumua, “And again the simple answer is, it is unlawful and unconstitutional.”

Tuatagaloa spoke to the timing of when Article 44 is applied, and said the additional women candidates ought to be appointed and be able to participate in Parliamentary proceedings.

“We submit that after the by-elections, that point of certainty was reached, prompting the Head of State to issue a writ of election.. yet despite the writ of election by the Head of State, the Speaker has refused to have the women sworn in..

“Initially the Speaker had cited the election petitions following the by-elections. But, as your Honours are aware, those election petitions have been withdrawn, so currently there are no election petitions before this honourable Court,” continued Tuatagaloa..

“So the point of certainty as required by the Court of Appeal before the minimum 10% of women can be filled, has already been reached.”

“We submit that the women members must now be sworn in as there is no more reason for the Speaker, to prevent such swearing in from taking place”.

Tuatagaloa submitted that Aliimalemanu and Faagasealii are qualified to be members of parliament, having gone through the election process, and having polled the highest number of votes in their respective constituencies. He argued that the delay in swearing them in was an infringement of their Constitutional rights.

“Because they have not been sworn in, they are being declined from sitting in Parliament and participating in the proceedings of Parliament. And yet, this is their right, as afforded by our Constitution, to sit in and participate in the proceedings of Parliament.”

Aumua submitted that the Speaker’s refusal to have his clients sworn in, is unlawful and not in accordance with the Constitution.

Can Coercive Orders be Issued Against the Speaker?

Tuatagaloa submitted that the Court had grounds to discard the non-intervention policy over Parliament, and direct the Speaker in this incidence, because his actions had resulted in a constitutional breach.

“Whilst Parliament has the power to enforce its own proceedings, when it comes to a breach of a constitutional right, where the Speaker has acted capriciously and without legal basis, this honorable Court has the power to intervene and issue coercive orders against the Speaker,” said Tuatagaloa.

The Chief Justice intervened, to clarify that the orders being sought were mandamus orders.

Speaker’s Decision to Not Swear In Members of Parliament Sets a “Dangerous Precedent”

Tuatagaloa submitted that a “dangerous precedent” would be set if the Speaker’s refusal to swear in Aliimalemanu and Faagasealii, goes unchallenged.

“What the honorable Speaker is doing is setting a very dangerous precedent, in that after an election were the HOS has signed the writ of election, the Speaker refuses to comply with the writ of election, and cites a case that he is not a party to, as a reason not to have these members sworn in,”  argued Tuatagaloa, “and that is setting a dangerous precedent.”

“What if, after an election, someone else files a case that may be frivolous?.. Would the Speaker then be able to say, ‘Oh I can’t have these members sworn in unless those cases are sorted out‘” Mr Leung Wai asked rhetorically.

Discrimination  

Tuatagaloa told the Court that it was not right for Aliimalemanu and Faagasealii to be disallowed to participate in Parliament because of a pending challenge before the Courts.

“If that other challenge were to take years to resolve, that would mean our clients would be deprived of their right to sit in Parliament.”

Tuatagaloa argued that the Speaker’s actions can be interpreted as discriminatory, because he went ahead with the swearing-in of by-election winners, even though there were pending election petitions against them.

“Some of those members had election petitions against them, so we can say that there was also some uncertainty about their seats, and yet, the Speaker decided to have them sworn in, but not the female members of parliament..

“And that is the discrimination point that we went to make.”

Tuatagaloa Aumua went further to say that the Speaker should have sought clarification for the appointment of Aliimalemanu and Faagasealii under Article 47 of the Constitution. Article 47 states, “All questions that may arise as to the right of any person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court”.

Justice Nelson intervened to clarify Tuatagaloa’s submission.

“You seem to be saying, Mr Leung Wai, that what he should have done, if he doubted the qualification of membership, is refer the matter to the Court under Article 47, instead of making the unilateral decision, ‘these people don’t qualify, I’m not going to swear them in’, Is that the essence of what you’re saying?”.

“Yes sir,” said Tuatagaloa, “those are our submissions.”

Speaker’s Response – There is Too Much Uncertainty

Unasa Leilani Vaa-Tamati said the Speaker could not swear-in the additional women members because there was too much uncertainty, created by Toomata’s pending challenge in Court.

Unasa spoke to the basis of Toomata Norah’s submission, stating them as reasons for the Speaker’s decision to not swear in Aliimalemanu and Faagasealii.

“It challenges the calculation, it challenges what we mean by 10%, it challenges what we mean by highest number of votes,” said Unasa, “so there are different formulas that she’s proposing”.

Unasa quoted Toomata Norah’s submission that the basis of the calculations which led to the appointment of the additional women members, were unfair.

“She’s the one with more people in her Constituency, she has to work harder, so why should these people be appointed? Why should we take this calculation?” said Unasa, “so there’s issues of fairness and probably discrimination too.”

Unasa quoted case law that stated, once appointed, Members of Parliament cannot be unappointed.  “All these issues and all these matters raise questions and cause a lot of problems to the Speaker”.

Unasa concluded that all these issues of uncertainty, has placed the Speaker “between a rock and a hard place”.

What is the Law?

The Chief Justice intervened to ask, “What is the Law”? to which Unasa responded, “He is to swear in duly elected Members of Parliament.”

“So what you are asking us to consider is that, this Court should come to a position that on the speculative basis that there might be some application that might challenge the status of the Law, he is entitled not to follow this Constitutional duty?” asked his honour the Chief Justice.

Unasa responded, yes, that in light of the uncertainties, the Speaker should be able to defer the swearing in of elected MPs.

No Application Under Article 47

The Chief Justice then questioned Unasa, as to why the Speaker had not filed an application under Article 47.

Unasa responded that the Speaker did not seek the Court’s advice because by that time, Aliimalemanu and Faagasealii had already filed their applications in Court (leading to current proceedings).

“That’s not a good enough answer,” said the CJ. “Because these are important constitutional issues..”

“What he’s done, if this is in fact what he’s done, is, he has piggy backed on a third party… where is his application under Article 47?” asked the CJ again. “This Court in previous decisions has been invited to make applications under Article 47 where there has been some uncertainty.. where is his application?”.

Moving forward Unasa submitted that the Speaker had no intentions to cause any confusion, but sought the Court’s guidance on the issues. Unasa again referred to the Application by Toomata Norah that challenges both the Head of State’s writ, and the Electoral Commissioner’s application of Article 44, stating that the result of this challenge, would have an impact on the Speaker’s decision.

“The Highest Number of Votes” is Defined Under Art 44(5)

Justice Lesatele Rapi Vaai asked Unasa if the Speaker was questioning the accuracy of the calculations that led to Aliimalemanu and Faagasealii’s appointments.

Unasa responded that the Speaker’s position was that he does not have a view, but awaits the decision of the Court, to decide those matters.

“What does Article 44 say?” asked Justice Lesatele. “Doesn’t it say ‘the highest number of votes‘ in a constituency?”

“According to the Electoral Commissioner, Aliimalemanu and Faagasealii have the highest number of votes,” said Justice Lesatele. “I think your bringing in of those formulas has complicated a very simple constitutional issue,” stated the judge.

Unasa responded that Toomata Norah Leota is questioning the meaning of the phrase, “highest number of votes”.

Unasa said the Speaker is happy to sit by and await the end result of the Court’s interpretation of this phrase, to which Justice Lesatele Rapi asked, “Is that a matter for the Court, or Parliament?”

Justice Vui Clarence Nelson interjected to state that the “highest number of votes” was defined in the Constitution under Article 44(5).

“The Speaker is seeking to rely on an argument that would seem to be a non-argument, because as Justice Lesatele has pointed out, “highest number of votes” is defined, in Article 44(5). It means, the percentage of the total valid votes in a constituency…”

“That is the method of calculation prescribed by the Constitution,” said Justice Vui.

“Now, surely,” stressed Justice Vui, “do we need that to be interpreted by a Court of Law?”

Unasa responded that Toomata Norah’s understanding is quite different, and quoted Toomata’s affidavit that only the numerator was defined.

“Percentage” is the Key Word

The Chief Justice interjected that the word “percentage” is the key word.

“The word percentage, Ms Tamati, the word percentage is the key word,” said the Chief Justice Satiu. “So while you’re saying that there is an identified numerator but no denominator, the fact that the word percentage is used means that there must be a determinant, and that determinant is the number of valid votes in the constituency”.

The Chief Justice once again stressed that the Speaker was relying on an argument that was not his. Unasa acknowledged this, however, submitted that it did, still raise uncertainties as to who the additional members would be.

Justice Nelson asked Counsel to explain what was uncertain about it.

“What is uncertain about that Counsel? Please make us understand why your client is relying on an interpretation that is uncertain?..”

Unasa submitted that her client did not have a view on the matters, and would await the Court’s decision as to the clarifications.

“No no no, you do have a view on it,” responded Justice Vui Clarence Nelson, “because your client is relying on it, as the reason for not swearing in these ladies. So you do have a view on it. Your client’s view is, that it creates an uncertainty.. The question from the Court is, what uncertainty?”

Unasa again argued that her client does not wish to take a position, to which Justice Vui disagreed.

“We’re going around in circles Counsel, you are taking a position,” said Justice Vui. “The Speaker is taking a position on it, by refusing to swear-in, on the basis of that interpretation. He is taking a position. You cannot come and say he’s not taking a position.. It would be not taking a position, if he used Article 47 and asked the Court, but he hasn’t done that…”

The Court has reserved its decision.