A three-panel sitting of Samoa’s Supreme Court were prepared to hear a motion filed by Faatuatua i Le Atua Samoa ua Tasi FAST party this afternoon, to challenge the decision by the Office of the Electoral Commission to add an extra seat to Samoa’s Parliament through an interpretation of the temporary special measure that requires women to hold a minimum 10% of seats.
Presiding over the matter were Acting Chief Justice Mata Keli Tuatagaloa, Justice Vui Clarence Nelson and Justice Lesa Rapi Vaai.
FAST is seeking to declare the activation of Article 44 (1A) of Samoa’s Constitution as unlawful and unconstitutional and to declare the warrant issued by the Head of State appointing one more woman to Parliament, as unlawful and void.
Proceedings began with the acknowledgement of a strike out motion filed by the Attorney General, to be removed as a respondent.
Former Attorney General Aumua Tuatagaloa Ming Leung Wai represented newly elected 52nd Member of Parliament Aliimalemanu Alofa Tuuau, and also applied to have his client released from proceedings.
Justice Lesatele Rapi Vaai agreed, stating Aliimalemanu being named as third respondnent was “unacceptable”.
Justice Vui on the other hand was not satisfied with the lack of legal arguments presented by FAST party lawyers, Mauga Precious Chang and Muriel Lui.
“You have to tidy up these matters before the case proceeds..and bring forth legal basis..,” said Justice Nelson..
“First, what are the grounds for your motion that the decision by OEC is unlawful and secondly, why is the AG cited as the first respondent?” asked Vui.
Justice Vui reminded the FAST legal team that the Office of the Electoral Commission (OEC) is set up by an Act of Parliament.
“Claim AG as a party with OEC if you want..,” advised the Supreme Court Justice.
Acting Chief Justice Tuatagaloa then directed Mauga and Muriel to set their grounds as to why the decision is unconstitutional and unlawful..giving them 24 hours to have these filed to the Court. To be filed and served by 3pm tomorrow, Friday 23rd April 2021.
Responding to questions from Samoa Global News Faimalomatumua Mathew Lemisio said the “presently 5” as written in the Constitution refers to the 49 Seats that existed when this Amendment was passed in 2013.
“Now that there are 51 seats in Parliament, the explanatory memorandum that explains this change specifically states, that if the number of seats in Parliament increases, then the number of women representatives must also “automatically” increase”, explains the Electoral Commissioner.
The Faatuatua i Le Atua Samoa ua Tasi party leader Fiame Naomi Mataafa has a different interpretation and says the Law is very clear and specifically states that the minimum number of women is 5, to remove any doubt”.
Fiame added, the intention of the Temporary Special Measure (TCM) is to provide a floor and the only time the minimum number should be interpreted as 6, is if the Legislative Assembly of Samoa has a total of 60 seats.
The matter is adjourned to next week Monday 26th April 2021 at 12pm.
What Article 44 (1A) says
(1A) Subject to this Article, women Members of the Legislative Assembly shall:
(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).
And to work out the “highest number of votes”..
Section 44 (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).