Letter to the Editor: Court of Appeal Decision Puts to Rest Confusion Over 10% Minimum

Caretaker Prime Minister says he is also surprised by the additional seat.



19th November 2022


Democratic Stability requires True Independence of our Judiciary.

The Appeal Court’s decision delivered this week by the independent Judges from New Zealand put to rest the confusion over the 10% minimum for women stipulated in the Constitution which works out at 6 women for the current 17th Parliament.

When this law was first introduced in 2013, I explained very clearly as detailed in the Explanatory Memorandum, the purpose of the Amendment, the formula to choose the additional women MPs, when it is applied and when it is not applied.

I also went on the air many times to clarify the formula the kind that any professional accountant can easily devise.

Still, we were ignored.

As one who pencilled the formula, I thought my clarifications would at least be noted.

What is more surprising was at the time Parliament approved the 10% minimum, every member of the HRPP Caucus including Hon. Fiame Naomi Mata’afa and Hon. Laauli Leuatea Schmidt as Speaker, understood completely the details of the formula.

Fiame, as Minister of Justice then, accompanied by Faimalomatumua Mathew Lemisio, the then Electoral Commissioner, went on a pilgrimage to all women conferences wherever they were held overseas to spread the Good News of Samoa’s famous 10% Constitutional safeguard for the empowerment of Samoan Women to enter Parliament in a most respectful manner of having to go through the actual election process seen then as the most feared baptism of fire for those aspired to enter Parliament.

The formula was first tested in the 2016 General Elections and only 1 additional woman from Gagaifomauga No 3 constituency came in for the 16th Parliament.

Total seats in Parliament then was 49.

The present Parliament has 51 seats and 10% of 51 is 6.

Then suddenly after the General Elections 2021 both Fiame and Laauli, who had become FAST Party members, pleaded ignorance, questioned the 10% minimum, that it was confusing, that it should be 5 not 6.

Our Supreme Court comprising the most Senior Judges of the bench later ruled however, that 10% minimum can be extended to 7 after an earlier Court of Appeal decision by our own Chief Justice who agreed with 6.

This latest Court of Appeal on the interpretation of the formula comprising of Independent Judges from New Zealand, has now given finality that 10% should be 6 for the current Parliament.

And the additional FAST female MP from Solosolo, To’omata Norah Leota, was ruled out of Parliament.

The following lessons from this exceptionally very powerful land mark decision by the Court of Appeal are very important.

First – The fundamental point in law, is Judges must hear the arguments from disputing parties and then decide.

They must never impose their own ideas and give a decision that disputing parties had never raised nor asked for.

Second – Consult Parliament Hanzard records to get the real intention of the law makers.

As well, the contents of the law and Parliamentary practices should be given importance.

Third – There is a clear intention prescribed by the Electoral act not to hinder the Parliamentary process after General Elections through long drawn out election petitions.

“There needs to be a finality of the result of an election as soon as possible after election” to ensure the proper working of the Legislative.

Our Judiciary believes otherwise.

Sixty years of independence and 17 General Elections later, some people are still groping in the dark.

Now the 10% ruling is final but the damage is done.

The Head of States post-election proclamation that the Country must go back for a Snap Election as we had a hung Parliament was correct right at the beginning.

The Constitutional Quorum for our Legislative Assembly to meet following a General Election was not satisfied when the Assembly assembled on 14, 15, 16 Sept 2021.

The 10% required by the Constitution was not met.

And the present Government, sworn in by a business couple instead of the Head of State as stipulated by our Constitution, was declared “unconstitutional and illegal by the Supreme Court” but was later reversed by the Court of Appeal presided over by the Chief Justice Satiu Simativa Perese, whom we had asked to step aside but refused.

These are the historical facts for our future generations to know.

No one should ever falsify the facts of our Political History.

And the names of those responsible shall also be remembered forever to kingdom come.

Tuilaepa Sailele Malielegaoi

Leader of HRPP