In a nutshell the Court of Appeal overturned the Supreme Court’s decision regarding the number of women. However, it upheld the Supreme Court’s ruling that the appointment of the additional woman MP was void.
The Court of Appeal also made it clear that any appointment of an additional woman MP in accordance with section 44(1A) can only be made once all electoral petitions have been heard and any by-elections that may arise due to these petitions have been held, and their final counts confirmed. Only then, once there is certainty as to the final number of men and women elected to Parliament can any additional member(s) be added, IF the number of women elected falls below the 10% threshold which in keeping with the intent of the law, is 6.
Now to examine each point in more detail.
The Court of Appeal’s decision stated that:
1. The Supreme Court’s declaration that “Article 44(1A) should be activated by the Electoral Commissioner” was upheld.
This confirms that it is the Electoral Commissioner’s duty and responsibility to activate Article 44(1A). I do not think there is any controversy over this.
2. The Supreme Court’s declaration that “Article 44(1A) should be activated after the final count of the ballot papers before reporting to the Head of States was overturned. Instead The Court of Appeal ruled that “the determination under Article 44(1A) must be made on the basis of the General Election results as finally determined after the results of any electoral petitions under the Electoral Act 2019 and by-elections pursuant to the terms of that Act.”
This means that Article 44(1A) must only be activated after the results of the General Election are final. This must only take place after ALL electoral petitions have been heard and ALL the results of any by-elections arising from such petitions have been held and their counts finalised. In other words when there is no uncertainty left as to the composition of Parliament. This is the moment when you know for sure the exact number of women and men who have been elected and have no legal challenges against the legitimacy of their election. “Therefore, it is ONLY when there are no more possible changes to the composition of Parliament that Article 44(1A) can be activated.
Part of the reasoning behind this is because the 10% requirement depends on the composition of Parliament following an election and should the composition change due to election petitions and by-elections it could result in problems.
3. That the Supreme Courts declaration that “The activation by the Electoral Commissioner of Article 44(1A) on 20 April 2021 was unconstitutional and that the Warrant of Election issued by the Head of State appointing the Second Respondent as Member of Parliament is void.”
This means that the Court of Appeal agreed with the Supreme Court’s decision to void the appointment of Aliimalemanu Alofa as an additional woman Member of Parliament. Note however, the Court of Appeal says that while their decision agreed with that of the Supreme Court the reasons by which they reached that decision were different. The difference being that the Court of Appeal dose not consider it necessary for the matter regarding the process for the appointment of any additional members to be referred back to Parliament to clarify. The reason for which The Court of Appeal declared the appointment of the 6th woman void is because the composition of parliament is not final. So put simply it says you can appoint a 6th but not yet.”
4. The Supreme Court’s decision with regards to the number of additional members being 5 was wrong. Instead, The Court of Appeal stated that the minimum is 6. The Court of Appeal explained that they came to this decision because they considered “that Article 44(1A) is ambiguous as to the ideas that it promotes, and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa. In this case, that means we consider the prevailing measure is a minimum of 10% of women representation, which is 6 women.”
This seems to be the decision that is causing the most amount of confusion and debate. But to put it simply. The court looked at Article 44(1A) and considered it to be unclear because on one hand it says minimum 10% and on the other it clarifies this as being 5 (when 5/51 is 9.8%). Now, leaving aside the issue of drafting and that of the fact that when the additional seats were added, the clause should have been amended to reflect this, when a legal provision is ambiguous the Court looks at the intent behind the clause. The courts do this because even when a law is ambiguous the Courts will try to ensure that the intention behind it is respected. Usually this is simple when it comes to legislation as you have the records of the Hansard which record everything said in Parliament.
Also, when things are ambiguous as in 10% versus 5 women MPs, the Court will give more importance to an interpretation that, “… promotes the establishment of human rights practice in Samoa.” This primacy accorded to ideas that promote, advance and or increase the respect of human rights is something that the courts are expected to do because the courts have a duty to protect and advance such rights. Not doing so and allowing an ambiguous situation to result in a situation that undermines, weakens or reduces human rights goes against the demands of justice.
To gain a deeper understanding of the Court reasoning you need to read the judgement where they discuss the arguments for and against and explain what factors contributed to them arriving at the decision they made. As it is the Court discusses this at length, but it comes down to this:
Article 44(1A) as it stands gives two results. The first is that 10% of 51 is 5.1. Which means that there should be at least 5.1 women in parliament. In other words, you CANNOT have less than 5.1 women. With all due respect to mathematicians itching to weigh in, this is NOT a mathematical issue. It is a legal issue. The law is clear, you cannot have less than 5.1 so you cannot round down. 5 is less than 5.1 which violates the law. The only way to correct that is to round up to 6. Again, and I cannot emphasise this enough: This is not a mathematical issue but a legal one. It comes down to this: Since you cannot have 5.1 women and having 5 violates the law the only way to satisfy the requirement that there be AT LEAST 10% women in Parliament is to make that 6 women, which then meets the MINIMUM requirement in the Constitution.
But, the second result which takes the words “which for the avoidance of doubt is presently 5” reduces the percentage of women to 9.8%. This, however, clearly contradicts the requirement of 10%. So, there is a clear clash here. On one hand do we increase 5.1 women to 6 to reflect reality and meet the minimum of 10% required by law, or do we take the contradictory wording and allow only 5 which means that there will only be 9.8%.
This where the Court is required to interpret the law and is guided in this by earlier decisions which have addressed similar situations. In doing so the Court looked at three cases:
Attorney General on behalf of the Registrar of the Land and Titles Court v Saipai’a Olomalu
Minister of Home Affairs v Fisher
Pita v Attorney General
In Saipai’a the court notes that “[T]he Constitution be interpreted in the spirit counselled by Lord Wilberforce in Fisher’s case. He speaks of a Constitutional instrument such as this as sui generis; in relation to human rights of a “generous interpretation avoiding what has been called the austerity of tabulated legalism; of respect for traditions and usage which have given meaning to the language; and of an approach with an open mind. This involves, we think, still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way.”
NOTE: Suis generis used to describe a form of legal protection that exists outside typical legal protections. That is, something that is unique or different and must be addressed and judged on its own special case by case merits.
Taking this into consideration what this statement means is that when it comes to Constitutional instruments the Court needs to address human rights issues with greater weight on the side of protecting and/or advancing such rights rather than being legalistic and sticking to a literal and/or limited interpretation. In other words, The Court MUST take a broader approach to interpreting and avoid a narrow interpretation that limits or reduces rights.
Likewise, Minister of Home Affairs v Fisher states that in the process of interpretation, the Court should be “guided by the principle of giving full recognition and effect to those fundamental rights and freedoms”.
The core element of what these cases state is that when it comes to interpreting the constitution the Court must do so in a way that takes into account the intention of the clauses in a way that ensures that rights are fully accorded. It also warns against allowing a strict literal interpretation which would lead to a diminishing of such rights.
THIS is why when weighing the choice between upholding the 10% requirement and the restrictive wording which would set the minimum number of women allowed at 5, the Court chose to take the 10% requirement as being the one that reflected the intention of Parliament.
And since you cannot have 5.1 women this means that a sixth woman is necessary to meet this requirement.
It is important to understand two additional things:
The first being that any additional members can only be added once the final composition of the parliament is known. This can only be confirmed after petitions and by-elections because the number of women elected might change. The numbers could go up or down which would have a direct impact on whether or not Article 44 (1A) should be activated or not in order to satisfy the 10% requirement. Therefore, as the Court has noted this could have an impact on whether or not Aliimalemanu Alofa would still be eligible to be appointed as a sixth women MP.
Unfortunately, there is one important issue that remains unsolved since it was not an issue that was raised nor is it one that the Court has the power to address. This is the problem of the fundamental flaw in the Article 44 which is that it does not take into consideration the practical implications of adding Members of Parliament in a way that avoids a situation where you could end up with a hung parliament.
The very reason why parliaments are composed of an uneven number is to avoid this problem. Unfortunately the way the law stands means that if an odd number of Women MPs are added in accordance with Article 44(1A) then we end up with a Parliament comprised of an even number which raises the risk of an even split depending on the how many parties get elected and any combination of coalitions that may arise.
If this had been taken into consideration one straightforward way that the necessary additional members could be added in a way that meets the minimum requirement without resulting in a hung parliament. This would involve the addition of an even number of women MPs.
In other words, if the minimum number of women is 6 and only 5 have been elected then rather than add 1 woman MP you would add 2 which would result in a parliament of 53 instead of 52.
Likewise, if only 4 women have been elected then 2 women would be added resulting in a parliament of 53.
However, if only 3 women have been elected then 4 women would be added bringing the total number of women to 7 and the composition of Parliament to 55 seats.
Although this would result in the number of women being brought to 7 whenever an odd number of women have been elected to Parliament it would do two things. First it would ensure that Parliament is composed of an odd number and thereby prevent a hung parliament. Secondly an additional woman MP above the minimum required would still be in accordance with the requirement of Article 44(1A) because this article stipulates a minimum that MUST be reached. So adding one extra MP to ensure that total MPs’ in Parliament remain an odd number does not violate the Article.
The correct procedure
In the meantime, I would argue that the former PM has no basis to justify staying in power until the electoral petitions are heard and by-elections are held. The Constitution is very clear about the date by which Parliament must meet.
It has never been the practice for the meeting of Parliament to wait until all petitions have been held and all by-elections held.
There are reasons for this.
First it would breach the constitutional requirement for Parliament to be called within 45 days after the elections. Secondly it would mean that there is the distinct possibility of a caretaker Government which no longer held the confidence of Parliament remaining in power not to mention the possibility that as is the case now of such a caretaker Government including Cabinet ministers who had lost their seats to continue to govern and make decisions for which they have clearly lost their mandate to. Thirdly there is the risk of a caretaker Government manipulating things to remain in power indefinitely and without any legal mandate.
It is worth mentioning that the terms for which they were elected has expired and so they have no mandate to be in such positions. Even those in Cabinet who have been re-elected need to be sworn in again for the new term of Parliament.
Arguing that they might obtain a majority after the petitions and by-elections and possible additional members are added is not a legitimate argument. First, it violates the constitution which is a serious matter. Secondly means that they are exercising powers that they no longer have the right to exercise because it is parliament that gives them such powers and to whom they are accountable to. And it is the newly elected parliament alone that can confer such powers upon them.
In addition there already exists a process for the eventuality of a Government that obtains a majority and then loses it to be replaced. This is what a vote of no confidence is for.
To date a vote of no confidence has been successfully used twice in the history of the Independent State of Samoa. The first occasion being after Vaai Kolone who had lost his seat following an electoral petition was elected and HRPP regained its 1 seat majority against the Tupua government. The second occasion was when disaffected HRPP members crossed the floor and formed a coalition with the SNDP. In both cases once the party that had gained a numerical advantage knew it had the majority it called for a vote and when the government of the day lost, a change of government took place.
Yes such changes are a source of political uncertainty and upheaval and can cause some havoc especially if they take place when the budget is tabled as that means that a change of Government could result in a change of budget priorities and the whole budget process having to be quickly restarted. It could also mean a major policy changes occurring. BUT it is important to recognize that this reflects the elected representatives exercising their powers as such is part of the democratic process. More importantly it is Parliament exercising its prerogative and duty to hold the Prime Minister and Cabinet accountable.
Doing otherwise would mean sacrificing democratic accountability for bureaucratic expediency.
In any case there are emergency provisions in the Constitution which can be activated in such situations when the National Budget has not been approved in time for the new financial year which allows core government activities to continue to operate. The funds for such activities are limited and need to be activated and approved in accordance with the constitution. These emergency powers have been used in the past due to various reasons. One reason being a change of government and another due to an unexpected delay in the obtaining of the Warrant for the Expenditure of Funds as required by the Constitution.
In other words, there is no legitimate excuse for a caretaker Government to refuse to hand over power in the expectation that they might be able to gain additional seats following election petitions and possible by-elections. To do so is to deny the elected representatives the right to exercise their mandate which is to elect a Prime Minister who has the confidence of Parliament. More importantly by clinging to power beyond the 45 days after which Parliament should have met to elect a Prime Minister, they are exercising power that they have no mandate for. In addition they could be accused of obstructing and usurping the powers of the new Government.