“Who Has the Legal Authority to Appoint an Additional Member of the Legislative Assembly?”

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The legal challenge brought by the Faatuatua i Le Atua Samoa ua Tasi (FAST) against the Office of the Electoral Commissioner’s decision to declare an additional member of the Legislative Assembly will be heard next Wednesday, after an OEC strike-out motion was dismissed by the Supreme Court this afternoon.

The decision was handed down by the three-panel bench of Justice Mata Keli Tuatagaloa, Justice Vui Clarence Nelson and Justice Lesatele Rapi Vaai after extensive deliberations over the legal interpretation of Article 44(1A) of the Constitution of Samoa.

Panel of three senior Justices of the Supreme Court of Samoa.

The Office of the Electoral Commissioner declared Aliimalemanu Alofa Tuuau of Alataua i Sisifo an additional Member of Parliament last Tuesday 20th April, declaring the activation of Article 44(1A) stating, “the constitution requires a minimum of 10% of parliament’s seats shall be occupied by women members”.

FAST immediately challenged the decision as unconstitutional, applying to the Court to have the warrant issued by the Head of State declared unlawful and void.

HRPP’s Aliimalemanu Alofa Tuuau is represented by Aumua Tuatagaloa Ming Leung Wai.

Presenting the OEC strike-out motion in Court today, Assistant Attorney General Fuimaono Sefo Ainuu faced Samoa’s most senior judges with one of the issues raised being the question of, who has the legal authority to appoint an additional member of the Legislative Assembly under Article 44 (1A) of the Constitution.

For over an hour and a half, the Head of the AGO’s Civil division fielded questions about the legal authority of the Head of State as well as the Electoral Commissioner to declare an additional Member of Parliament under the Constitution; as well as the timeframe in which an appointment under Article 44 (1A) can be made.

“We want to know where in the Law it says an additional member is appointed by the Head of State?,” asked Justice Vui. “Who has the legal authority to make this appointment valid?”

“Who makes the appointment?.. the Head of State or Electoral Commissioner? That is critical, because you can’t have it both ways”.

Supreme Court Justice Vui said the reality of this case is that a decision of the Head of State cannot be quashed by the Courts, however, he added that the Head of State must act according to the Constitution, and not on an elected official’s advice.

Justice Lesatele Rapi Vaai added, “We are not arguing about an appointment under the (Electoral) Act, but we are arguing about the Constitutional appointment made by the Head of State, based on the advice made by the OEC..”

Fuimaono responded to all the questions posed, stating that the appointment of the additional Member of Parliament is legal under Article 44(1A) and the Electoral Commissioner was within his powers to independently advise the Head of State accordingly.

Another issue questioned by Justice Tuatagaloa, was the position put forward by the OEC, that the applicants do not have the right to bring forth such a challenge in the first place.

Justice Tuatagaloa asked glaringly, “You mean applicants do not have rights to apply?”..

“Yes..”

“Mr Ainuu, you are putting words into the Constitution..” added Vui.

The Court returned after 20 minutes with the decision to dismiss the strike out motion by OEC, but ruled favourably on an application by FAST lawyers, to have the winning candidate of Alataua i Sisifo, Seuula Ioane, included as a joint applicant with FAST.

Winner of Alataua Sisifo is now a joint applicant to proceedings.

A full hearing has been set for 10am next Wednesday 5th May 2021. FAST and Seuula Ioane are now joint applicants, while the Electoral Commissioner and Aliimalemanu Alofa Tuuau are first and second respondents.

The decision by the Electoral Commissioner to take the number of seats to 52 leaves the results of Samoa’s recent General election in a stalemate, with HRPP and FAST each holding 26 seats.

Article 44 of Samoa’s Constitution Published Below: 

Members of the Legislative Assembly 

44Members 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
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).

(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 additional Member.
(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 prescribed number.
(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).


Marieta H Ilalio