The former Minister of Finance, Faumuina Tiatia Liuga, has asked the Court to declare the candidacy of another former Cabinet Minister, Le Tagaloa Pita, void.
The hearing of the eligibility challenge started in the Supreme Court yesterday.
At the heart of the dispute are traditions and village customs where pāpā or paramount chiefs are not required to render monotaga (service).
Le Tagaloa is a paramount chief of Sili, Savai’i. He is contesting the Palauli le Falefa seat, currently occupied by Faumuina.
Lawyer Alalatoa Rosella Papali’i is representing Faumuina while Sarona Ponifasio is the lawyer for Le Tagaloa.
Chief Justice, His Honour Patu Tiava’asue Falefatu Sapolu and Justice Lesatele Rapi Vaai are presiding.
Sworn affidavits from the applicant and the respondent were tendered and accepted by the Court.
Alalatoa is arguing that Le Tagaloa does not meet the eligibility requirement because he has not rendered service (monotaga) as the law requires.
Le Tagaloa does not deny not rendering any monotaga to his village.
But he argues that “such monotaga is normally performed by matai of lesser importance…and he is not one of those matai (title holders).”
Alalotoa though argued that the tautua fa’aauau is not the same as monotaga and Le Tagaloa has not fulfilled a requirement to render services or tautua to the village.
Chief Justice Patu then questioned how the respondent could render a monotaga to his village pursuant to the customs of his village when by tradition and customs of Sili and Gautavai the holder of the title Le Tagaloa is not required to do so.
“If Le Tagaloa had filled this in (section in the candidate nomination form) to say he has rendered his service pursuant to the customs of his village, it would be incorrect because it is cultural for this village for the title holder of Le Tagaloa not to perform a monotaga.”
The Chief Justice also raised concerns that if people like Le Tagaloa do not meet this criteria to render monotaga, then they would never be able to run in elections.
He raised the question of whether Tama a Aiga title holders are also required to provide monotaga.
“Assuming they are required to render monotaga, they too would be effectively excluded of running as candidates,” said the Chief Justice.
“Doesn’t that run the risk of going against article 15 of the Constitution prescribed in discrimination prohibiting any legislation that subject any person to any restriction on the grounds of sex, language, religion, politics and et al?”
Alalatoa argued that is precisely what the amendment to Electoral Law does where monotaga is a key requirement which means people like Le Tagaloa cannot run.
“That is the question for Parliament to answer,” she said.
But His Honour Patu had a different view.
He pointed out that the wording of the provision states to render monotaga pursuant to customs of your village.
“It doesn’t say render monotaga full stop,” he pointed out.
“If the customs of Sili and Gautavai do not require pāpā to render monotaga it could not be pursuant to the customs of the village of Sili and Gautavai for Le Tagaloa to render monotaga, that would be in conflict with the word of politician.
“Which means the law will force the village of Sili and Gautavai to change their customs forcing Le Tagaloa to render monotaga demanding the village to do what the law says but the village will turn around and say that is not how it is this is and how things are done.”
Alalatoa said perhaps Parliament should answer such questions as it was them that came up with the Act.
She argued that despite the status of the Le Tagaloa’s title, the law requires that a candidate should render monotaga.
On another note, the lawyer stressed that tautua faaauau from Le Tagaloa is not the same as monotaga. She explained that such service, tautua faauau does not exist in Sili.
“He is obliged to reward the village for giving him the title Le Tagaloa,” said Alalatoa.
“That obligation does not amount to a tautua because if you take literal meaning of the word is you render your service but really in Samoan context given the status of his title he cannot possibly give tautua faaauau.”
She emphasized that a papa is not required to do anything (e faamaepaepa).
On discrimination, Alalatoa also argued that the right to vote and run is not a fundamental right under the Constitution.
“Article 15 has nothing to do with election and rights to vote or candidate…article 15 is limited.”
In Mrs. Ponifasio’s submission, she pointed out that it was not the intention of Parliament to exclude people like Le Tagaloa from running in the General Elections.
She said this is why the definition of monotaga is not limited to just compulsory service but to render other services such as assistance and contributions.
“He is not obligated to provide monotaga but he has a tautua faaauau,” said Mrs. Ponifasio.
The Court has reserved its decision on the matter.