Electoral law challenge, changes and the wisdom of our forebears contained in the Constitution

With the nation’s gaze now firmly fixed on the General Elections nine months away, a story titled “Electoral Act unconstitutional, Tuala claims” published on the front page of the Samoa Observer on Friday, certainly got heads turning.

The idea that the Electoral Act, the law upon which the entire process for Samoa’s democratic Parliamentary election is based, could be deemed “unconstitutional,” is not only alarming it is also extremely interesting. And should the Court find this to be the case, the ultimate question is where would this place the General Election, given the impact of the changes being challenged?

That said, it would be premature of us to offer an opinion given the fact the matter is heading to the Court where it will be argued by some of this country’s most brilliant legal minds. There is no doubt that the Government, including the Office of the Electoral Commissioner and the Office of the Attorney General, will not respond lightly. This is a monumental challenge against the legitimacy of the country’s electoral processes, and it could possibly set a benchmark as far as election challenges go.

But then the matter is not being brought by any other “Tom, Dick and Harry.” The man who is making this claim, Tuala Iosefo Ponifasio, has not only been an election candidate for several years, he is a lawyer in his own right. He is also represented by his wife, Fuimaono Sarona Ponifasio, whom on her own is a well-respected member of the legal fraternity in Samoa. Which means they would’ve already given this matter considerable thought before they filed a motion to challenge the three-year monotaga requirement, claiming that it contradicts the newly formed constituencies for the next election, therefore making the Electoral Act unconstitutional.

Indeed, Tuala claims that the Electoral Act 2019 disqualifies people from standing, if their constituency was divided or newly formed in the last three years. Using himself as an example, Tuala, who intends to stand for Gagaemauga No. 1, which has absorbed new villages from the dissolved Gagaemauaga No.3 constituency, claims he does not fulfill the three-year requirement in serving his monotaga to these new villages. He argues that the new constituency law means the only people eligible to stand for the newly outlined districts are current Members of Parliament.

According to Tuala, the only remedy is to expand the exemption to anyone, not only to current Members of Parliament. It is why the motion claims that the sections being disputed are unconstitutional and should therefore be declared void, as they contradict Article 15 of the Constitution, on freedom from discriminatory legislation.

Tuala has some legitimate points. It would be interesting how the Government would counter the claims when it responds on Monday.

What is obvious is that the changes which Tuala is challenging have been well debated and covered on the pages of the Samoa Observer during the past years and months. At best, they are controversial; at worst they are disturbing since they destroy harmony and go against Samoa’s traditional boundaries and sacred norms, including the monotaga.

Whichever way the Court will rule in this matter, the decision will be observed and followed closely due to its potential implications on next year’s General Election and the years to come.

Keep in mind that there have been so many changes to the Electoral laws during the past years, we can’t really blame members of the public for being confused. Come to think of it, we’ve lost count of the number of changes they have made.

Consider another story titled “Eligibility requirement a challenge in urban area” published on page 2 of the same edition of the Samoa Observer. This time, the issue in question is the ability of a person residing in a village in an urban area, but renders monotaga to their village of origin, to run for office to represent the village where he/she resides. The law as it stands means this person can only run for office to represent the village of origin, not residential, which raises questions about fairness of a person’s right to freedom of discrimination when it comes to representation.

The concoction of the Vaitele residential area is a prime example of how this law doesn’t work, given the fact that the majority of people living in Vaitele-uta and Vaitele-fou are people from Savai’i, Manono, Apolima and the rural areas of Upolu who moved there for work, education and greener pastures.

“That doesn’t mean those people are being prevented from running for elections,” said the Electoral Commissioner, Faimalomatumua Mathew Lemisio. “They are still eligible to run from the constituencies where they are matai and rendering their monotaga’s to.”

Now isn’t that another contradiction? Think of the term “geographic anomalies” and what the Government has done to try and address it.

Correct us if we are wrong but the way we see it is quite simple. So they butcher the division of the electoral constituencies and boundaries for voters, and when it comes to candidates and their right to represent their place of residency, they come up with a different law? Again, can you blame people for being confused? Who is dreaming up these changes? Do they even understand the implications of the decisions they are making?

Let’s try and be logical about this. Since 1962, Samoa’s electoral process has been a work in progress. Looking at what is happening today, it continues to be. Changes have been made where they are needed and we should always keep an open mind about different circumstances that arise from time to time. This is what being progressive is all about.

But changes must not be made for the sake of changes. And where they are necessary, we must never lose focus of our point of reference, who we are as a people, and as a nation. All these changes would have been okay if this was New Zealand, Australia or any other country without fa’alupega. But this is Samoa and this being the case, o Samoa o le atunu’u ua uma ona tofi. 

There was, and still so much wisdom in the Constitution our forebears had provided as a guide for us into the future. Let’s draw from it, and not completely trample on their dreams, hopes and aspirations – especially when it comes to electing leaders.

Have a lovely Sunday Samoa, God bless!

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