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Govt. files strike out motion in Electoral law challenge

The Government has filed a motion to strike out a Constitutional challenge against the Electoral Act 2019, calling it “frivolous, vexatious and an abuse of Court processes.”

The motion was filed by the Office of the Attorney General in the Supreme Court on Monday.

It was in response to Tuala Iosefo Ponifasio, who filed a major challenge against the Electoral Act 2019, calling it unconstitutional and discriminatory in its rules about Parliament candidate’s qualifications and the exemptions to monotaga criteria.

In response, the A.G.s office, represented by lawyer, Tafailagi Peniamina, said the motion has “no prospects of success” and wants the matter put to bed in its entirety.

Meanwhile, a second matai, Papali'i Panoa Tavita, has filed a motion making the same claim as Tuala.

Papali'i's lawyer, Mauga Precious Chang, expects the A.G. to respond similarly.

Presiding is Chief Justice, his Honour Satiu Simativa Perese. He agreed to address both matters at once in a hearing on the strike out motion set for 19 August 2020. 

Papali'i, who was previously the General Manager of the Samoa National Provident Fund, is a prominent farmer and exporter. In 2016, he unsuccessfully ran for the seat of Faleata West. 

He is also a member of a committee which oversaw the Electoral Amendment Bill 2020, which passed earlier this year.

Tuala, who is represented by lawyer, Fuimaono Sarona Ponifasio, claims the Electoral Act 2019 disqualifies matai from standing for their constituency if it was changed by the recently passed Electoral Constituencies Act 2019. 

Constituencies which are “newly formed or divided” include constituencies which absorbed the villages formerly in the Urban West and Urban East seats, and in the now dissolved Gagaemauga No.3. 

Tuala claims that because the constituency was altered in the last three years, no one but the current Member of Parliament will be able to fulfil their requirement to serve three years of monotaga to their village in the constituency they intend to run in. His motion asks the Courts to rule on his interpretation of the Act. 

Current Members of Parliament however are exempt from fulfilling three years of monotaga in a newly formed or divided constituency under a transitional clause in the Electoral Act 2019, which Tuala is challenging in court for being discriminatory and therefore unconstitutional. 

In his motion, Tuala also claims that the Electoral Commissioner’s powers to disqualify an applicant for electoral candidacy are unconstitutional, as the Commissioner has been granted powers to interpret the law over the courts under the new Act.

But the Attorney General disagrees. In the strike out motion, submitted before Chief Justice Satiu on Monday, the office claims that the Electoral Act is not inconsistent with the Constitution as Tuala claims, nor does the Constitution apply to parliamentary electoral qualifications.

Referring to a 2001 case between the A.G. and Manoo Lutena Mulitalo and co-appellants, the A.G. argues that the precedent on this topic is clear: that discriminatory factors in the Constitution (Article 15) “do not include anything to do with voting or elections.”

The Government believes Tuala’s motion is an abuse of court processes because it “circumvent[s] the clear authority of the Constitution and the Electoral Act to determine the question of a qualification of a Member,” and thus believes it has “no prospects of success.”

Further the motion claims that because Tuala has not actually been disqualified to run in his district, Gagaemauga No.1, nor has he lodged an appeal over his alleged disqualification under the new Act, the Electoral Commissioner has therefore not made a decision on whether to disqualify Tuala from running. 

“The law does not give the Applicant (Tuala) the privilege to determine for himself whether he is qualified for disqualified to be a Member,” the motion states.

“Whether or not he is qualified is a question to be determined within the scheme of the Constitution and Electoral Act 2019 which the Applicant has not engaged.

“The Applicants position regarding his qualification is argumentative at best.”

The motion states Tuala’s claims over the unconstitutionality of the Electoral Commissioner’s powers are also unfounded, saying those powers are granted within the Constitution, under Article 45 which allows Acts of Parliament (like the Electoral Act) to provide disqualification criteria.

If a person seeking nomination is found to be ineligible by the Electoral Commissioner and wants to contest the decision, they can challenge it in the Supreme Court, a right which is protected by the Electoral Act, the A.G. states. 

Chief Justice Satiu has allocated half a day on the morning of 19 August to hear the opposing views on the matter. 

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