Electoral Act challenge hearing begins

Seven matai (chiefs) have delivered their testimony and affidavits to the Supreme Court in the beginning of a two-day hearing into the Electoral Act 2019.

Two applications, filed by lawyer Tuala Iosefo Ponifasio and commercial farmer Papalii Panoa Tavita, were presided over by Supreme Court Justice Tafaoimalo Leilani Warren.

The Office of the Attorney General was represented by Attorney General Savalenoa Mareva Betham Annandale and a team of five supporting legal staff. 

The applicants (represented by Fuimaono Sarona Ponifasio and Mauga Precious Chang) are contending that the Electoral Act 2019 is unconstitutional for excluding people from standing for candidacy in newly formed districts.

Their argument is that people cannot fulfil their three year monotaga requirement because districts have been changed or newly formed in the last three years.

They also contend that the exemption for sitting Members of Parliament for this monotaga requirement is discriminatory and unconstitutional and favours the Human Rights Protection Party. 

Finally they argue that the Electoral Commissioner’s powers to disqualify a nominee from candidacy is unconstitutional and that the only power to do that should be the Supreme Court as it was before the Electoral Amendment was passed. 

Fuimaono Sarona Ponifasio, who is representing Tuala, called only him to the stand, while Mauga Precious Chang who is representing Papalii called him and five other matai.

They were Feagaimalii Bruce Utaileua, Afemata Palusalue Lemalu, Panoa Easter Ah Kuoi, Feutagaiealelei Osovale Brown and Aiono Tuala Frost.

One by one they gave their testimony about their ability to stand for election in their constituency under the new Electoral Act, and were cross-examined by the Attorney General.

They were questioned on whether they had already registered for nomination or made enquiries over their eligibility with the Electoral Commissioner’s office, and on what grounds they suspected they would be ineligible. 

They were also questioned on the extent to which they had contributed their monotaga and what, if any, legal issues they were concerned about. 

Justice Tafaoimalo questioned witnesses extensively, including one for the Attorney General’s case, an Assistant Chief Executive Officer in the Office of the Electoral Commissioner, Mauga Fetogi Vaai.

Mauga, who spent over 90 minutes on the stand being questioned by Savalenoa and then cross examined by Fuimaono, was asked to detail the policy decisions behind the legal changes to the Electoral Act.

Having worked in her position for four years, Mauga was party to the changes that were passed into law earlier this year and were contested in court today.

She also helped provide a definition for which constituencies are considered newly formed or divided, suggesting that the Electoral Commission considers those whose villages changed in the new Act are new but not those whose names changed, but not their villages.

It is expected that Electoral Commissioner Faimalomatumua Matthew Lemisio will expand on this in the continuation of the hearing on Wednesday. 

In her cross-examination, Fuimaono asked Mauga whether the Electoral Commissioner’s office had “mixed up” its role as an administrator by giving the Electoral Commissioner the power to disqualify intended nominees for candidacy.

She said determining eligibility of a candidate is different from actually disqualifying a person as a candidate.

“My question relates to the commissioner disqualifying a person from being a candidate, even though that person has given all the proper forms requested in order to register a nomination,” Fuimaono said.

“That is the power that I am questioning. Do you agree that it is not an administrative function?”

Mauga initially answered no, saying determining eligibility and disqualifying someone is the same task. 

When pressed further, she said no and apologised to the court, saying instead she does not know the answer. 

“Am I correct to say that you don’t know because you are mixing up the administrative role with this power to disqualify, that your policy and the changes you made are mixing up these two functions?” 

Mauga said part of the justification was that the powers had been there in the previous version of the Electoral Act from 1963, but were missed out when the Act was amended before the last election in 2016.

But she argued the full extent of the power to disqualify someone from candidacy does still lie with the Supreme Court if a nominee wishes to seek a Judicial Review on the Electoral Commissioner’s decision to disqualify them.

Fuimaono said judicial review only analyses the process of a decision’s flaws and not its merits 

The hearing continues tomorrow with Electoral Commissioner Faimalomatumua Matthew Lemisio taking the stand. 

He will be expected to answer the questions his colleague could not as well as present exactly which constituencies are now newly formed or divided under the latest Electoral Act.  



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