Commissioner testifies in Electoral law challenge

The Office of the Electoral Commissioner will redraft the Electoral Act 2019 that mistakenly exempts all sitting Members of Parliament from a central qualification for candidacy in the next election.

This is what the Electoral Commissioner, Faimalomatumua Matthew Lemisio, told the Supreme Court on Wednesday.

He was speaking on the second day of a hearing into a Constitutional challenge against the Electoral Act, brought by two applicants, Tuala Iosefo Ponifasio and Papali'i Panoa Tavita, who claim the act is discriminatory in several parts.

Supreme Court Justice Tafaoimalo Leilani Tuala-Warren presided.

One allegedly discriminatory part, the applicants claim, is section 156 in the Act which exempts sitting Members of Parliament from rendering monotaga to the village they are running from for three years before the next election if their constituency was “divided or newly formed.”

Tuala, who is represented in court by lawyer, Fuimaono Sarona Ponifasio, believes the law favours current M.P.s, majority of whom are Human Rights Protection Party (H.R.P.P.) members and that this is discriminatory and therefore unconstitutional. 

In his evidence, Faimalo did not deny that the law as it currently reads gives the exemption to all sitting members.

But he said the intention of the law was to protect only those who currently represent the soon to be dissolved Urban Seats, the villages of which have been redistributed into either newly formed or previously existing constituencies for the next election.

Because they were in Urban Seats they could not practically serve traditional monotaga for the last three years, as they had been permitted to instead serve religious monotaga, and should not be disadvantaged for it if they wish to run again, Faimalo said. 

The intention was to give exemptions for just Papali'i Niko Lee Hang and Faumuina Wayne Fong who happen to be the current members representing the Urban West and Urban East seats, but the legal language does not clearly reflect this. 

The proposed redraft would include the words “urban seats” to describe the kind of sitting M.P. which is exempt from the monotaga requirement, Faimalo confirmed.

“In 2021, these constituencies will be no more and what we are proposing now through an amendment is a redraft of this provision […] to reflect clearer the intention that was behind it,” he said.

He argued that if the current law is read with the intention his office had in writing it, the matter is clear, but that “the way it has come out it does not reflect that rationale.

“The more conversation and discussions of this particular provision of the Electoral Act, the more clearer it becomes that the intention of the policy behind this provision has not been well reflected in the provision as it is now in the Act," the Electoral Commissioner said.

“These laws are all new laws. The more we start implementing them and talking about them the more we see the issues.”

When the Urban Seats were created, the definition of monotaga was expanded to include religious service, but that has now been removed along with the Urban Seats. Faimalo said the redrafting should be complete and approved before the end of the nomination period for candidates so that the law is entirely clear on who is eligible for candidacy and what their requirements are.

He is working with the Attorney General’s office on the process. 

Justice Tafaoimalo joked that this redraft could possibly save her from having to write a decision. 

“We might talk about this later, it might stop me from having to write a decision,” she said, which was met with some laughter from the courtroom.

When it came time for Fuimaono to cross-examine the Electoral Commissioner, she reminded the Court that Faimalo was sitting in the courtroom on Tuesday when she unsuccessfully attempted to extract the reason for this widespread exemption from his Assistant Commissioner, Mauga Fetogi Vaai. 

This meant Faimalo would know all the questions Fuimaono would have for him on this provision and be prepared to answer them. 

She asked him whether or not Faimalo has a policy paper that outlines the intention of the change he had described to the Court, and he said he does not have one in the courtroom, but that discussions had happened over the intention behind the change.

“We had the rationale all along. When these cases were filed we had those discussions then,” he said.

Fuimaono said that on Tuesday when Assistant Commissioner Mauga was on the stand, she never raised the Urban Seats as the sole intended exemptions from the monotaga requirement. 

“Is it correct that this is something you just came up with last night, given that you listened to all the proceedings yesterday?” she asked.

“Is this something you just made up?”

“Absolutely no,” Faimalo responded. “It didn’t happen last night.”

“Why has it taken you this long to table your amendment to the Electoral Act? Why is it taking you this long to draft your redraft of section 156?” she asked.

Fuimaono suggested that now that the Courts have become involved the office should wait until the case is complete before releasing any redrafts of the Act. 

During her cross examination, Mauga Precious Chang, legal counsel for Papali'i Panoa Tavita pressed further on the exemption policy’s history. 

Faimalo said that while there was no policy document to present, there exists correspondence with the Attorney General’s office over the change and verbal discussions have also taken place.

He also confirmed, when asked, that he was made aware of the two applications against the Act in June and knew his office would be asked to defend the exemption in court. 

“Your affidavit that was just given to us this morning disclosed something new about the policy behind this provision […] it’s new for us for the purpose of this proceeding, it’s the first time it has been brought up,” Mauga said.

“It’s not in any of your assistant C.E.O. Ms. Vaai’s affidavits […], in actual fact, Ms. Vaai came yesterday and explained a different policy reason from what you just said.

“So it seems your office is also confused about the policy, with two senior officers giving two policy reasons [for the exemption].”

Faimalo said that was unfair, and explained that Mauga (Vaai) was referring to the way sitting members are “locked” into their constituency and cannot render monotaga to another constituency should they want to stand for another in the next election. 

Instead, he reiterated that as new laws and policies have time to be implemented fully, issues arise and can be discussed and dealt with as necessary. 

“Does that mean it was not clear at the time Ms. Vaai was doing her affidavit for the purpose of defending this provision in court?” Mauga asked. 

“There is no actual, settled policy is there?”

“There is a draft bill that has been floated and discussed way before this case started,” Faimalo said. 

Mauga Fetogi Vaai was called to the stand a second time to explain why she did not raise the policy decisions over the Urban Seats, nor raise the redrafting of the Act currently underway.

She explained that was explaining the more general intention of the exemption, which was to prevent disadvantage for sitting members who could not render monotaga in any constituency but the one they were elected to represent. 

But, she added, she was aware of the discussions over limiting the exemption to only the Urban West and Urban East representatives, and aware of the plans to redraft the Act, despite her not raising the matter in court on Tuesday. 

Fuimaono said she is changing her evidence in light of what the Electoral Commissioner said, but Mauga said she did not raise the Urban Seats because she was speaking more generally to the intentions of the exemption in the Act. 

To illustrate why the exemption as it currently reads is discriminatory, Mauga asked Faimalo to confirm whether the three constituencies currently represented by non-H.R.P.P. members are newly formed or divided, leading to the current representatives being exempt from the monotaga requirement as it currently reads.

Breaking it down, she contended that when the Act changing the Electoral Constituencies was passed in January 2019, Olo Fiti Vaai (Salega East), Aeau Peniamina Leavaiseeta (Falealupo) and Ili Setefano Tafili (Aana Alofi Number 2) represented constituencies unaffected by the Act (though some are renamed by it).  

He confirmed that they are not affected, but denied that the amendment to the Act was designed to privilege the ruling party, saying the amendments grew from the results of a routine Commission of Inquiry following the last election. 

“It was never designed to benefit any H.R.P.P. members, it was for the overall benefit of the electoral process,” Faimalo said. 

Mauga, adding that she is not accusing the Electoral Commissioner of intentionally doing so, said the practical effects of the exemption does in fact privilege H.R.P.P. over the three non-H.R.P.P. members who were in Parliament when the new Act was passed. 

She pointed out that until May 2020 when a new Electoral Amendment was passed there existed two ways for the sitting members to be advantaged over intending members: the new exemption in section 156 and the allowance for religious monotaga to be served instead of traditional monotaga. 

Faimalo said that leaving the word ‘religious’ in the definition of monotaga was left in the act as an “oversight.

“I wouldn’t say it was a mistake, we overlooked it until we started implementing it […] an oversight, yes.”

Finally, Faimalo confirmed for the court exactly how many constituencies meet the description of divided or newly formed. 

He said of the 21 constituencies affected by the Electoral Act 2019, 15 are divided, four are newly formed and two had only their name changed and therefore are neither newly formed nor divided.

The hearing continues with submissions on the case on Thursday.  

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