Electoral law challenge hearing adjourned

Supreme Court Justice Tafaoimalo Leilani Tuala-Warren has adjourned the hearing of a legal challenge against the Electoral Act 2019 until Friday morning.

After a discussion in chambers on Thursday morning, the matter was adjourned to allow the lawyers in the case to spend Thursday discussing the matter, before deciding how to proceed on Friday.  

The matter, a constitutional challenge against parts of the Electoral Act, is between private citizens and the Government, which is being represented by Attorney General Savalenoa Mareva Betham-Annandale. 

Justice Tafaoimalo made her decision following a surprise admission in court by the Electoral Commissioner, Faimalomatumua Matthew Lemisio, who said that his office is looking to redraft a section of the Electoral Act which the applicants argue is discriminatory. 

Faimalo’s testimony was delivered on Wednesday, the second day of the hearing. The day prior, the Assistant Electoral Commissioner, Mauga Fetogi Vaai, made no mention of the change while giving evidence. 

The applicants, Tuala Iosefo Ponifasio and Papalii Panoa Tavita, contend the Electoral Act is discriminatory and breaches the constitution. 

They are represented by Fuimaono Sarona Ponifasio and Mauga Precious Chang. 

So far five additional witnesses have been called on to speak to Tuala and Papalii’s contention: Feagaimalii Bruce Utaileua, Afemata Palusalue Lemalu, Panoa Easter Ah Kuoi, Feutagaiealelei Osovale Brown and Aiono Tuala Frost.

Just Faimalo and Mauga have been called to speak to the Attorney General’s case. 

On Thursday morning, the court had been scheduled to hear the parties’ submissions. Lawyers were instead called to a meeting with Justice Tafaoimalo in chambers, where she apparently told the parties to take the remainder of Thursday to continue closed-door discussions. 

The central issue in the case is that Tuala and Papalii believe the Electoral Act 2019 and a further amendment passed in March 2020 disqualify candidates from fulfilling their monotaga (contribution) requirement in their constituency.

That is because the law created newly formed constituencies or divided existing ones in 2019. Two urban seats were removed. 

The critics of the law contend that makes it impossible for matai in a constituency less than three years old, to legally comply with a three-year monotaga requirement. 

There is an exemption in the law for sitting Members of Parliament, that allows them to run without fulfilling the monotaga requirement. Tuala and Papalii believe this is discriminatory and favours Human Rights Protection Party members currently in Parliament.

It is this exemption that, on Wednesday, Faimalo suggested was not interpreted in the law as intended and said that his office intends to redraft it before the nomination for next year’s general election closes in October. 

Finally, the case argues that the Electoral Commissioner should not have been given the powers to disqualify an intended election nominee if they believe they do not meet the requirements for candidacy.

Before 2019 this power lay solely with the Supreme Court and the applicants believe it should remain that way. 

Justice Tafaoimalo will reconvene the hearing on Friday morning and decide whether to continue with submissions or not based on the outcome of Thursday’s closed-door discussions. 

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