Laws are living documents, Electoral Commissioner says

Electoral Commissioner Faimalomatumua Mathew Lemisio says that laws are living documents which should be viewed as open to improvements. 

On Monday, Supreme Court Justice Tafaoimalo Leilani Tuala-Warren delivered the decision that a petition calling the Electoral Act 2019 discriminatory would be withdrawn and that the Government will redraft relevant portions. 

The decision was made by consent meaning it had already been agreed upon by both parties before Justice Tafaoimalo shared it with the courtroom and closed the case. Costs remain to be decided on. 

Faimalo, who was part of the team drafting the amendments to the legislation under criticism, said he is glad for the opportunity to improve the clarity of the law, but still maintains it does not discriminate against anyone.

Applicants Tuala Iosefo Ponifasio and Papalii Panoa Tavita alleged that two key sections of the Electoral Act 2019 (section 8(2) and 156(c)) are discriminatory, unconstitutional and favour the ruling party over intending candidates. 

When it was his turn to take the stand, Faimalo told the court that the intention of the law was never to discriminate and that read with that in mind it is clear it does not. 

Speaking to the Samoa Observer on Tuesday, the Electoral Commissioner and former lawyer is standing by that opinion. 

“How do you test [the law] before it is passed? The only way you will find the true intentions of the law and the true issues relating to the law is when you put it in actual practice.

“Laws are living documents […] they evolve according to the circumstances, to the environment we are in, to the dynamics that we come through as we go along.”

He said the court case was a welcome chance to make sure anyone can understand the law and apply it as it was intended to be used.

Everyone brings their own perspectives to how they read the law, Faimalo said, and the changes will ensure there is less variety in the interpretation.

“When we saw there was a vagueness in that part we have to address it, ethically, we have to do it to ensure that the process is fair.

“It was never about winning or losing, it’s about finding out whether the rationale of these changes were intact,” he said.

As agreed to by both Tuala and Papalii’s legal counsel and the Attorney General’s office, a memorandum containing the amendments that will be made to the Electoral Act will remain confidential until those changes are tabled in Parliament.

Faimalo would not offer an opinion on whether he supported the move to keep the changes confidential but said they address everything raised in court.

He also said additional changes are coming to address how the Election will respond to COVID-19.

“In a way we are glad we went through this legally.  

“What I picked up from that process is that we needed to be clearer […] It presented us with the opportunity to further clarify through the law the intention of these amendments.”

Each amendment was initially born out of the results of a Commission of Inquiry immediately after the 2016 General Election, and the law was promptly drafted, tabled in Parliament and passed.

Faimalo maintains the law was drafted well and that his office was responsive in picking up issues the first time it could be tested in real time at the Faasaleleaga No. 2 by election in May 2019.  

“Immediately from Faasaleleaga there were issues which we addressed in March when some amendments were approved by Parliament.

“Then we had the by-election a few weeks ago (in Gagaifomauga No. 3), which also presented some issues, more operational issues [like] COVID-19.”

Among Tuala and Papalii’s contentions was the issue of how a person can render monotaga to their village in their constituency if the constituency was changed in January 2019 under the new Electoral Constituencies. 

Their issue comes from the legal language used to define a village in the law: ““village” means a village, from which a Matai title was conferred, within a constituency.”

The applicants ask how a person can render their monotaga for three years if their village is less than three years old.

While he accepts the language needs to change, Faimalo maintains the Electoral Commission believes monotaga is rendered to the village first and foremost, regardless of which constituency it happens to lie in as boundaries are subject to change.

“We now acknowledge the fact that we need to redraft that certain provision of the law and clarify that.”

Another issue taken up was whether the Electoral Commissioner should have the power to disqualify an intending nominee, something that previously lay only with the Supreme Court.

Faimalo said shifting the power to the administrative body is a purely technical choice meant to streamline a clumsy process. Until now, the Electoral Commission had no authority to tell an intending nominee they had not met the requirements for candidacy.  

“Again, it comes down to the wording and sometimes you have to apply common sense in how the administration of these things [is done].

“When you submit your nomination papers, who is going to assess and address if they are in line with the law?

“Someone has to do it.”

He said leaving that task up to the courts is not practical.

Under the current legislation nominations that are either rejected by the Electoral Commissioner can be subject to Judicial Review, whereby the court assesses the process that went into the disqualification to see if it was done fairly. 

Tuala and Papalii’s legal counsel argued in court that a Judicial Review does not address the merits of a decision and intimated it was the wrong process for the task at hand.

Faimalo said perhaps that is right.

“Maybe that is another provision we need to address, to ensure the kind of legal procedure that challenges the decision the Commissioner makes is the appropriate one.” 

An issue raised during the hearing was why the changes to the law were passed so near to the upcoming General Election, which risked some matai potentially being ineligible to run based on the confusion around the monotaga requirement.

Faimalo said if everything went according to his office’s strategic plan, there may have been no issues, but reiterated that once reforms are tabled in Parliament his office has no authority over them.

“We don’t dictate and they (Parliament) have a lot of other things to deal with so we can’t say they let us down.

“But if there is anything it has taught us, we are going to do another plan after the elections with a similar timeframe and we will try and work with the Legislative Assembly here to address all these issues before the next election.”

Despite the timing issues, he does not think the changes should have been delayed for another election. 

“If you want to test these changes there is no other time to test it, use the next general election to test it.”


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