Electoral Act challenger satisfied with result

The man who brought his case against the Electoral Act 2019, Tuala Iosefo Ponifasio, said he is content with how the matter was brought to a close this week.

On Monday, Supreme Court Justice Tafaoimalo Leilani Tuala-Warren announced that Tuala and Papalii Panoa Tavita will withdraw their applications, and that the Government will redraft relevant portions of the Act.

The Government has around a month to make the changes, which are outlined in a confidential document, before the nomination period for the election begins on October 12. 

Speaking to the Samoa Observer on Tuesday, Tuala said he is pleased the court proceedings “triggered” the redrafting. 

“I am satisfied with the outcome and glad the inconsistencies of laws can be rectified when Parliament sits again,” he said.

“It is unfortunate that it had to come to court in order for us to point out these inconsistencies. It is now up to Parliament to make the necessary amendments and pass these changes into law.”

In their applications, Tuala and Papalii 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.

The Government initially opted to try and have the petition dismissed by the courts but the day before their motion was scheduled to be heard, the Attorney General filed a new notice of opposition and a hearing was scheduled.

That hearing lasted around days and concluded on Monday afternoon with both parties agreeing for the applications to be withdrawn and the Act redrafted with amendments contained in a confidential memorandum, to be made public when tabled in Parliament.

During the hearing, Electoral Commissioner Faimalomatumua Mathew Lemisio admitted the Act was already being redrafted to ensure the legal language more accurately reflected the intentions behind the law, which he argues were not discriminatory.

His admission prompted Justice Tafaoimalo to pause on the hearing and move the discussions behind closed doors, resulting in submissions from both parties never being aired in court.

Tuala said he believes it was the court case that prompted the Commissioner to consider redrafting the law. 

In an interview with the Samoa Observer, Faimalo said the law needs to be tested and for lawmakers to be able to respond to how the law is understood and practiced in context.

He said he welcomed the opportunity to amend parts that were not being understood to mean what he intended for them to mean.

But Tuala disagrees.

“Problematic legislation is usually a result of not having solid and well informed policies in place and as the evidence suggests during the hearing this is what we think caused the problem.

“Implementation of the law will have its own issues but a better understanding of policies and their development will lead to a better understanding and smooth implementation of the laws.”

Faimalo maintains his office had a clear rationale for the provision of the Electoral Act that gave certain sitting Members of Parliament an exemption from fulfilling three years of monotaga (service) in order to stand for election.

He said the office intended for the exemption to protect only the representatives of the soon to be dissolved Urban Seats, not a blanket exemption which has resulted in the provision being called discriminatory.

But during the hearing, when asked to, Faimalo was unable to provide documented policy papers that describe this intention.

“Good policies will set out the reasons things are to be done in a certain way and why,” Tuala said.

“This was a difficult part of the case when we put the question of policy to the respondents and for them to provide documentation to show what went into these policy considerations.”

But having seen the contents of the memorandum containing the relevant amendments to the Electoral Act, Tuala said he believes they are fair.

“The court played a very important role in exploring the issues advanced by the lawyers during the hearing,” he said.

“The case went into discussions of amending the law therefore my lawyer did not get the chance to make her submissions to the court to fully flesh out our arguments on the inconsistencies of the Electoral legislation with the constitution. However, our position was clear during the evidence.”


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