Lawmaking should reflect consideration, not improvisation

It is a beautifully concise reflection on politics, often wrongly attributed to Germany’s first Prime Minister, Otto von Bismarck: “Laws, like sausages, cease to inspire respect in proportion as we know how they are made”. 

The man who actually coined that phrase, an American poet, John Godfrey Saxe, made an indictment on legislators that remains as universally applicable today as it was in the 18th Century. 

The more we, the public, see how laws are formulated, the less respect we are likely to have for the process. 

And last week Samoa had an eyeful of the whole thing and it was far from pretty.

Tuala Iosefo Ponifasio and Papalii Panoa Tavita brought a challenge to the Electoral Act 2019, which was heard last week.

We congratulate these two men for having the courage of their convictions to see through a challenge and to achieve (and as-yet undisclosed compromise) just in time for candidates to register for the election.

We would like to see the contents of the Memorandum of Understanding reached between the Electoral Commission, which resulted in the resolution of the court case and a promise to amend the Act.

It is difficult to imagine a matter that is more in the public interest than the rules that govern who can and cannot stand for elections and the hurdles they must meet to do so.

Releasing the closed-door deal between the parties in the case, which we are happy to believe was agreed upon in good faith, would bolster our faith in democracy and elections.

But it would also provide an answer to the biggest issue constraining lawmaking in modern Samoa: secrecy and failure of processes.

Earlier this year we saw a similar example with the introduction of proposed changes to the Land and Titles Court (L.T.C.) into Parliament.

The bills that would have made the court autonomous had reached their second reading stage of the Parliamentary process before the Government began to listen to complaints from the legal fraternity. They argued an obligation to consult with those affected by the bill had simply been disregarded.

The Government marshalled all manner of arguments that they had in fact consulted on the bills and more than met the requirements for drafting legislation in Samoa.

But the Government’s actions are more revealing than its rhetoric. If it truly believed that consultation had been adequately performed (and it would be a very curious thing for bodies such as the Samoa Law Society to invent) why is it now conducting a nationwide consultation across the country?

We’ll leave our readers to our own conclusions.

But the L.T.C. process was perhaps our first up close and personal encounter with how legislation - even the most important - is drafted in Samoa.

We observed the sausage being made and it did, indeed, affect our respect for the process of lawmaking. 

There are some 17 steps that must be followed before a bill is introduced to Parliament for debate.

A senior lawyer, Salma Hazelman, said that the majority were neglected in drafting the L.T.C. bills. 

But last week we had our second look with a legal challenge to the legitimacy of the Electoral Act of 2019.

The recent amendments to the legislation were designed to solve a simple enough problem. 

The boundaries of electoral constituencies were being divided, some added and some removed, to account for changes in population, as happens in democracies worldover.

The intention of the changes, we were told, was to not disadvantage Members of Parliament who represented these newly removed seats.

There is a requirement that M.P.s and candidates perform monotoga (service) for a period of three years before they are allowed to run for Parliament.

Maintaining that requirement for a candidate whose constituency was recently redrawn by the electoral committee would have unfairly excluded them from running from Parliament.

It would seem a simple enough problem to solve. But the saga of last week’s court case showed that in the hands of those in charge of drafting legislation in Samoa it was anything but.

When put on the stand in court we saw laid bare a range of confused and hurried explanations about the Act and plans to amend it were supported by weak evidence. 

The Electoral Commissioner, Faimalomatumua Matthew Lemisio, said a redrafting of the law and its shortcomings was already underway.

That testimony stood in stark contrast to that given by the Assistant Electoral Commissioner, Mauga Fetogi Vaai, who made no mention of any change. 

The contrasts in testimony provide an excellent example of the broader issue of legislation being produced on an ad-hoc basis and one that runs broader than the Electoral Act case. 

Faimalo rejected a criticism put to him that the idea of redrafting the Act had been performed hurriedly: “It didn’t happen last night.”

At issue in last week’s challenge was an exemption written into the law that made sitting M.P.s exempt from the monotaga requirement that is required of all other candidates.

In other words, only the incumbent, sitting M.P.s in these redrawn seats would have been technically able to contest elections. A total of 19 seats were redrawn or newly created in advance of April’s national poll. 

The effects of this law on Samoa’s political dynamics could have been immense. Not only would we have handed a huge advantage to the party of Government but it could have, per those who brought the challenge, violated the principle of discrimination under the law.

Faimalo’s testimony was an unsettling glimpse into the process of lawmaking in Samoa.

“The Commission of Inquiry [into the Electoral Act] was completed around 2017, the first draft of the bill was tabled in 2018 and we have no further authority apart from advising Parliament on how to deal with this bill,” Faimalo said. 

The Commissioner said his office did raise their concerns that the process might take too long and cut into the three year monotaga requirement they were amending. 

“We needed to have all the laws passed at least three years prior to the elections but like I said that is something that is completely out of our control,” he said.

A new law transforming the nature of Samoan elections ought not to have ever been drafted over the very plausible objections of the man responsible for overseeing them. Laws are drafted by the Attorney-General’s Office in conjunction with the Government Ministry and people whom they might affect.

It is clear that on an issue as important as the very formation of our next Parliament, such concerns were not accounted for. Which brings to mind another old saying: if it ain’t broke don’t fix it. How many new pieces of legislation in Samoa are accompanied by a public account of lawmakers' reasons for passing through Parliament?

With candidate registrations closing in October, why is it that we now have to rewrite vast sections of the Electoral Act governing the prerequisites for standing for Parliament and the proper role of the Electoral Commissioner in disqualifying candidates?

Refining laws when there is a flash point such as a constitutional challenge or public outcry is no way to legislate; it is a kind of reactive lawmaking that does not appear to anticipate problems with laws before they are passed. We deserve better. 

But the case raises another important question. 

These large attention grabbing reforms pursued by the Government, such as the Electoral Act, are being put under the microscope and the findings do not reflect well upon the lawmaking process.

But these are just the pieces of legislation that have come to public attention.

With the dynamics of Parliament being as one-sided as they are there is little hope for bills to receive the scrutiny they need in the Legislative Assembly. 

How many other pieces of legislation are similarly fundamentally flawed?

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