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Legal challenge a victory of principle

The country was brought to a sudden stop last Friday when it was announced that the Government’s freshly-passed electoral amendments would be subject to legal challenge again.

Lawyers for applicants were able to bring the passage of amendments by Parliament on Tuesday into immediate question. 

They claimed that the Government had not held true to its side of an agreement to remove allegedly “discriminatory” provisions from the Act. 

The applicants had the Government in court again just days later, contending they had not been removed as per an agreement.

On yesterday’s front page we saw a potential challenge to the law governing the nomination of candidates, mounted only weeks before registrations to stand for parliament opened were withdrawn (“Electoral Act challenge withdrawn”). 

Papali’i, speaking through his counsel, said that he had remaining concerns about sections of the Act, but that would not pursue them himself now. 

How close, though, the Parliament and the electoral system came to being brought to its knees by ordinary Samoan citizens on the cusp of a fresh term of Parliament.

It is to their credit that they did not prolong the sense of chaos looming over this country coming, as it is, so close to the opening of nominations. 

But Monday’s withdrawal was also a splendid reminder of the power of the judicial branch in Samoa.

As Tuala said himself outside the courtroom that power has only been increased by the challenge itself which questioned a provision that would allow the Electoral Commissioner alone to determine which candidates were and were not allowed to run.

“That has been removed and the power has been returned to the Court to decide as stipulated in our Constitution,” he said.

But we also find ourselves in agreement with his co-applicant, Papali’i.

“The truth is the Government lost although we withdrew our motion,” he said. 

“Our claim was right that the law was discriminatory and the question to challenge the power of the Commissioner.”

The applicants' victory was not in law but in principle; the principle of the power of one man to stand up to Government. 

They saw the Parliament pass what they viewed as a poorly drafted and discriminatory law. And one that changed the terms on which people could stand for Parliament so close to a forthcoming election. 

Even the Electoral Commissioner, Faimalomatumua Matthew Lemisio, testified that tinkering with electoral law in such a short time frame was not his preferred legislative option. 

“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 testified. 

But it took just two ordinary citizens to challenge the Government and call it out on what it viewed as the discriminatory application of the law.

And that is the beauty of Samoa’s constitution and the powers that its framers vested in its judicial system.

The courts are the ultimate check on a Parliament that passes bad laws or an executive branch that usurps power that reaches beyond its limits.

This year has, to understate matters, been an eventful one.

The integrity of several public institutions has been tested. Some have been found wanting.

But the judiciary’s honour has remained untarnished.

For the past six months this country, one of fewer than a dozen in the world to have no case of the coronavirus, has been living under a state of emergency.

What that constitutes has been changed more than a dozen times.

But these changes have all been facilitated by one “relaxation” of the rules under which the Cabinet must operate to ensure “effective” decision making about matters of health in a time of a crisis. 

We have seen with this example of how one simple change of procedure can lead to the proliferation of power.

The Court's authority comes from the supreme document governing this nation, the constitution.

It is that document that empowers ordinary people to challenge the policies of the Government. 

And it is that power which we are currently holding onto only by our fingertips.

The arguments for and against the Land and Titles Court (L.T.C.) legislation are well-rehearsed.

But one aspect of those laws, in particular, threatens to undermine the power the Samoan constitution endows its citizens, as we saw on display on Monday.

The change would endow the Government-appointed Judiciary Service Commission the ability to remove Supreme Court Judges. 

This country’s Judges have shown unity and courage in the face of the potential reshaping of the judiciary this year. 

There is no reason to imply that instability of tenure would lessen their willingness to make decisions that frustrate the Government, as the Electoral Act challenge proceedings did.

They could, however, be removed without their choice.

And more to the point, this would represent a change to the elegant document that has dictated how Samoa has been run since 1962.

It would be difficult to summarise the effect of this more eloquently than retired Supreme Court Justice Lautalatoa Pierre Slicer, who said:

“There can be no greater honour than to be called a Samoan citizen. 

“It was to them, the Matai and citizens of Samoa for whom those marvelous founders drafted and gave the nation state of Samoa a Constitution. 

“Independence of the Judiciary is one of those gifts given by the Constitution. I would suggest that politicians, especially, read the name of those Matai embedded in the Constitution as Donors of the Constitution. 

“That Constitutional gift included representation of the people, security of fundamental rights, impartial administration of justice, fundamental rights and the impartial administration of justice.”

It may be under challenge. But we say long may it reign. 

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