Speaker's decision under Court's microscope
The decision by the Speaker of Parliament, Leaupepe Tole'afoa Fa'afisi, to declare the seats of Salega East and Urban West vacant, has come under the microscope in the Supreme Court.
A panel made up of the Acting Chief Justice, Her Honour Niava Mata Tuatagaloa, Justice Leiataualesa Daryl Clarke and Justice Tologata Leilani Tuala-Warren, have been asked to determine whether the decision was legal.
This followed a lawsuit filed by two former Members of Parliament Olo Fiti Vaai and Faumuina Wayne Fong, seeking a declaratory order over the matter. The hearing started on Tuesday. Lawyers Mauga Precious Chang and Muriel Lui are representing Olo and Faumuina. Luamanuvao Katalaina Sapolu and Leota Tima Leavai appeared for the Speaker of the House.
Olo and Faumuina claim that the decision by the Speaker of the House was defective and unlawful. They say their decision to register for Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party is for the upcoming General Election, and it should not have affected their current roles.
During the proceedings, the Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei, said the seats were declared vacant by the Speaker after Olo and Faumuina registered for F.A.S.T.
He said that 28 October 2020, the Speaker wrote to the members informing them that their seats had been declared vacant. Tiatia told the Court that the members had not complied with the Electoral Act, and Parliament's Standing Orders, when they registered with another political party.
The Clerk said the the former M.P.s were served with the charges when their seats were declared vacant. The Speaker also announced in Parliament on 17 November 2020 that the seats had been declared void.
But Olo and Faumuina objected to the decision through a letter they wrote to the Speaker.
Justice Tuala-Warren queried what happened to the letter from the members opposing the decision from the Speaker.
In response Tiatia said it was referred to the Speaker.
The Acting Chief Justice Tuatagaloa asked whether a motion of suspension for the members was carried out in Parliament when it reconvened on 17 November 2020.
“Did the Speaker make an announcement to say the members are suspended to await a decision of the Court now that they have opposed the decision of the Speaker?” she asked.
Tiatia replied no, saying the announcement from the Speaker was to state that the seats are vacant.
Justice Clarke also queried the Clerk in relation to the Electoral Act section 142 and 143 where Olo and Faumuina were charged with vacating their seats. Under section 143 of Proof of vacation, it states that the Speaker or the Deputy Speaker shall declare the vacation of a member’s seat if a) a Member admits to a charge under section 142 or b) a Member is ruled by the Supreme Court to have vacated his or her seat.
Justice Clarke questioned what had happened after the members objected to the charges from the Speaker and if there was a resolution to suspend them. In response, Tiatia said the Speaker had informed the House on 17 November 2020 that the members had breached the Electoral Act and Standing Orders resulting in their seats being vacated.
The Electoral Commissioner, Faimalomatumua Mathew Lemisio, was also called to give evidence and he testified that the nomination of candidates process is intended for 2021 General Election.
Ms. Lui asked the Commissioner if all the declarations form for nominations and declaration of their political party was for April’s election.
Faimalo said yes.
Luamanuvao then queried Faimalo if a person who is not a member of a certain party, can register his nomination under that political certain party, for the election.
"That is correct your Honour," replied Faimalo.
When Faumuina Wayne took the stand, he asked about his support for F.A.S.T. and being seen with the Leader of F.A.S.T., La’auli Leuatea Schmidt, during the political party's events. Faumuina said since he was sacked by the Human Rights Protection Party, he had hoped that there would be a party to oppose the ruling party.
Luamanuvao then questioned him if he had met with the Samoa Observer newspaper after he registered his nomination with F.A.S.T. He replied that most of the time, the newspaper do reports without meeting with him but he does not recall a meeting with the newspaper on that day.
The lawyer then tendered an article from the newspaper where Faumuina, Olo and La’auli were pictured wearing F.A.S.T. uniform and raising their hands. Faumuina said the photo was retrieved by the newspaper from somewhere and was used for the article.
“But we were happy that the F.A.S.T. was officially registered, another party to compete and oppose the H.R.P.P.,” he said.
Luamanuvao then put it to Faumuina if he accepts that he is a member of F.A.S.T., as announced by La’auli that he was the Minister of Finance during the political party’s launch event.
In response, Faumuina said he thanked La’auli for the praises but he is not the Minister of Finance. He said his seat can only be secured after the upcoming General Election and he does not know if he will return or not.
The lawyer then put it to the former M.P. that his representation of F.A.S.T. was deceiving voters. But Faumuina said he does not accept the question and that there is a lot of deception around.
The F.A.S.T. candidate told the Court that he contested as an independent candidate in 2016 and was later asked to join the H.R.P.P.
It is also his evidence that he was only made aware of his sacking from the H.R.P.P. party in an interview by the Prime Minister.
From then on in August, Faumuina said he has remained as an independent member.
When asked if he was given any notice of suspension relating to the vacation of his seat he replied no. He said a letter they received was to notify them that the Speaker has declared their seat vacant.
“My understanding is that I am still an independent member,” he said. “There is no form from the Electoral Commissioner to say that I have changed my party. The change is effective in the upcoming election…”
Olo also testified telling the Court that he is not a financial member of the F.A.S.T. political party.
The Salega candidate said he does not deny that he supports F.A.S.T but said the majority of the activities are preparations for the upcoming General Election. The member said it is his understanding that his seat would not be affected because his registration under F.A.S.T. is for next year.
Olo was then queried by Luamanuvao if he felt it was appropriate for him to wear the F.A.S.T. party uniform when he was attending its events. In response, Olo said he was invited to attend the event. If he was invited to attend an event by the H.R.P.P., he would also dress accordingly.
In her closing submission, the lawyer representing the members argued that the Speaker doesn’t have any power under the Electoral Act to make the declaration of vacancy for the seats. She pointed out that the proper procedure were not followed by the Speaker.
Mauga explained that when the members denied the charges, a motion should have been made in Parliament to suspend the members and refer the matter to the Court for determination.
However, she said the members were instead stopped from going to a Parliament session in November and had their pay ceased.
“That is why they brought the matter to Court because they waited and it didn’t seem like they would refer the matter,” she said.
In relation to the charges against the two members, Mauga also pointed out that the act used by the Speaker to vacate the seats of the members was an old act that has been repealed.
“If you look at the sections of the legislation that the Speaker seem to have relied on to make his decision on the 28th October is referring to provision of the law at that time didn’t existed,” she said. “It’s the old law that was repealed and amended in September.
“And the Clerk was very specific that these documents were put together to base his decision on.”
Mauga added that the decision from Speaker appears relied on “grounds based on repealed law”.
She stressed that the decision from the Speaker of the House to vacate the seat of the members and preventing them from attending the November sitting was breach of the Constitution.
“It is for these reasons that we are saying that he had no jurisdiction to make decision to declare seats vacant and secondly it was based on laws that didn’t existed,” said Mauga. “It is therefore unlawful and his decision to vacate the seats is in breach of the Constitution.
“And accordingly the actions of the Speaker from preventing the members from attending parliament were unlawful and the actions to vacate seats were unlawful.”
In response, Luamanuvao in her submission emphasised that the letter from the Speaker vacating the seats of the members was based on section 141 and 142 of the Electoral Act.
“It does not remove the fact that the Speaker based his decision on the vacation of seat,” she said.
“Counsel has submitted given the notes attached to Tualaulelei affidavit the sections were out of date. Perhaps the Electoral amendment act (2) was passed on 23rd September and the Speaker’s letter was dated 28th October.
“It is not a new charge, by the time the Speaker wrote the letter the amendment existed.”
Furthermore, Lumanuvao said there is no denial from the members that they have joined F.A.S.T.
“Yet in support of their legal action the applicant each sworn in affidavit admission they registered under F.A.S.T. party,” she said.
“The very action they deny in their letter…”
Justice Clarke then queried the lawyer to address the issue of the process of vacating the seat of the members.
In response she said the process outlined is that after the members filed their objection it was for the Speaker to refer the matter to the Supreme Court
“That step was not taken,” she said. “But our submission is the registration by the first and second applicant as candidate for F.A.S.T. was an admission that they have joined a party and supported by affidavit before the Court.”
Acting Chief Justice Tuatagaloa then asked the lawyer if the members seat are not vacant despite the announcement from the Speaker that it is.
She pointed out that the section 143 of the electoral act states that there are only two ways that a seat can be declared vacant.
First is if a member agrees to the charge and secondly is if they oppose and take the matter to Court and a decision is then made.
In response, Luamanuvao said that is the reason why they have filed a counter motion in the Court.
She said the counter claim is if the Court is of the view that the decision made by the Speaker still stands then the matter is before the Supreme Court.
But Justice Tuatagaloa pointed out that there is another step that should have been taken before the matter is filed in Court proposing to vacate the seat.
She queried if the step should have been that the members are suspended pending decision from the Court.
Luamanuvao argued that her understanding is that the Assembly makes a resolution but it’s not mandatory to suspend the members.
At this point Justice Clarke pointed out that is how the 143 section interacts with section 142 in absence of the acceptance from the members on the charge until the Court rules.
The lawyer said this was the reason why a counter motion was filed.
In the conclusion of her closing submission, Luamanuvao said the claim from Olo and Faumuina is farfetched and it is to make a farce of the law.
She said the case is unique in that in other jurisdictions the nomination of candidates doesn’t close until after the dissolution of parliament.
The Court has reserved its decision on the matter until Monday afternoon next week.