Lawmaking not about constraining democracy

And so Prime Minister Tuilaepa Dr. Sailele Malielegaoi has joined a very exclusive club of incumbent Members of Parliament who will run in next April’s election uncontested.

After four decades of representing the people of Lepa, we offer our congratulations to Tuilaepa for securing yet another term.

But the fact that he has done so five months out from the date of the election gives us pause for thought about the role laws have already had on an election that is yet to be contested. 

Anything that makes the quality of our democracy less competitive is lamentable; a ballot paper with only one name on it is perhaps the greatest symbol of this deficiency. 

Of course Tuilaepa is not the only candidate to be in such a position. Fiame Naomi Mata'afa will not face any opponent in her seat of Lotofaga. 

No-contest elections can reflect a huge amount of trust placed in a candidate. 

But the ability to express dissatisfaction with your representative is a key part of democracy, especially when voting becomes compulsory. 

And the circumstances in which the voters of Lepa were this year denied a competitive contest reflected the broader shortcomings of this year’s candidate nomination process.

We and many others have previously called to task the Prime Minister for interfering in the judicial process. 

And the obverse of that is true. We do not think it is ideal for a democratic field of candidates to be determined by judicial decree.

Nor do Judges themselves relish the task of becoming involved in shaping the democratic playing field. Judicial intervention in this regard is something that should be deployed as a last resort.

But the April general election has already made history as that most shaped by legal action in Samoa’s history. 

Some 20 petitions were initially lodged questioning candidates’ ability to nominate after the nomination process was over. 

That led to several political contests having been determined long before votes were cast. 

And Members of Parliament themselves have created the conditions for such a legalistic nomination process after the passage of amendments to the Electoral Act.

In an earlier case in which an aspiring candidate, Paloa Louis James Stowers, lost a legal challenge for the right to represent the Faleata No.3 constituency, Judges made clear that the law governing candidate registration was ambiguous and deficient. 

Justice Vui Clarence Nelson and Justice Tologata Tafaoimalo Tuala-Warren called on Parliament to “revisit” the specific requirement for monotaga (service) contained in the Electoral Act, due to its “inconsistencies”. 

“The whole issue of monotaga as defined by Parliament has caused problems of interpretation in this and the other matters before the Court,” the Justices ruled. 

“In particular, whether it should include sitting in every Village Council meeting. On this there is inconsistency in practice among the different villages. The issue should be revisited.”

The two most hotly contested issues in petition cases have related to monotaga and the registration of matai titles.

We make no criticism of the Judges’ involvement in these cases, nor their findings; they are obliged to interpret and act upon legislation; that is their duty. 

But as they have themselves noted there are grey areas and loopholes throughout these laws.

These have doubtlessly led to some candidates’ nominations being approved and others’ overturned on the basis of technicalities. That runs counter to the spirit of openness which is key to democracy. 

And the Prime Minister’s case appears to be a prime example. 

For the third time, Tu’ula Kiliri Tuitui, of Saleapaga's bid to compete against the leader of the country in the electorate Lepa has been denied. 

This time, another Lepa candidate, Faletagoai Tausaga, of Aufaga, claimed that Tu’ula did not render his monotaga as required. The court agreed.

Faletagoai may have been making a legitimate point about a potential political opponent.

But the announcement on Monday that he was withdrawing his candidacy after having taken out an opponent to the Prime Minister cannot but raise questions.

Questions about whether Tuilaepa’s relative was indeed set on running for the seat were raised long before his withdrawal on Monday, 

They arose at the petition hearing for Tu’ula’s candidacy. 

He dismissed them then but they are now cast in a new light by Faletagoai’s announcement of his withdrawal but not his reasons.

Tu’ula’s lawyer, Unasa Iuni Sapolu, put these doubts to him plainly during a hearing of his legal challenge last monh. 

Faletagoai denied he had registered to run for the seat for the sole purpose to “knock out” the Prime Minister’s opponents; he replied that if anyone is preparing to run for Parliament they should do what is right. 

Whether taking out a candidate from a democratic race and then withdrawing falls under the umbrella of what is right is a question that is very much open for debate. 

We shall reserve judgement on this question until the facts transpire about Faletagoai’s reasons for withdrawing from a political race after using the courts as an avenue to reshape it. 

But it should suffice to say that the events of the Lepa case raise questions about the degree to which the law is being used to stifle democracy. 

There was, on Tuesday, a prime example of this in action when a much-humbled Speaker of Parliament, Leaupepe Toleafoa Faafisi, welcomed the return of Olo Fiti Vaai and Faumuina Wayne Fong.

It was a little more than a month ago that Leaupepe was doing the reverse when he confidently declared the two M.P.s’ seats vacated under anti-party switching laws after the independents announced their intention to run for Fa'atuatua I le Atua Samoa ua Tasi (F.A.S.T.) at the next election.

Leaupepe was confident that this action meant the independent M.P.s had fallen foul of anti-party switching laws contained within the newly amended Electoral Act.

But on Monday a panel of Supreme Court Justices ruled in favour of the members' claim that the decision of the Speaker’s was in breach of the constitution.

Leaupepe had a humble bearing on Tuesday when he welcomed the two M.P.s back into the house and waxed lyrical about the spirit of Christmas and forgiveness. 

“Let us embrace the spirit of Christmas, forgive and move forward,” Leaupepe said. 

He gave members little choice in that regard by refusing to take questions from the floor on the matter. 

But the M.P.s’ return and the Prime Minister’s lack of opposition for the election both contain an important message about democracy. 

Lawmaking should be the highest expression of the democratic process; to deliberate and pass legislation for the betterment of the country; to reflect the will of constituents and the nation as a whole.

But when it begins to act as a constraint upon the openness and competitiveness of our democracy it becomes self-defeating. 

Democracy has everything to gain from having more voices and contests; with fewer it can only lose. 

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