Democracy and court should work in concert

Increasingly we are faced with the possibility of an election that will be decided in a court of law, not by the ballot box. 

Fittingly, the last Parliament was, if nothing else, an extended lesson in the theory of how the law intersects with politics. 

Laws passed by the Government overhauling the judiciary reminded us of the complex web of interrelationships between institutions - or checks and balances to use the usual term - on which Samoan democracy rests. 

So it’s more than slightly ironic that the fate of the next Parliament now rests in the hands of the judicial branch after a court overhaul passed last December was described as threatening to undermine the rule of law itself. 

But will the ultimate ruling on election court cases be democratically just?

Despite beginning with some hiccups, a legal challenge has already been declared by the Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) party to a decision that has shaken up the results of the election like an earthquake. 

A snap decision by the Office of the Electoral Commissioner to expand the size of the Parliament and install an additional Human Rights Protection Party (H.R.P.P.) aligned M.P. to Parliament because it met a constitutional quota requiring 10 per cent of all M.P.s are women. 

It brings the major parties to a seemingly impassable deadlock of 26-seats apiece, one that up until then could only have been broken by independent M.P. Tuala Iosefo Ponifasio.

Critics allege that the office’s announcement was made, as it was, at the irregular hour of just after 9.30 pm on a Tuesday. 

We are not privy to the Electoral Commissioner’s thinking on this matter. But the statement could not have been more perfectly timed to undercut the impact of Tuala’s announcement less than 12 hours later that he was joining F.A.S.T. 

F.A.S.T. has declared the decision unlawful and unconstitutional and declared it a clear case of Government manipulation. 

After this case, we are to see more of the ugly side of the intersection between law and politics. 

The results of individual seats being contested through legal challenges (or petitions) is often termed election “lawfare”.  

And indeed it is a process in which the caretaker Prime Minister Tuilaepa Dr. Sailele Malielegaoi is himself involved.

The man on whom the nation’s eyes were fixed so closely before the Commissioner’s office dropped its political bombshell, Tuala, appears to be high on the list of those challenged. 

He vanquished his H.R.P.P. political opponent by a thumping margin: 664 to 337.

But Gagaemauga No.1.’s losing candidate, Le-Ati-Laufou Alofipo F. Manase said it was his right to launch a challenge and he was considering doing so. 

And Le-Ati-Laufou told the Samoa Observer in Friday’s edition that Tuilaepa himself would be determining his decision-making (“Tuala facing possible legal challenge”). 

He was reluctant to discuss details of the lawsuit but revealed that Tuilaepa would be traveling to his home in Saleaula from Apia to meet him and discuss the petition. 

That would certainly corroborate Tuala’s account of his negotiations with the leader of the H.R.P.P. about which party to lend his support. 

He alleged a "threat" that was allegedly made by the caretaker Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi, that if Tuala did not vote for the H.R.P.P. he would face a legal challenge.

But while such seemingly targeted challenges may leave a bad taste in the mouth of voters and be perceived as undemocratic, they ultimately, if successful, in another exercise of democracy: a by-election.

But the Commissioner’s bombshell has exposed the little guidance offered by the constitution in the case of tight elections. 

The veteran lawyer Fiona Ey has noted Parliament is only obliged to convene within 45 days after a national election. 

There is no prescription for when a Government might be formed.

In one of many potential future political trajectories lying before us, the country could remain without a Government while election petitions are heard and by-elections are held - probably months later.

Of course, Parliamentary conventions hold fresh elections should be held in the event of a deadlock. This is something that Tuilaepa has said he advocates. But it is also seemingly contradicted by his involvement in Gagaemauga No.1 case - an issue that would become utterly irrelevant if a fresh national poll were called. 

And given the public’s largely negative reaction to the Electoral Commissioner’s decision - and going back on its word - that possibility could have H.R.P.P. election strategists sweating. 

That could well leave the nation hostage to a legal process. The Supreme Court has apparently given itself two months to hear legal petitions.

As you can see in the opinion piece below, the law lecturer at Auckland University, Fuimaono Dylan Asafo, now believes the Office of the Electoral Commission was wrong to act as it did and expand the size of Parliament. 

His argument is incredibly thoughtful and his thinking rigorous. 

It is a testament to why the Commissioner should have put this question before a court before unilaterally deciding to make a late-night announcement on Tuesday that would change the balance of power in the XVII Parliament. 

On the issue of petitions, there are too many stories, allegations, and videos suggesting that candidates and their committees were behaving illegally to suggest we had an entirely clean election this month.

The only way for politics in Samoa to be cleaned up and the country’s political class to learn is through penalties or punishments imposed upon them by the courts. . 

But on the immediate question of whether the Office of the Electoral Commissioner was right to reverse an earlier decision and install a new M.P.-elect, democracy must be central to any decision.

As an expert on Samoa’s constitution, Dr.Vito Breda told the Samoa Observer on Wednesday there are two distinct issues at play in the Office of the Electoral Commissioner case: what is right legally and what is right for democracy. And one can reinforce each other. 

“My tendency in a situation like this is to look at the reality of the situation, which is who actually won the election,” he said. 

“How the decisions to increase the numbers has been discussed and evaluated [...] that is where the legality issues might play a role.

“This is a huge question mark.”

We agree with this analysis. Any judge reviewing the challenge to the Electoral Commissioner must examine not only the law but also whether such a radical change reflects the will of Samoan voters. After all, that is what democracy and all its moving parts, is fundamentally about.

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