Decision overturns more than an election

By The Editorial Board 05 May 2021, 10:50PM

Over the last decades, Samoa has carefully polished its image as a democratic nation, one governed by laws, not men. 

We created independent offices of review, arm's length tender processes, and all the other institutional hallmarks of democracy that are pleasing to the ears of aid donors and cement our place in the community of democratic nations. 

But on Tuesday evening that was unwound; we saw the facade of Tuilaepa Dr. Sailele Malielegaoi the democrat crumble in a little more than ten minutes. 

By agitating and creating the conditions for the overriding of a democratic verdict, the caretaker Prime Minister stained his own legacy and our country’s.

In refusing to accept the potential of defeat and seeking a second try at winning office, Tuilaepa has perpetrated incalculable damage to this nation’s reputation and its institution. 

The caretaker Prime Minister, of course, pressed for the decision reached by the Head of State, His Highness Tuimalealiifano Vaaletoa Sualauvii II, on Monday evening.

Fiame Naomi Mataafa, the leader of the Fa'atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party opposed it.

In doing so, Fiame noted that the conditions of political uncertainty cited by the Head of State in his decision to cancel the election were a result of decisions taken by the caretaker Government itself. 

“The reason there is a 26-26 deadlock is the result of a decision and action taken by the Electoral Commissioner and signed by the Head of State,” she said. 

Were it not for an about-face by the Office of the Electoral Commission on the question of whether enough women had been elected to the Parliament, then there would be no political gridlock in need of solving.

This is the first of many logical inconsistencies in the justification provided by the Head of State in his justification for voiding a legitimate democratic election. 

But telling too was the timing of this decision, based, as it was, on the apparent inability for either party to form Government. 

Why did it come the day before the Supreme Court was scheduled to hear a case that could potentially have handed Fiame a wafer-thin governing majority, but a majority nonetheless?

Such timing reminds of another decision with profound political implications handed down last month.

A decision by the Office of the Electoral Commissioner to appoint a sixth woman M.P. to Parliament came just before Tuala Iosefo Ponifasio’s announcement that he was joining F.A.S.T.  

That two consecutive decisions to shift the political goalposts should both have been made on the eve of a potential democratic outcome being achieved is questionable. 

And so too was the substance of the Head of State’s decision to call for a new 21 May election. 

“I have been assured that as the Head of State I am able to call fresh elections where, after a general election, there is no clear majority to form a government; and where it is in the public interest to do so,” His Highness said. 

From whom were these assurances provided? 

What part of Samoa’s constitution allows the Head of State to override the democratic process before a Parliament has even convened and it has been established that no one party leader can command a majority on its floor?

We can find no such authority in our nation’s founding document. Taking such a radical course of action obliged His Highness to explicitly tell the people of Samoa from where he was drawing his authority.

It is a common misconception that the Head of State has been invested with absolute legal power. This is not true. He may be personally immune from criminal prosecution but challenging His Highness’ decisions and their foundation in law is a regular occurrence. 

Indeed, it was the decision by the Head of State to issue an election warrant to Aliimalemanu Moti Moemoemausu Alofa Tuuau of Alataua Sisifo that was the subject of the court challenge his announcement preempted.

The authority on which this extraordinary and unprecedented intervention in the democratic process is certain to be challenged in a court of law.

Whether this even exists is of far greater consequence than any of the reasons offered by His Highness for taking such a radical course of action.

Nonetheless, it should be noted that many of these are highly debatable, for example his citing of the negative impact the close election has had on the quality of Samoa’s political discourse.

Insulting language has been an indispensable part of the caretaker Prime Minister’s public persona.

It was only the day before the Head of State’s decision that he released (a soon retracted) statement describing the newspaper you hold in your hands as a vile tabloid. 

For Tuilaepa, of course, this was a fairly mild statement; he has regularly insulted the intelligence, disparaged the appearance, and even questioned the sanity of those who have provoked his political ire. 

But issues such as these are mere quibbles.

The most serious aspect of this ruling is the damage it threatens to do to our judicial system and its role being usurped entirely by the executive branch, of which Tuilaepa and the Head of State are both a part.

Tuesday’s announcement had the effect of potentially nullifying the outcome of a case actively before the court. 

It was seized upon on Wednesday by the Attorney-General’s Office. It is seeking to have the case thrown out because the question it was seeking to settle - the legitimacy of adding another M.P. to Parliament - arguing it has been rendered academic by the Head of State’s pronouncement. 

That will doubtlessly further add to a legal logjam that could prevent a decision being reached on fundamental democratic questions before this new election date. 

The Head of State cited the unburdening the court of a further 28 electoral petitions that had been lodged by dissatisfied candidates as another motivator for his decision to act as he did.

We agree that the unprecedented number of electoral petitions filed following the 9 April election were damaging for democracy. But we also believe that in matters of law principles of justice should always triumph. 

Regardless of their motivations or the strength of their cases, people making accusations of illegal behaviour deserve their day in court. If we begin to unpick that principle, for whatever reason, then we advance down dangerous terrain indeed. 

The Head of State also said both had endeavoured to make political attacks on the court, something he said could damage their legitimacy. 

“Whatever the outcome of the petitions, the decisions of the Courts will be questioned and viewed through that prism,” he said.

But what is more damaging to the authority of our judiciary? Critical remarks, or the assumption that it is not up to the task it has been democratically assigned? What of negating a case on which it was sitting in judgment regarding an important constitutional question that urgently needed to be settled, if not now then for the future. 

The judiciary, embattled as it has been in this past year, is this nation’s final line of democratic defence. It has been made all too clear that this is a role with which others cannot be trusted. 

By The Editorial Board 05 May 2021, 10:50PM
Samoa Observer

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