The Opposition Leader who should have been

Tuilaepa Dr. Sa'ilele Malielegaoi may well end up being the finest Leader of the Opposition that Samoa never had. 

He still might come to occupy that chair, of course, but the ideal moment for seizing it was at least six weeks ago.

Upon the proclamation of the election results showing he had lost the national election, he would have gained the respect of the many, many Samoans who voted for him by showing humility in defeat and congratulating the new Prime Minister-elect Fiame Naomi Mataafa.

But his selective interpretations and rhetoric have painted him into a corner by opposing at every corner attempts to form a new Government. He is now fast finding himself out of options.

Instead, the caretaker Prime Minister and his Human Rights Protection Party (H.R.P.P.) cadres are increasingly retreating into political fantasies.

In a recent interview the party’s deputy leader, Fonotoe Pierre Lauofo, said that the “court judgment was clear” and that the sixth M.P.-appointed to Parliament was going to be from the H.R.P.P. 

I’m sorry you had to find out this way, Fonotoe, but there was no such finding by the Court of Appeal.

Tuilaepa, has been quite happy for Parliament to meet. But only on the condition that an extra 26th M.P., Aliimalemanu Alofa Tuuau, be allowed to join the sitting, negating the Faatuatua ile Atua Samoa ua Tasi (F.A.S.T.) party’s majority. 

In what world is that a negotiating term which someone might reasonably accept? Moreover, did Tuilaepa not read the court’s judgment expressly declaring Aliimalemanu’s warrant of election to Parliament void?

Some might suggest that the caretaker Prime Minister is getting bad advice.

But the fact that he has had more positions than a yoga instructor on these issues of constitutional law suggests that only one man, perhaps one struggling to come to terms with the loss of power, could have been in charge of this messy strategy.

In one week, he apparently went from suggesting he would be agreeable to suggesting that Parliament sit (one the proviso that it be done on his terms) to saying that the Court of Appeal ruling meant Parliament could not sit until post-election legal challenges and by-elections are concluded.

There is nothing in the Court of Appeal’s verdict to suggest that the court made such a ruling or was even inclined to it.

Nor is there anything in our recent history to suggest that the court might be given to such an act; in 2011, electoral petitions continued as Parliament sat, with M.P.s sitting in Parliament with question marks about how long they might do so actively hanging over their heads.

Instead, Tuilaepa has placed in the judges' words things he would rather they have wrote, even those which would have been in direct contradiction to their ruling (as seen by his request that Aliimalemanu sits in Parliament).

Instead of taking defeat on the chin and for the higher principle of Samoan democracy he and reality have instead begun to part ways. And it is his long term reputation and public image that has suffered as a consequence. 

Let us consider the fact that Tuilaepa was an active behind-the-scenes party to disobey a court order demanding Parliament convene within 45 days of the constitution: a clear legal requirement of Article 52.

The day before the final day for this constitutional provision to be met, Monday 24 May, the day on which Fiame was sworn in outside a locked Parliamentary premises, he was reminded of these obligations by the Supreme Court.

As they ruled that Monday, an earlier attempt by the Head of State suspended Parliament was simply unlawful:

“The suspension purports to countermand a lawfully made Proclamation in pursuance of the Head of State's Constitutional obligation to call Parliament to meet not later than 45 days after the holding of a general election,” the court ruled. 

“The Head of State [does not have] the power to avoid or disavow the Constitutional obligation to call Parliament to meet not later than 45 days after a general election.”

And yet Tuilaepa presents himself as the arbiter of what is and what is not constitutional, saying that the swearing-in of F.A.S.T. M.P.s was unlawful for the Head of State’s absence.

Tuilaepa knows too well the meaning of these rulings and yet chooses to sift through them for excerpts that reinforce a political reality in which he did not lose the election and currently is not the leader who controls 25 seats in Parliament to F.A.S.T.’s 26.

He is in too deep now. The Prime Minister has been party to an attempt to actively undermine the constitution. He and his Attorney-General were among those cited in a contempt of court motion, included in which were several of the recent disparaging remarks he had made about the judiciary. Many of these have been chronicled in these pages.

But most of all he had violated not just a specific legal provision of the constitution but one of its higher principles by refusing to acknowledge an election result: “The State should exercise its powers and authority through the chosen representatives of the people”.

Let us imagine an alternative universe in which Tuilaepa did not lower himself to delaying tactics, making contradictory public statements and selectively brandishing and ignoring elements of the rule of law depending on whether they suited his purposes.

He may well have spent three months on the opposition benches. As a man who knows Parliament better than anyone else does, he could have made it very difficult indeed for F.A.S.T. to govern. As someone whose voice remains the loudest still in the Samoan national political conversation, his criticisms would have carried much weight. And let us make the obvious point: it is in Tuilaepa’s nature to criticise energetically and inventively. Some Opposition Leaders end up making awful Prime Ministers. But we believe this caretaker Prime Minister would make a truly excellent Opposition Leader.

Holding the Government of the Day is a noble thing indeed and he could have overseen the protection of his legacy in Parliamentary debates.

All the while the legal process of election petitions and counter-petitions would be overseen by the courts and lawyers, possibly or possibly not resulting in by-elections.

Where it stops and what these cases' outcomes will be, nobody knows. The last time we had active petitions was in 2011, from which the H.R.P.P. gained two seats from four by-elections. With their paper-thin majority, there is every chance that he could have found himself moving across the chamber and into the Prime Minister’s chair without these weeks of showing contempt for democracy and law following him there. 

But in seeking to avoid having the history books dotting an asterisk against his uninterrupted record as the Prime Minister, they will now show an unerasable stain.

And for what?

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