Flaws in electoral law embarrassing
Close to six weeks after receiving the electoral petition certificates and report from the Chief Justice, the House Speaker Papalii Lio Masipau on Tuesday released the warrant for the Office of the Electoral Commission (O.E.C.) to begin preparations for the by-elections.
The seven constituencies that will return to the polls are: Sagaga No. 3; Sagaga No. 4; Aana Alofi No. 2; Safata No.2; Falealili No. 2; Aleipata-Itupa-Lalo and Falealupo.
The by-elections are scheduled for 12 November 2021.
The Electoral Commissioner, Faimalomatumua Mathew Lemisio, recently revealed a total of 16,862 voters will cast their ballots in the by-elections.
The fact that the Speaker took close to six weeks to announce the by-elections date was beginning to weigh heavily on a lot of people, including the former Prime Minister and Human Rights Protection Party (H.R.P.P.) leader, Tuilaepa Dr. Sa'ilele Malielegaoi.
He had warned that he would consider legal action if the Speaker continued to delay the issuing of the warrant.
Interestingly the question that comes to mind is why did it take the Speaker this long to peruse the report compiled by the Chief Justice on the outcome of the electoral petitions?
Well, the nation finally got to know the reason behind the delay on Tuesday, with Papalii revealing that amidst a hectic parliament session that included the tabling of the Government’s $982 million 2021/2022 Fiscal Budget he needed more time to peruse the findings of the Chief Justice’s report.
Of particular interest in the report was the Supreme Court’s determination of what it described as a “corrupt arrangement”, whereby both the victorious M.P. and the electoral petitioner struck an agreement for the petition to be dropped and they both returned to re-contest a by-election.
The Court in its ruling following the election petitions viewed the agreement as a corrupt arrangement that the candidates consent to and was an attempt to circumvent the electoral petition process. The Court left it to the Speaker to make a determination on the legality of the act.
On Tuesday the Speaker announced that the law was “technically deficient” in relation to the attempt to circumvent the electoral petition process and added that the agreement between the M.P. and the petitioner did not, in his view, translate to a corrupt practice.
“There is no provision which disqualifies a candidate from standing in a by-election where they have been found guilty of attempting to circumvent the process,” he said.
“That means that the Electoral Commissioner and me as the Speaker have no powers to stop the candidate guilty of attempting to circumvent the process from running again despite resigning or withdrawing a petition.
“In this case the candidates have not been found guilty of a corrupt practice but have been found to have attempted to circumvent the process which is not a corrupt or illegal practice [as] defined by law.”
On the fact of it there was intent to circumvent the process, but the law fell short of providing a comprehensive definition of that particular act during an electoral petition nor prescribing penalties.
It is embarrassing that Samoa’s Parliament and even the Court appear to have been caught out by defective legislation, which has become a familiar story with the past H.R.P.P. administration.
The fact that our electoral laws are unable to address this anomaly which the Court highlighted doesn’t augur well for voters.
But perhaps the most disappointing outcome from this legal quagmire is the fact that a precedent could now be set for future elections, whereby a defeated candidate and a victorious M.P. could choose to capitalise on this legal blackhole.
There is no doubt a whole set of laws enacted by our Parliament over the years need revisiting in this new parliamentary term and this one concerning the conduct of a general election has to be right up there at the top.
But first things first we appeal to our Members of Parliament to take their responsibilities in the House seriously and look forward to a trouble-free by-election period, starting with pre-polling on 10 November 2021 and polling-proper on 12 November 2021.
And having seen how close our democracy came to turning on its head in the recent constitutional crisis, our leaders should take time to remind themselves that the power belongs to the people, and it is the people who give you the mandate.