Banishment unacceptable, says former Judge

By Lanuola Tusani Tupufia - Ah Tong, 26 April 2019

The decision by Tuasivi and Fogapoa to banish a Samoa First Political Party candidate who contested the recent Fa’asaleleaga No. 2 by-election is unacceptable.

That's the view of a senior legal practitioner and former District Court Judge, Tauiliili Harry Schuster. 

Tauiliili, who is also a former Member of Parliament, was asked for his thoughts following Lema’i Faioso Sione's banishment for not obeying the village's decision to support the ruling Human Rights Protection Party candidate, Namulauulu Sami Leota. 

“There should be no parameters by anyone on your right to run in the election or on which political party or no political party you believe in,” Tauiliili said. 

“I totally do not accept village councils who believe that you should run for certain political party whether it’s H.R.P.P. or Tautua. This is a God-given right for you and no village council should take that away from you. 

“It is a God given right and there should be no restriction either by law or from village council to restrict people from running in election. It is either we are free or not.” 

According to Tauiliili, any village council that controls the election of their candidates is unfair. He pointed out this is one area where the fa’asamoa does not go together with democracy.

“The village council is responsible for the welfare and development of the village,” he said. 

“But in democracy the village should not say to support only one candidate and allow that one person to represent all. 

“The position (Member of Parliament) does not belong to the village, it belongs to the constituency but there is that nature from our people that they want their own candidate from their village to win. But the interest of the whole is not more important than the interest of the one…I do not believe in that.” 

Tauiliili said it would be no use having a Constitution when individual rights are breached. 

He also spoke about the Village Fono Act, which was established to strengthen the role of the Village Fono. 

The former Judge stressed that exercising such powers of the village council should be in accordance with the Constitution. 

“The Village Fono Act is important to regulate the village but it should be done so in accordance to the Constitution,” he said. 

“That act should not be more important than the Constitution. I don’t get it when councils as a group make decisions to oppress rights of others…there are some matters that is consistent with our general law but by all means do what is best for the village without breaching individual rights.”  

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Tauiliili also made reference to the compulsory vote and compulsory registration, which links back to the candidate that a person will vote for. 

He said if the village council says to support a particular person for the election it would mean the voter is unable to exercise their right to vote if the other candidate has been disallowed by the council. 

“The act says it is compulsory to vote and register yet the person that you might want to vote for the village does not support them,” he said. 

“This means that automatically I cannot exercise my vote because the village has a preference of the candidate to support and therefore have limited my right to choose the person I want to vote for.

“Yes there might be that candidate that the village is asking to support but that particular candidate might not be my choice.” 

In a recent interview with the mayor of Tuasivi and Fogapoa village, Namulauulu Sefo Taliva’a, he said Lema’i was banished because he disobeyed a village decision. 

In defending their decision to banish the candidate, Namulauulu said Lema’i ignored the village council’s decision. 

“He is free to exercise his right to run in the election,” said Namulauulu Sefo.

“But the reason he has been banished is because he was aware of the Council’s decision to support Namulau’ulu Sami and he too agreed to it.

“Despite the fact that he was aware of the Village Council’s decision, he went ahead and ran in the election but did not inform the village of his intention to make it official.

“He is free to exercise his right to run in the election and the village council also has their own right to banish him from the village.”

The Electoral Commissioner, Faimalomatumua Mathew Lemisio was also contacted for a comment about the matter between the village council and the candidate. 

In response, Faimalo said the Electoral Office does not have an active role in the decision making authority and process at village council level. 

“The affected party, however, can seek remedy through legal procedures available as some have successfully done so in the past, should they feel that their rights have been violated.,” he said. 

“The Electoral Act governs eligibility requirements for voters and candidates alike.  It also sets out electoral offences and penalties for such. 

“As I said, the law is there and the affected individual must utilise this law if he or she feels that her rights under such laws are violated. 

“Now if this candidate feels that his rights have been violated, then the best way to ensure that his concerns are appropriately addressed is to seek a legal remedy like others have done in the past.”

The Electoral Commissioner added, in doing so, it will further develop the legal jurisprudence on these issues by setting more legal precedents and raising more public awareness at village council level on procedural directions when making these decisions.  

By Lanuola Tusani Tupufia - Ah Tong, 26 April 2019

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