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Electoral Act "unconstituional", Tuala claims

Lawyer and election hopeful Tuala Iosefo Ponifasio believes the latest Electoral Act is unconstitutional, saying the three-year monotaga requirement clashes with newly formed constituencies for the next election. 

In a motion filed in court earlier this month, Tuala claims that the Electoral Act 2019 disqualifies people from standing if their constituency was divided or newly formed in the last three years, meaning any constituency that has changed since the previous election. 

Tuala intends to stand for Gagaemauga No.1, which absorbed villages from the dissolved Gagaemauaga No.3 seat under the Electoral Constituencies Act 2019 (passed in June this year).

The Electoral Constituencies Act 2019 reshuffled several villages into different constituencies, such as the villages formerly in the Urban West and Urban East constituencies, and in Gagaemauga No.3 (now dissolved). 

He claims people like him, whose villages are in a newly formed or divided constituency, cannot fulfill their three-year requirement to serve monotaga in a village in their constituency, because that constituency changed in the last three years.

And because of an exemption at the end of the Electoral Act 2019, Tuala claims that the new constituency laws mean the only people eligible to stand for the newly outlined districts are current Members of Parliament.

The exemption is in section 156c, which reads: a Member is for the purpose of section 8(1)(e) exempted from the requirements under that section if the Member at the commencement of this Act represents a constituency that will be divided or newly formed, as a result of an enactment regarding constituencies.

Section 8(1)(e) refers to the monotaga criteria, wherein a qualified candidate must have served monotaga in their village in a constituency for three years before their nomination papers are filed. Their village is where their matai title was bestowed.

The remedy for this alleged discrimination is to expand the exemption to anyone, not only to current Members of Parliament, Tuala says. 

The motion states that both aforementioned sections are unconstitutional and therefore void, as they contradict Article 15 of the Constitution, freedom from discriminatory legislation. 

In addition, Tuala’s motion claims that the Electoral Act, in empowering the Electoral Commissioner to disqualify someone from contesting a seat, is unconstitutional too.

The Attorney General is scheduled to respond to the motion on Monday. 

Tuala is being represented by Fuimaono Sarona Ponifasio.

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