Electoral Act passed by Parliament challenged in Court again

Changes to the Electoral Act 2019, discussed and passed by Parliament on Tuesday, are back under the spotlight before the Supreme Court.

The legal challenge mounted against the Act follows allegations that amendments the Government had agreed to make to the law were not delivered as promised when Parliament passed the Electoral Amendment Bill No. 2 2020 into law.

Lawyer for one of the applicants, Mauga Precious Chang, told the Supreme Court on Friday that despite everyone agreeing to the amendments laid out in a consent order, Parliament passed different ones on Tuesday.

Supreme Court Justice, Tafaoimalo Leilana Tuala-Warren, has scheduled the matter to be heard again on Monday, after she inspects the consent orders and the newly passed Electoral Act amendments.

She will determine the extent to which the amendments deviate from the consent orders and whether the case ought to continue. 

At issue is whether the Attorney General’s office is found to have held true to the undertakings it made to change the law.

Justice Tafaoimalo said if she agrees that the consent orders were not obeyed, the applicants can amend their plea to focus on the new Electoral Act and continue where the case left off, with hearing submissions from clients and witnesses.

The challenge comes just days after Parliament passed more than a dozen amended clauses into the Act on Tuesday.

The amendments were born out of a court case heard earlier this month, where the Electoral Act was called discriminatory and was accused of giving unfair advantages in the upcoming election to sitting Members of Parliament, and was therefore unconstitutional.

After two days in Court, applicants, Tuala Iosefo Ponifasio and Papali'i Panoa Tavita agreed to withdraw their application on the condition that certain changes were made to the Electoral Act 2019, using changes agreed on between themselves and the Government’s lawyers contained in consent orders.

The consent orders, which until Tuesday’s Parliament session were confidential, outlined which sections of the Electoral Act were to change.

The Samoa Observer can now reveal these orders included changes to Section 8 and Section 156c, and a table outlining exactly which constituencies can follow slightly different expectations on their compulsory monotaga requirements, for the upcoming election alone.

Mauga told the court that Section 156c was not amended in accordance with the consent orders. Section 156c was challenged for unfairly exempting sitting Members of Parliament from fulfilling three years of monotaga due to the changed electoral constituencies.

The consent orders, which according to the agreement between both parties would have removed the discriminatory elements, amended the law to exempt only current Members or intending Members of the Urban Constituencies.

After they are dissolved in January, those constituencies will instead become Vaimauga 1, 2, 3, and 4, and Faleata 1, 2, 3 and 4.

This should have resolved Tuala and Papalii's allegation that because those Vaimauga and Faleata are new as of January 2019, no one could serve three years of monotaga there.

The consent orders also explicitly changed the requirement from three years of monotaga ending on the day nomination papers are lodged, to a minimum of three years monotaga served in any of the 23 constituencies affected by the redrawn boundaries.

The new amendments instead read that the monotaga must be served for a consecutive three years.

When comparing the text of the consent orders and the new amendment, Mauga said the two are “totally different.

“One of the discussions we had was to make sure it doesn’t apply only to members, that the exemption also includes a person intending to contest in new electoral constituencies that were previously urban constituencies.”

The consent orders state that: “A person who is a Member representing an Urban Constituency or a person intending to contest within the new Electoral Constituencies, is exempted from the requirements under that section…”

The new amendments split the sitting members and intending nominees up into two separate groups, Justice Tafaoimalo said.

But Mauga said the exemptions are now different for sitting members and intending nominees: sitting members must render monotaga for a consecutive three years under their registered matai titles regardless of where that title is registered.

But the exemption for people wanting to contest must have a registered title from one of the constituencies affected by the redrawn boundaries.

In essence, this means the two Members currently representing the Urban seats could use their monotaga from any village they are titled from, but intending nominees are limited to the villages of the four Vaimauga or Faleata constituencies.

In addition, Mauga said the word ‘consecutive’ should have been ‘minimum’, changing the requirement entirely, she says.

“It’s a matter of courtesy, coming over and discussing with us, as we had agreed to this, before they put it to Parliament,” she said.

Senior lawyer in the Attorney General’s Office Sefo Ainuu did not agree that the consent orders had not been obeyed in the amendments tabled, and then passed in Parliament.

“The spirit of what we agreed has been achieved in the amendments,” he told the court.

Speaking to the section in question, Section 156c, Mr. Ainuu said the new law does, as promised, remove the general exemption to sitting members.

Mauga also wanted the case to continue in order to get a declaratory judgement on whether the previous version of the Act was, as the applicants believe, unconstitutional.

But Mr. Ainuu also said that the case should not continue with submissions because with the law now changed, the submissions would be speaking to old, inactive legislation.

Justice Tafaoimalo said if she finds the amendments to be meaningfully different enough to the consent orders, she will allow Tuala and Papalii to change their application to refer to the new law in order for the case to resume.

“We need some careful analysis to ensure that just because the wording is different doesn’t mean they didn’t deliver on their promise.

“Let’s decide whether those differences are significant enough to warrant a departure from the consent orders that the court issued. 

“Let’s look at that first and then I think it’s very easy to amend the appealing, because the evidence will remain the same, and we can amend the appealing to challenge this new section if that is what we decide.”

Under the amendments passed on Tuesday, both Tuala and Papalii are now fully eligible to contest in the next election, lawyer Fuimaono said.

But pushing to have the case heard in full would ensure the entire contest is recorded, including the fact that the applicants believe the old Electoral Act was unconstitutional.

“The reason why it is important for the record is to record that Parliament did pass provisions that were unconstitutional and that it took the proceedings that were brought to the court to declare those provisions unconstitutional and therefore void, which therefore led to the passing of amendments,” Fuimaono said.

“But that didn’t happen in this case because we reached an agreement before we concluded the case.  

“We will never have such a record of case law which will record that there were unconstitutional provisions […] if the case stops now.”

Among the changes passed by Parliament include the removal of the Electoral Commissioner’s power to disqualify a candidate from standing; a power that has been returned to the Supreme Court.

But its passage was not met without controversy by members of the ruling Human Rights Protection Party (H.R.R.P.).

Former Deputy Prime Minister Fonotoe Lauofo Pierre said an attempt to remove discrimination from the law may have entrenched it by lowering residency requirements for overseas Samoans in light of coronavirus travel restrictions.

“This appears to be favouritism to those stuck overseas and not heeding the three year residence requirement, and what about those that abided by the three year law?,” Fonotoe said.

On Thursday, meanwhile, the Associate Minister for the Ministry of Prime Minister and Cabinet, Peseta Vaifou Tevaga, criticised as "contradictory" an amendment to the Act designed to deal with geographical issues in the law.

The Associate Minister raised eyebrows when he questioned an amendment which would allow a matai who renders service to Leauva’a to contest the Gagaemauga No. 1 seat in Savai’i.

“This is not appropriate for a matai from another village running from a village in Savai’i where he does not render his monotaga (service)," Peseta said.

Despite a special hearing of Parliament being called on the day the changes were passed, the Minister for the Office of the Electoral Commission, Fa’aolesa Katopau Ainu’u, rejected claims the amendments were made as a response to the legal challenge.

"These amendments were not from any court case we have been prepared for a long time before,” Fa’aolesa said, who said refinements to the Act had begun being drafted since April.

But Member of Parliament Faumuina Wayne Fong insisted that Parliament was convened specifically to deal with the issues raised in the court case.

"If there was no court case, these amendments would not be subject before Parliament," he said

Papalii also took issue with Fa’aolesa’s comments.

“The reason this session was held was purely based on this court case, so he was not right,” Papalii said.

“Halfway through the court hearing the Government realised what they were saying was not correct and admitted an oversight, and that is why we ended up negotiating the settlement which had to be incorporated into the amendment. I want to correct him.”