Party hopping plug "band aid"

A last-minute Electoral Act amendment, requiring a Member of Parliament to hold a by-election if he/she resigns from a political party, has been called a poorly planned "band aid" solution.

The call comes from lawyer, Fuimaono Sarona Ponifasio, whose client’s legal challenge against the Electoral Act 2019 resulted in the urgent Parliament session last week.

 Under the new amendment, Members of Parliament who withdraw or resign from their party before an election cycle is up must vacate their seat, and go to a by election if they want to remain in Parliament. They no longer have the option to stay in the House as an Independent M.P., which former Deputy Prime Minister Fiame Naomi Mata’afa did earlier this month. 

Fuimaono said the amendment is going to have some issues being implemented as the Prime Minister hopes it will be.

“It’s a band aid,” she said.  “If you know what the implications are if you withdraw or resign and you decide to stay in that party, they cannot force you out. You can still say I never withdrew, I never resigned.”

She said the Constitution protects members from being forced out of their party by Parliament alone.

The Supreme Court has to make the final determination on whether a member can keep their seat.

“I think that is a very important protection when it comes to that very provision,” Fuimaono said.

The idea for such an amendment was raised publically a week before the amendment was passed.

On Wednesday last week, Prime Minister Tuilaepa Dr. Sailele Malielegaoi said he wants to block party members from remaining in Parliament if they leave their parties, saying doing so would keep “peace and unity within the party and government.”

He said Parliamentarians ought to return to the people who voted them in to ask for the mandate to stay in the House by way of a vote.

“If you go back and have a by-election and get elected once again, that means the constituency has given you their blessing.”

Accused of trying to shore up the Human Rights Protection Party’s position ahead of the election, Tuilaepa said the intention of the law is to make M.P.s more “honest.”

In a statement distributed by the Government Press Secretariat on Friday, Tuilaepa said the “anti-party hopping law” is about maintaining a stable Government, not only for the people of Samoa but also for the benefit of investors and donors. 

“If 30 dishonest M.P.s change their party affiliation 20 times during a five-year term, we can have 20 changes of Government in five years creating instability in Government,” he said. “The H.R.P.P. can never remain the Government forever,” he continued.

“It can be replaced any time should the people of Samoa so decide, and a successor Government will benefit from the farsighted reforms executed by the H.R.P.P.”

Mysteriously, he ended his statement by saying: “Samoa is a small country and nothing remains secret for long.”

Fuimaono said that technical issues around how an amendment to a law, or a new law, should be implemented ought to be resolved well before it is passed into legislation.

“Any good law is based on sound public policies and to have sound public policies you need to identify what the problems are, develop policies, consult relevant stakeholders, review the policies before they are finalised.

“It is those well prepared and sound policies you use to develop laws. 

“When you don’t go through that process, when you bring in changes to the law based on how you feel at any one time you will encounter problems. That is how matters end up in court and that is where lawyers come in.”

Earlier this month, Fuimaono and lawyer Mauga Precious Chang represented matai who believed the Electoral Act 2019 privileged incumbent Parliamentarians through a broad exemption over the monotaga requirement for eligible election contestants.  

During the case, Electoral Commissioner Faimalomatumua Mathew Lemisio was asked to produce policy documents that led to the troublesome section in the Act, and he could not.

When eventually he admitted that the provision did not accurately reflect the intention of the law, which was to give a limited exemption to certain affected M.P.s not all of them, the Government agreed to redraft the Act leading to last week’s Parliament sitting.

“During our case they didn’t have any policies, it was clear,” Fuimaono said.

“That seems to be how they do things these days. There are no policies.”

Another last-minute change to the Electoral Act further defines which matai title a given person may use to run in the Election, which is the matai title they used to serve their three years of monotaga required to be eligible.

Previously, the relationship between the monotaga and the title was not explicitly stated in the law. The issue had been raised during Fuimaono and Mauga’s court case but had not been explored in depth.

“It obviously influenced them to change [the law],” Fuimaono said.

She said the amendment has not been tested thoroughly enough to understand the full implications of how the change affects Samoan culture.

“[For example,] someone who holds a taule’ale’a title, an oratory title, and has held that title for three years and rendered monotaga for three years under that oratory title, and at some point a year before registration closes, they are bestowed a paramount chief title. 

“So when they want to run for elections, and they want to use that paramount title – and it makes sense, why would you want to use a title that is not paramount when you have that title - the only problem is they haven’t rendered their three-year monotaga under that paramount title.”

Fuimaono said bringing this change in so near to the registration period (October 13 to 23) contradicts the principles of good governance and the rule of law. 

Tuilaepa’s full statement, and the question posed to him by the Government newspaper Savali:

Savali: The Anti-Party hopping Law requiring MPs who are members of one party leaving and going to another party is seen as an attempt to ensure continuity of HRPP rule. What do you think?

Tuilaepa: On the contrary, the Anti-Party Hopping Law tries to ensure stable Government. Party hoppers must vacate their seats and go back and ask for their political districts’ permission and support for their change of party affiliation through a bi-election. 

Very simple – the law tries to make MPs more honest. If 30 dishonest MPs change their party affiliation 20 times during a 5 year term, we can have 20 changes of Government in 5 years creating instability in Government. No investor would ever be inclined to invest in an unsafe environment and donors will be extra cautious to help a country run by 30 unprincipled MPs who care only about their self-interest. 

And the HRPP can never remain the Government forever. It can be replaced any time should the people of Samoa so decide. And a successor Government will benefit from the farsighted reforms executed by the HRPP.

The loophole in the present law where a party hopper may choose to become an Independent deliberately to avoid a bi-election is now closed following the recent amendment approved by Parliament this week. Samoa is a small country and nothing remains secret for long."

The amendments are limited to sections (a) and (b). The old Electoral Act 2019 was as follows:

Vacation of a seat in the Legislative Assembly:

(1) A seat of a Member becomes vacant if the events specified in Article 46(2) (a), (b), (c) of the Constitution or subsection (2) occur.

(2) A seat of a Member becomes vacant if:

(a) a Member who becomes a Member according to section 140, and that Member resigns from a political Party to join another political Party during the Parliamentary term; or

(b) a Member does not comply with section 140(4)

Note: 140(4) reads: "A Member elected as an independent Member who takes the oath of allegiance as an independent Member must remain as an independent Member for the Parliamentary term."

The amended Electoral Act now reads:

Vacation of a seat in the Legislative Assembly:

(1) A seat of a Member becomes vacant if the events specified in Article 46(2) (a), (b), (c) of the Constitution or subsection (2) occur.

(2) A seat of a Member becomes vacant if:

(a) A Member becomes a Member of a political party according to section 140(1), 140(2) or 140(3)(a) and that Member resigns or withdraws from or changes his or her political party during the  parliamentary term; or 

(b) a Member becomes an independent Member according to section 140(3)(b) or 140(4) and that Member joins a political party during the Parliamentary term; or”

(c) on 3 consecutive sitting days the Member fails, without permission of the Speaker, to attend the sitting of the Legislative Assembly in the manner and for the period prescribed under the Standing Orders; or

(d) a Member takes an oath or makes a declaration or acknowledgement of allegiance or adherence to a foreign country; or

(e) he or she renounces his or her Samoan citizenship; or

(f) he or she is adjudged a bankrupt; or

(g) he or she is -

(i) convicted in Samoa or in another country of a crime punishable by death; or

(ii) convicted in Samoa or in another country of a crime punishable by imprisonment for a term of 4 years or more; or

(iii) has been convicted in Samoa of a corrupt practice; or

(iv) reported by the Supreme Court in its report on the trial of an election petition to have been proven guilty of a corrupt practice; or,

(h) he or she becomes a public servant; or

(i) on an election petition the Court declares his or her election void; or

(j) he or she becomes of unsound mind and subject to an order of medical custody made under the Mental Health Act 2007; or

(k) if while he or she is a Member he or she is guilty of conduct unbecoming a Member;

(l) being a Member representing a constituency he or she ceases to be qualified to be a candidate to represent that constituency; or

(m) he or she is proven to the satisfaction of a Committee of the Legislative Assembly to have acted for commission or other reward as agent on behalf of the owner or for any other person having an interest in any land for the purpose of securing the purchase or acquisition of that land by the Government;

(n) the Member holds himself or herself out during the Parliamentary term as representing or being a Member of -

(i) a Party or organisation that has political aims and is desirous of taking part in an election where such Party or organisation is not registered as a political Party under this Act; or

(ii) a registered political Party other than the registered political Party of which he or she is a Member when he or she takes the oath of allegiance.