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Why Electoral law legal challenge significant

A recent legal challenge against the Electoral Act, and the process with which it was handled between Parliament and the Judiciary, proved the importance of the separation of powers, in allowing people to exercise their Constitutional rights in a democracy.

It's freedom that could come under threat with three bills before Parliament, proposing monumental changes to the Judiciary and making the Land and Titles Court autonomous, the President of the Samoa Law Society, Leiataualesa Komisi Koria, believes.

The legal challenge against the Electoral Act 2019 was brought by Gagaemauga No. I candidate, Tuala Iosefo Ponifasio, and Sagaga I candidate, Papali'i Moala Tavita. The applicants claimed the Electoral Act 2019 was unconstitutional and discriminatory by way of giving current Members of Parliament exemption from the monotaga requirement.

When the matter was first raised in Court, an agreement was reached between the parties that allowed the Government to redraft the law in question. The changes resulted in an urgent session of Parliament where they were discussed and approved.

A few days later, however, the matter was back in Court again with Tuala and Papali'i claiming they were not satisfied with the changes.

But their claim was withdrawn earlier this week with their right to contest in next year's General Election guaranteed.

The President of the Law Society said the case held very special significance.

"Two of the issues we have raised in respect of these bills is the effect that these bills will have on, one, the ability of the people to enforce and enjoy their Constitutional rights, and the second, the effect it will have on the independence of the judiciary," Leaiataua said.

"So those two things were at the heart of the electoral challenge because what those people were doing was actually enforcing their rights, to not be discriminated against which is protected in the Constitution.

"And what they needed in order to enforce that right was an independent judge and an independent judiciary that could review the law, and say, this is wrong and this is going against the Constitution, so that case is very very important."

Leiataualesa stressed that not only is the challenge significant for the parties involved but also for all the people of Samoa for future challenges.

"[This is] because it gives us a decision that the Court has actually agreed that the electoral amendments were unconstitutional," he said.

"And even though there wasn't actually a decision that was handed down, the proceedings were well covered and what was said in Court were reported on, and we're able to say what the judge's view was about the case.

"So that was a really important one. And it also gives us a template or precedence in Samoa; challenging laws that we feel are unconstitutional."


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