Sixth woman M.P. needed but who?

The Appellate Court has ruled that six women should sit in Parliament to meet a constitutionally mandated minimum level of women's representation. 

But the inclusion of another woman M.P. in the Legislative Assembly could be months away until all election results, which include legal challenges to court results and possible by-elections, are finalised.

“Although we have found that 10 per cent means 6 women in Parliament it remains to be seen whether second respondent [Aliimalemanu Alofa Tuuau] will be appointed as an additional member to satisfy the requirement,” the Court concluded in a decision handed down on Wednesday.

Aliimalemanu is the second respondent and was appointed as a sixth woman to the XVII Parliament by the Office of the Electoral Commissioner before that appointment was revoked by the Supreme Court. 

The uncertainty of Aliimalemanu's appointment will leave the Fa'atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party with a 26 to 25 lead in sitting M.P.s over the Human Rights Protection Party (H.R.P.P.) until electoral petitions are resolved by the court in due course. 

“We consider that Article 44 1A [of the constituion] is ambiguous as to the ideas it promotes and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa,” the court ruled. 

“In this case, that means we consider the prevailing measure is a minimum of 10 per cent of women representation which is six women.”

Chief Justice, His Honour Satiu Simativa Perese, Justice Tafaoimalo Leilani Tuala-Warren and Justice Fepuleai Ameperosa Roma presided the matter, which came before the court on Monday this week.

A total of at least six women are involved in election petitions, which are yet to be heard in the Supreme Court. 

If any candidate involved is found to have violated electoral law, a by-election will follow, potentially changing the number of women representatives in the Parliament.

"The participation of women in the Parliament of Samoa has been an exception rather than the norm," the court judgement stated. 

"The words of the [constitutional article] are plain enough – there are to be women members of the Legislative Assembly; a clear and unequivocal constitutional guarantee of women’s participation in the electoral process and Samoa’s democracy. We do not believe that the importance of this declaration can be overstated."

Citing an argument advanced by the New Zealand Queen's Counsel Paul Thomas Rishworth the court found that a literal reading of the constitutional mandate's requirement that the number of women not be allowed to fall below a certain threshold to be particularly compelling. 

“If there is less than 10% then the “minimum” requirement has not been fulfilled," the ruling concluded. 

"The ordinary and plain meaning is that if the minimum requirement, in this case 10% women members of the Legislative Assembly, is not reached then the Constitutional requirement has not been satisfied”

The issue of the interpretation of the mandate had been made less clear by an attached clause that stated that "for the avoidance of doubt" the number of women to be elected under the quota should be five. 

But the judges found that the additional phrase sent a contradictory message to the intended spirit of the 2013 constitutional amendment, namely by setting a ceiling on the number of women who could be elected to Parliament.

"We consider that the Constitution is given its best effect when it promotes human rights and that means in a practical sense that the total of the prescribed number of women is 6," the Judges concluded. 

"It cannot possibly be a prescribed number of 5 women representatives because the threshold of a minimum of 10% would not have been reached. 

"We have a saying in Samoa 'e le togi le moa ae u’u le afa', one should not appear to do something but then hold back in a material respect."

Despite upholding a decision to declare her warrant of election to Parliament void the court commended Aliimalemanu for the vigour  which she had shown in pursuing the matter.

"We commend the Second Appellant’s tenacity in bringing this appeal which champions women’s representation in Parliament," the ruling concluded. 

"Although we have found that 10% means 6 women in Parliament, it remains to be seen whether she will be appointed."

Speaking separately to this newspaper after the judgment, Aliimalemanu said she would be happy to see an additional woman M.P. appointed from any party and she was pleased to have struck a blow for women's representation.

But the two leaders of the major parties took to broadcast completely contradictory sentiments about the meaning of the ruling on Wednesday night.

The caretaker Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, asserted that the ruling had guaranteed the H.R.P.P. 26 M.P.s, or a 50 per cent share of seats in Parliament, meaning neither party would be able to form Government.

That, he claimed, was proof the court intended for his caretaker Government to continue on as "custodians" of power in Samoa.

Fiame Naomi Mataafa, the leader of F.A.S.T., by contrast, said that the ruling had cemented F.A.S.T.'s 26-25 seat majority on the floor of Parliament at least until the conclusion of a possibly long petitions process. 

The validity of a swearing-in ceremony held by 26 F.A.S.T. M.P.s on Monday 24 May but boycotted by the H.R.P.P. and the Head of State is currently the subject of a legal challenge. 

Electoral Commissioner & Anor v FAST Party & Anor by James Robertson on Scribd

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