Patu calls for second election
The former Chief Justice Patu Falefatu Sapolu has called for a snap, second-round of elections as a means of achieving a workable solution to the country’s current stalemate.
In remarks made during an interview with TV1 last Saturday and distributed in an English translation by the Government Press Secretariat on Friday night, the nation’s longest serving Chief Justice made the case for a second national poll.
The former Chief Justice argued that no party could lay claim to a majority in Parliament, thereby prolonging political uncertainty.
“It would have been [best to be] decided by the mandate of the people of Samoa to choose their elected representatives and give certainty as to who would lead the country for the next five years,” he said.
Patu registered to contest the Vaimauga No.2 seat at the April general election under the Human Rights Protection Party (H.R.P.P.) banner, but later withdrew his candidacy.
His withdrawal came after he flew to New Zealand for medical treatment in late September last year. It was announced by village authorities two months before the poll.
Speaking last Saturday the former Chief Justice said that ongoing uncertainty related to legal challenges were the chief reason for holding a snap, second poll.
Patu noted that the Supreme Court was already flooded with election petitions and counter-petitions which could result in an unknown number of by-elections, if candidates are disqualified and found to be in breach of the law.
Combined with the difficulty of waiting for the post-election legal process before ensuring a threshold for women’s representation in Parliament, he suggested that there was too much uncertainty looming over Parliament.
He also questioned whether the process of undergoing by-elections would, in turn, create its own process of petitions and counter-petitions, prolonging national uncertainty.
“The difficulty facing us is that this is to be the process we must now follow, to await the completion of by-elections for only then can we determine any additional women members,” he said.
“So I put this question, what if, after the by-elections there are further petitions lodged to challenge those by-elections and we must go back to court again?
“It could mean uncertainty and instability for Parliament and the decision making processes of our country and that is a troubling.”
Patu also dismissed an argument advanced by the Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) party that Parliament could be convened now when asked directly by an interviewer.
“The answer is no,” he said.
At the start of this month the Court of Appeal ruled that a sixth woman Member of Parliament needed to be appointed to the Legislative Assembly in order to meet a constitutional mandate requiring that no less than 10 per cent of M.P.s are women.
But the woman who was originally appointed to the Parliament by the Office of the Electoral Commission, H.R.P.P.-aligned Ali'imalemanu Alofa Tuuau, had her warrant of election declared void by the court.
The court reasoned that it was impossible to determine how many women needed to sit in Parliament until the full makeup of the Parliament was made certain. Depending on the outcome of by-elections the constitutional provision may not even need to be activated, the court held.
But Patu argued this would spell further uncertainty for the nation’s legislature.
“This determination of the number of additional women members must wait until after the petition hearings and after by-elections are held,” he said,
“Only then can we determine whether there is a need for additional women members or not. If there is a need for additional women members, then how many?
“Therefore, at this time it is uncertain. So it’s difficult or if not impossible for Parliament to convene when the 10 per cent of women members is not finalized with certainty, we must wait until this is determined before Parliament is convened.”
While the post-election controversy on women’s representation centred on whether a six woman needed to be appointed to the 51 seat legislature, Patu canvassed a scenario in which more than one female M.P. would need to be appointed. That could occur if a woman candidate lost an election challenge or legal petition.
“If after the petitions and by-elections there are 4 women elected we will need 2 women to attain 6 to satisfy the 10 per cent,” he said.
“If there are only three then we need to add another 3 women members to satisfy the requirement for 6 members to satisfy the 10 per cent So according to the full complement of Parliament required to convene, it is currently uncertain but is dependent upon the outcome of the petition hearings and the by-elections.”
That state of affairs makes it uncertain as to who or how a new Government will be formed on the floor of Parliament.
(Following an H.R.P.P. Associate Minister’s petition loss today, F.A.S.T. currently enjoys a 26-24 lead over their rivals. That event occurred after Patu made the remarks.)
“So what is the majority at this time?,” he said.
“The answer is, no one knows.”
Patu said the necessary officials to form a functional Parliament could only be voted into office by a party which controlled a majority of seats on the floor of the Legislative Assembly. He said that until the issue of post-election legal challenges was resolved no party could confidently claim a majority and appoint positions such as a Speaker.
“In my respectful view, the word ‘majority of all Members of Parliament’ includes not only the Members of Parliament we currently have but includes new members who will be elected after the hearing of election petitions and holding of by-elections,” he said.
On 24 May, F.A.S.T. held its own ad-hoc swearing in with its 26 elected members at which a Speaker of Parliament was elected by those present.
The ceremony was held in order to stop the violation of a constitutional provision requiring Parliament to sit within 45 days of an election. The H.R.P.P. and the Head of State boycotted the ceremony. Also absent from the ceremony were the Chief Justice and Clerk of the Legislative Assembly. (On the basis of the head of Government’s absence among other reasons, the validity of that ceremony is currently the subject of a legal challenge by F.A.S.T.).
“Therefore it is not possible to appoint a Speaker of the House according to the Constitution,” Patu claimed.
“Then what sort of Parliament will we have? How can it be? Has there ever been a Parliament in the Commonwealth of Parliaments that has operated without a Speaker of the House?”
Patu said that several people had asked him if the nation’s ongoing political situation would be resolved by a second election, something with which he agreed.
“When I hear this wise advice from our traditional elders, it is comforting to hear and maybe they are correct, if we had taken that path that these matters would be concluded and resolved in an amicable way, having given the authority to the people,” he said.
In early May the Head of State, His Highness Tuimalealiifano Vaaletoa Sualauvi II, said he would order the dissolution of Parliament and call for a second election as a means of securing political certainty.
That decision was opposed by F.A.S.T. who queried whether the Head of State had the authority to overrule the results of an election; it was vigorously endorsed by the H.R.P.P.
But only a fortnight later and at the eleventh-hour before the election decree was due to take place, the Supreme Court threw out the Head of State’s order, ostensibly clearing the path for F.A.S.T. for form Government.
Since then the H.R.P.P. has refused to convene Parliament unless it is allowed to be accompanied by an additional M.P., thus negating F.A.S.T.’s lead.
The advice given to the Head of State was, from the outset, “unlawful” the court ruled.
“There is no lawful basis for the Head of State calling for a new election on 21 May 2021,” the Chief Justice His Honour Satiu Simativa Perese said.
He added that the results from the April election “continue to be valid and lawful”.