The presiding Judges in the case, Justice Vui Clarence Nelson, Justice Niava Mata Tuatagaloa & Justice Lesatele Rapi Vaai. - Radio Samoa
The presiding Judges in the case, Justice Vui Clarence Nelson, Justice Niava Mata Tuatagaloa & Justice Lesatele Rapi Vaai. Photo: Talamua online

Faamanino e le Faamasino Sili le taua o le galuega a le Faamasinoga

I se pepa o faamatalaga I luga o le upega tafailagi a le Malo o Samoa na taua ai e le Faamasino Sili ia Satiu Simativa Perese o le galuega faatino a le Faamasinoga o le mautinoa lea o loo faia le mea sa’o e aunoa ma se tualga e faapopole ai le galuega pe faia foi I se auala faaalatua.

Taua e le Faamasino Sili I lana pepa o faamatalaga I le vaiaso nei e tutoatasi lava le Matagaluega o Faamasinoga I le faatinoga o le latou galuega ma ua maea ona faatautō foi i latou i luma o le tulafono i ā latou tiute fai ma o le manulauti lava lea o le latou auaunaga ia faia faaiuga talafeagai ma le amiotonu aua se Samoa saogalemu ma faavae i le Atua.

Na molimauina e Ofisa faasalalau i Samoa i le aso ananafi le taua o le galuega o loo feagai nei ma le faamasinoga e ala i iloiloina lelei o le faauigaiga o le vaega 44 (1A) o le teuteuga o le faavae o Samoa”

Na fesiligia e le afioga ia Vui le Loia o loo tulai mo le Ofisa o faigapalota ia Fuimaono Sefo Ainuu  poo fea tonu i le faavae o loo faamatala mai ai,  poo ai tonu e faia le faaiuga o le faaopopo ai o le nofoa o tamaitai I le Palemene.

O faamaumauga o nei fetufaaiga I totonu o le potu faamasino I le aso ananafi o le a tuuina atu I le gagana peretania.

The exchange between the 3 presiding Judges and Fuimaono:
Vui – “You’re asking to strike out their (FAST) application as unconstitutional and illegal, so therefore you must be arguing that the appointment is constitutional and legal?”

Fuimaono –  “Yes Your Honour”

Vui –  “And according to our understanding of the process that was followed, the appointment was made under the warrant signed by the Head of State.”

Fuimaono – “That’s correct Your Honour.”

Vui – “Pursuant to what authority was that warrant issued?”

Fuimaono – “The process of appointing a member follows the same process to appoint the MPs on the polling day.”

Vui – “But this was not an MP elected at the polling booth, but an MP appointed pursuant to a special Constitutional provision, so you can’t say the method used for one, is the method that applies to another unless somewhere in the law says that.”

Vui pointed out that when the applicant’s stance is a writ of a Judiciary review and the HOS made the appointment, he thought that one can’t issue a judiciary review on an appointment made by the HOS.

“It led me to the issue of who makes the appointment and under what authority it is made,” Vui asked.

Fuimaono was quick to point out Article 44 (4) of the Constitution

“It does not say in the procedure but, it does offer guidance as to how a member appointed under Article 44(1A) is treated,” said Fuimaono.

“Article 44(4) – a member of the Legislative Assembly including additional members shall be known as Members of Parliament.”

However, Vui pointed out that Article 44 (4) says “shall be known as a MP’ but does not say the additional member shall be appointed by the HOS unlike elected members as perceived in the Electoral Act.

He further pointed out Section 84 of the Electoral Act which provides the procedure for the appointment of elected members.

Section 84 : “With all the valid paper dealt with……. the Commissioner having ascertained the total numbers of votes received by any candidates, must immediately declare the result of the poll by giving public notices and reporting the results to the HOS.”

“It’s pretty clear and Section 82 says on receiving the report from the Electoral Commissioner, the HOS shall then by warrant declare the successful candidate elected,” he said.

“That applies to candidates who have been elected during the general election, and if I understand this, the second respondent (Ali’imalemanu) was not appointed because she won at the polls, but as an additional member pursuant to Article 44.”

The appointment without legal authority

“Where is the provision whereby the appointment of an additional member is conferred by the Head of State?” asked Vui.

Fuimaono cited the rationale of Article 44 (1A)

He said the purpose of Article 44(1A) is to assure there is 10% of women members but Vui intervened and said there should be a provision highlighting that as the provision on elected members.

Fuimaono continued to argue that the additional member will be treated as a Parliament member and refer to article 44(4) which speaks on that intention.

“Yes, but treated and appointed are two different things,” Vui countered.

“Where is the legal authority that makes this appointment valid?” he asked.

Fuimaono informed the Court that Article 44(1A) was used in 2016. But Vui replied that this was the first time this has been challenged before the Court to be interpreted.

“If there is no provision, where does that leave this appointment?” he asked.

Again Fuimaono pointed out Article 44 (4).

“There is no legal authority to say we cannot treat an additional member the same as other members, and we are supported by article 44 (4) that says, you must treat additional members as MP,” said Fuimaono.

Justice Lesatele Rapi Vaai informed Fuimaono that the issue discussed is the execution of the warrant and asked whose authority it was executed.

“It is the Electoral Commissioner’s decision that he followed the same procedure used to appoint an MP,” said Fuimaono.

“Based on what?” Lesa asked.

Fuimaono referred to section 4 of the Declaratory Judgement Act 1988 and Lesatele reminded him that the focus was on the interpretation of Article 44 (1A) and some of his arguments were not relevant to 44 (1A).

(source)

Ua atagia mai ai i, le tutoatasi o le Faamasinoga I le faatinoga o ana galuega ma o se tiute aupito sili ona taua i nei faamasino,  afioga Vui Clarence Nelson, afioga Lesātele Rapi Vaai,  afioga ia Mata Keli Tuatagaloa ma le taitaiga a le Faamasino Sili, Satiu Simativa Perese o le puipuia lea o le agaga tonu o le faavae e faatautaia ai le lumanai o se faigamalo a Samoa.

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