Electoral Commissioner’s Powers to Accept or Disqualify Election Candidates Probed

Lawyer Mauga Precious Chang consulting intending election candidates during a court recess

By Lagi Keresoma

APIA, SAMOA – 04 SEPTEMBER 2020: Following lawyers meeting in the Judge’s Chambers yesterday and this morning, the case has been postponed to 2 pm today as the Attorney General consults the government before the Judge gives her decision.

But yesterday, the powers vested in the Electoral Commissioner to accept or disqualify a candidate for next year’s general election was questioned in Court yesterday.

In the Electoral Act 2020, the Commissioner is given the power to determine whether to accept or disqualify a candidate. But according to the petitioners in the current court challenge before the Supreme Court, this is unconstitutional.

One of the petitioners Tuala Iosefo Ponifasio said the Commissioner now takes over the role of the Court in interpreting the law.

Other petitioners, Papalii Panoa Moala Tavita and Feagaimalii Toomalatai support Tuala’s argument.

Counsel for Tuala, Fuimaono Sarona Ponifasio questioned the basis of the Electoral Commissioner’s decision in either accepting or disqualifying a candidate.

The Electoral Commissioner Faimalōmatumua Mathew Lemision said that there are requirements that must be satisfied by candidates in their nomination papers before submitting them.

When a nomination form is submitted, the Commissioner accepts it.

“I have no right to decline a nomination form because under the law I must accept it,” said Faimalōmatumua.

“But it is only after the nomination period and after checking if all requirements are met that the Commissioner then has to make a decision whether to allow the candidate to run  or disqualify him/her,” he explained.

But these are all based on satisfying all requirements, said Faimalōmatumua.

Some of the high chiefs and intending candidates for the 2021 general election who are challenging the specific section of the Electoral Act that they argue is unfair and discriminatory.

The religious monotaga

In the old Electoral Act, services to the church and village – monotaga were both accepted but the new Act removed the church monotaga and is no longer a qualification requirement for candidates.

This prompted Papali’i and other intending candidates to file a case before the Court saying the Act was “unfair, unconstitutional and discriminatory.”

Attorney General Mareva Betham-Annandale representing the Office of the Electoral Commission asked Papali’i if he had already registered as a candidate.

“No, because the registration period is in October so how can I register when it is yet to open,” responded Papali’i.

The AG again asked if Papali’i’s lawyer, Mauga Precious Chang explained to him the process of getting registered and all requirements needed?

“Yes and I know the process,” said Papali’i.

The AG pointed out to Papalii that if he understood the process and the fact that the registration for candidates has not yet opened, then how did he reach the conclusion that he was not qualified as a candidate?

“Because one of the requirements for candidates is proof that he/she has rendered a monotaga within 3 years,” Papali’i responded.

Papali’i also pointed out that he is banned from the village of Faleula where he hopes to compete from.

He pointed out to the AG that his difficulty is that he cannot render a monotaga when he is banned and the Alii ma Faipule of Faleula don’t accept his monotaga.

The AG however pushed further with the point of a court case when the Commissioner has not yet made any decision.

“I know the law and the requirements and you don’t need a decision from the Commissioner at this point of time. That decision will be weighed by the Commissioner once you file your registration as a candidate, and that is the point,” said Papali’i.

He said his opposition will apply to disqualify him on the basis that he has not rendered a monotaga as the electoral law requires.

The AG again questioned why they are going through this legal matter.

“Because section 156 of the Act is unconstitutional, discriminatory and wrong and that is the real issue here. Everyone must be (treated) the same,” said Papalii.

Following lawyers meeting in the Judge’s Chambers yesterday and this morning, the case has been postponed to 2 pm today as the AGs office consult the government before the Judge gives her decision.

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