Legal Challenge Against the Electoral Act Amendment may Continue

The applicants Papali’i Tavita Moala (right) election candidate Afemata Palusalue Fa’apo 11 and Tuala Iosefo Ponifasio (back to camera).

By Lagi Keresoma

APIA, SAMOA: The legal challenge that prompted a special sitting of Parliament last week to pass certain amendments to the Electoral Act 2019, may continue in the Supreme Court.

Last month, the applicants Papali’i Tavita Moala and Tuala Iosefo Ponifasio challenged Section 156 of the Electoral Act 2019 on the basis that it ws “discriminatory, unfair and unconstitutional.”

The Act and outcome of the legal challenge were to have implications on the eligibility of the candidates for the 2021 general elections with registration opening between 12 and 23 October. Counsels then came to an agreement but waited until the amendments were passed whether it reflected the essence of what they agreed to.

When the matter was called last Friday, counsel Mauga Precious Chang said there were differences between what they agreed to and the amendment passed by parliament last Tuesday.

Supreme Court Justice, Tafaoimalo Leilani Tuala Warren then gave counsels for the Applicants, Respondents and the Court the weekend to analyse the provisions passed and how they differ from the Electoral Act 2019.

Counsel Mauga Precious Chang called for a continuation of the court hearing, but after deliberations, all sides were given the weekend to analyse the documents before the matter resumes today.

The Challenge
The applicants Papalii Tavita Moala and Tuala Iosefo Ponifasio challenged section 156 of the Electoral Act 2019 on the basis that it ws “discriminatory, unfair and unconstitutional.”

The section exempts sitting members of Parliament from the 3 years requirement of a monotaga or service to the village.

The Attorney General represented the Office of the Electoral Commissioner who was the Respondent, while Fuimaono Sarona Ponifasio represented Tuala and Mauga Precious Chang for Papalii Moala.

In the time of the court hearing, both parties finally came to an agreement to amend some of the provisions in the Act.

Lawyer Mauga Precious Chang for Papali’i Tavita Moala with lawyers representing the Electoral Commissioner’s Office

Justice Tafaomalo then made an order that the Applicants withdraw their application subject to the Respondent carrying out the amendment to the relevant provision of the Electoral Act 2019.

The Attorney General and her team then worked on the changes to the Act and according to Mauga, they presented them directly to Parliament without discussing with them – the Applicant.

Those changes were passed in Parliament last Tuesday.

Amendments do not reflect agreement
In Court last Friday, Mauga said the amendments passed in Parliament last Tuesday do not reflect what both sides agreed on.

She said they were shocked when they read the copy of the amendment and they will discuss further their stance on the issue today.

Fuimaono said they need to compare the new and the old amendments.

“There are some variations between the amendment we agreed to and the one passed and the key question now is whether these variations are fatal to our clients,” she said.

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