The Samoa Attorney General, Su’a Helena Wallwork Lamb has called the application by the Human Rights Protection Party (HRPP) and candidate Aliimalemanu Alofa Tuuau to activate the 10 percent quota for women parliamentarians as premature.
The Attorney General also said the Electoral Commissioner has not done any unlawful deed as alluded to by HRPP counsel Savalenoa Mareva Betham Annandale when he did not activate the 10 percent after the Head of State’s writ confirming the 51 new Members of Parliament after the August 29 general election.
The Attorney General also stated that the Applicants argument that the Court of Appeal can distinguish Article 44 (1A) and article 52 of the Constitution “is not distinguishable.”
The HRPP’s application invites the Electoral Court to revisit the timing of activating the 10 percent quota for the 6th woman parliamentarian.
She said Article 44 and article 52 of the constitution can be distinguishable with regards to the timing of activation of the 10 percent.
She noted that the Court of Appeal reaffirmed the Electoral Courts ruling in June 2021 that the 10 percent can only be activated after a by-election but also confirmed that they did not consider the “inter-action of article 44 in its entirety with article 52.”
Article 44: Members of the Legislative Assembly – (1A) Subject to this Article, women Members of the Legislative Assembly shall:(a) consist of a minimum of 10 percent of the Members of the Legislative Assembly specified under clause (1) which for the avoidance of doubt is presently 5; and 40 (b) be elected pursuant to clause (1) or become additional Members pursuant to clause (1B), (1D) or (1E). (1B) If, following any general election:
Savalenoa argued that according to article 52, the convention of the legislative assembly after the general election should have all 51 elected MPs confirmed by the Head of States writ including the additional women MPs.
Justice Leiataualesa asked Savalenoa whether the Electoral Court has authority to over-rule a Court of Appeal decision.
Savalenoa did not question the Court of Appeal decision, she however believes if the panel of judges had considered the interaction of 44 and 52, the decision would have come out differently.
Leiataualesa also asked her that if the 10% was activated after the general election and if a woman wins from any by-election after, what happens to the additional woman MP.
Savalenoa cited article 52 and said that the minimum number of six woman must be there when legislative assembly convenes after the general election because of its impact on the legitimacy of parliament.
“What kind of impact,” asked Leiataualesa.
She said that if the Electoral Commissioner does not activate the 10 percent required under article 44, the Legislative Assembly will not compose of all MPs.
Salavalenoa argued that Article 44 speaks of additional woman MP whilst article 52 highlights the need for all MPs to be present at the first sitting of the legislative assembly.
Article 52: Meetings of the Legislative Assembly: The Legislative Assembly shall meet at such times and at such places as the Head of State appoints from time to time in that behalf by notice published in the Samoa Gazette and recorded in the Savali: PROVIDED THAT the Assembly shall meet not later than 45 days after the holding of a general election and at least once in every year thereafter, so that a period of 12 months shall not intervene between the last sitting of the Assembly in one session and the first sitting thereof in the next session.
The Attorney General pointed out that there is no merit in the Applicants claim that the Court of Appeal can distinguished the interaction of Article 44 and Article 52.
She then referred to the June 2021 Electoral Court decision which spelt out the time to trigger the activation of the 10 percent and the reaffirmation by the Court of Appeal.
She said the matter has been visited several times and that article 52 operates independently from article 44 as it specifically speaks of when parliament should convene after 45 days from the date of the general election.
Mauga Precious Chang who represented the Faatuatua I le Atua Samoa ua Tasi (FAST) party calls for a dismissal of the application.
She did not submit much as their argument is similar to that of the Attorney General.
Leiataualesa reserves his decision to be delivered before Christmas.
