Aloaina v Ah Sam [2001] WSSC 17 (14 May 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963.

AND

IN THE MATTER concerning the election of a Member of Parliament
for the Territorial Constituency of Salega.

BETWEEN

LEILUA FAALII ALOAINA
of Alamagoto in Samoa, a candidate for election.
Petitioner

AND

TAPUA’I TOESE AH SAM
of Sinamoga, a Candidate for Election.
First Respondent

AND

THE CHIEF ELECTORAL OFFICER
Second Respondent

AND

THE REGISTRAR OF VOTERS
Third Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Hearing: 30 April, 1 May 2001
Judgment: 14 May 2001

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

Facts

The facts of this case were undisputed and may be stated as follows. On 5 April 2000 the first respondent was registered under his ‘taulealea’ name Toese Ah Sam in the electoral roll for the territorial constituency of Salega as he was not the holder of a registered matai title at that time. He was issued with a certificate of identification (ID) number E96450. When the electoral rolls for the 2001 general elections closed on 19 January 2001, the first respondent’s name was still registered on the electoral roll for the territorial constituency of Salega under his ‘taulealea’ name of Toese Ah Sam. Then on 5 February the first respondent was registered as the holder of the matai title Tapuai in the office of the Land and Titles Court. The matai title Tapuai is from the village of Sagone in the Salega constituency.

On 15 February, the first respondent submitted to the Chief Electoral Officer, the second respondent, a nomination form as a candidate for election in the Salega constituency in the up-coming general elections to be held on 2 March. He was informed by the Chief Electoral Officer to come back the following day as she had to discuss his case with the Office of the Attorney-General. When he saw the Chief Electoral Officer again on the following day, his nomination form was accepted under his matai title Tapuai which was registered at the office of the Land and Titles Court on 5 February. The significance of the first respondent’s matai title is because under the provisions of the Electoral Act 1963, only matais are qualified to run as election candidates in a territorial constituency, non-matais are not so qualified. One of the consequences of this was that while the first respondent’s name appeared on the electoral roll for the Salega constituency as Toese Ah Sam, his ‘taulealea’ or non-matai name, his name on the list of election candidates for the Salega constituency appeared as Tapuai Toese Ah Sam. The first respondent’s newly acquired registered matai title could not be entered on the electoral roll for Salega as all the rolls had closed on 19 January. Another consequence was that the first respondent could not vote at the general elections under his matai title by which he was running as a candidate, but had to vote under his ‘taulealea’ name.

The official results of the general elections held on 2 March were declared by the Chief Electoral Officer on 12 March by public notice in the Gazette. The official results of valid votes for the territorial constituency of Salega were as follows:

Leilua Faalii Aloaina 765

Leilua Manuao... 909

Tapuai Toese Ah Sam 955

Toomata Alapati 744

Total number of formal votes 3,373

Tapuai Toese Ah Sam, the first respondent, and Leilua Manuao were accordingly declared elected as Members of Parliament as there are two Members of Parliament to be elected from the territorial constituency of Salega.

On 19 March, Leilua Faalii Aloaina, who polled the third highest number of votes in this constituency filed an election petition seeking a declaration to void the first respondent’s election on the ground he was not qualified to run as a candidate in the general elections in terms of s.5(1) of the Act. The Chief Electoral Officer is cited in the petition as second respondent and the Registrar of Electors and Voters as third respondent. On 2 April, the first respondent filed a counter petition against the petitioner making allegations of electoral bribery claimed to have been committed by someone said to have been acting as an election agent for the petitioner and for whose actions the petitioner should be held vicariously liable. The petitioner responded by denying those allegations and by making allegations of electoral bribery against the first respondent himself. At the start of the hearing of these proceedings, counsel for the first respondent sought to withdraw the counter petition and counsel for the petitioner told the Court the petitioner will not proceed with his allegations of electoral bribery against the first respondent if the counter petition was withdrawn. The Court was therefore left to deal only with the question of whether the first respondent was qualified to run as a candidate in the elections.

Issues

The real issue for determination in this case is whether in terms of s.5(1) of the Electoral Act 1963, the first respondent was qualified to run as a candidate in the 2001 general elections given that he was not the holder of a registered matai title when the electoral rolls for the general elections closed on 19 January and he was registered at the close of the rolls under his ‘taulealea’ or non-matai name.

Section 5(1) and (2) which are the relevant provisions state:

"(1) Subject to the provisions of the Constitution and of this Act, any person who is registered as an elector of any constituency is the holder of a certificate of identity pursuant to section 135A of that Act and is the holder of a matai title is qualified to be a candidate and to be elected as a Member of Parliament for that constituency, and any person who is registered as a voter on the individual voters roll is qualified to be a candidate and to be elected as a Member of Parliament representing the individual voters, if in either case, as required by Article 45 of the Constitution, he –

(a) is a citizen of Samoa; and

(b) is not disqualified under the provisions of the Constitution or of any Act.

(2) Any other person shall be disqualified for being a candidate for, or being elected as a Member of Parliament".

It is thus clear that s.5(1) provides the qualifications a person must have in order to be able to run as an election candidate in a territorial constituency and in order to be able to run as an election candidate for the individual voters. Any other person will be disqualified from running as an election candidate by reason of s.5(2). The remaining provisions of s.5 are not material to the question for determination in this case.

The words of s.5(1) which are the subject of argument and conflicting interpretations in this case are the words:

"any person who is registered as an elector of any constituency is the holder of a certificate of identity pursuant to section 135A of that Act and is the holder of a matai title is qualified to be a candidate and to be elected as a Member of Parliament for that constituency".

Essentially the interpretation put forward by counsel for the petitioner is that the words "any person who is registered as an elector of any constituency" must mean any person who is registered as a matai elector of a constituency so that only a person whose name appears on the electoral roll for a constituency as a matai elector is qualified as an election candidate for that constituency. If at the time the electoral roll for a constituency is closed for an election a person does not have his name on the roll as a matai elector, then that person is not qualified to run as an election candidate. This interpretation was founded on two grounds. The first ground is that in every election up to 1990, the words "any person who is registered as an elector of any constituency" used in s.5(1) had always been taken to mean "matai electors" as only matais were at that time qualified to vote at an election. Non-matais were not eligible to vote except those persons whose names appear on the individual voters roll. The second ground is that in the declaration form to be completed by every prospective election candidate for a territorial constituency under s.5 of the Act as required by regulation 2 of the Electoral Regulations 2001, the first matter to be declared by a prospective election candidate is that he or she is a registered matai elector as shown on the electoral roll for the constituency in which he or she proposes to run as an election candidate. The argument for the petitioner then goes on to say that as the first respondent’s name appeared as a non-matai on the roll for the Salega constituency when the electoral rolls closed on 19 January for the 2001 general elections to be held on 2 March, he was not qualified to run as an election candidate for only those persons whose names appear as matai electors on the rolls before they closed were qualified to become election candidates. It follows that when the first respondent subsequently acquired a registered matai title on 5 February and submitted an election candidate’s nomination form to the Chief Electoral Officer on 15 February, it was too late for him to qualify as an election candidate as the rolls had closed on 19 January and he could not enter his matai title on the roll for the Salega constituency. Consequently, the first respondent’s nomination as an election candidate should not have been accepted by the Chief Electoral Officer.

Counsel for the second and third respondents on the other hand submitted that the proper approach to be adopted in construing the relevant words of s.5(1) is the literal approach. On that approach, it should be clear that s.5(1) provides three separate and distinct qualifications for a person to be an election candidate. These three qualifications are that he must be registered as an elector of a constituency, he must be the holder of a certificate of identity pursuant to s.135A, and he must be the holder of a matai title. In this case the first respondent meets all three qualifications. He was registered an elector, though a non-matai elector, on the electoral roll for the Salega constituency before it closed on 19 January; he was the holder of a certificate of identity pursuant to s.135A; and he was the holder of a registered matai title as of 5 February. It was therefore proper for the Chief Electoral Officer to accept the first respondent’s nomination as an election candidate for the Salega constituency which nomination was lodged on 15 February before the close of nominations. There were ancillary issues raised in the submissions by counsel for the second and third respondents and which will be referred to in the course of this judgment but the essence of the argument by counsel is as set out above.

When the Court is asked to interpret a statutory provision in relation to a set of facts, its task is to ascertain the meaning the legislature intended to convey in that provision. A number of assumptions and approaches are available to the Court in the performance of the task of statutory interpretation. One such approach is the literal approach which was relied on by counsel for the second and third respondents. As a first step in this case in ascertaining the meaning the legislature intended s.5(1) of the Act to convey, one should understand the nature of the Act relied upon by counsel. It is the Reprinted Electoral Act 1963 with amendments incorporated. The Act was reprinted on 7 November 2000. There has been no other amendment to the Act since that date. A reprinted Act is not an Act approved by Parliament. It is the work of someone employed by the Government usually, but not always, a parliamentary counsel, whereby amendments are incorporated into the principal Act for convenience of use.

The nature and purpose of a reprinted legislation may be best understood from two passages in Statutory Interpretation in Australia (1996) 4^th edition by Pearce and Geddes which is the leading text in Australia on the subject of the interpretation of statutes. At paragraph 1.12 of the text, the learned authors state:

"In Australia, consolidation as a means of presenting legislation in a more usable form has been largely superseded by the process of reprinting Acts. Amending Acts in all Australian jurisdictions are drafted in what is termed the textual style as distinct from the referential style. This enables the amendments to be ‘slotted in’ to the principal or original Act to produce a readable text. All states and the Commonwealth have empowered appropriate bodies to produce versions of principal Acts incorporating all amending Acts. Unlike consolidating Acts, these reprinted or incorporated Acts are not passed by the Parliament but are the work of a government officer acting with a view to achieving the same effect as a consolidating Act. But one important difference between the two types of legislation must be borne in mind. If a mistake should be made in a consolidating Act, the Court is bound by the text of the Act as it has been passed by the Parliament. If a mistake should be made in a reprinted or incorporated Act, the Court must ignore the text of that Act and look to the original Acts to see what it was the legislature said."

At paragraph 8.5 of their text, the learned authors go on to say:

"As mentioned in [1.12], a consolidation of Acts in Australia is not a common practice. The more usual procedure is for legislation to be reprinted in a form in which the original Act has incorporated into it the amendments made to it after its initial enactment. The production of this text is usually carried out pursuant to statutory authority but the text itself has no standing as it is not approved by the Parliament."

On the interpretation of a reprinted legislation, the learned authors then refer to O’Neil v O’Connell [1946] HCA 59; (1946) 72 CLR 101 where Dixon J said at p.122:

"Exclusive reliance upon the reprint of regulations as amended made pursuant to s.6A(1) of the Rules Publications Act 1903 sometimes, in a matter of interpretation, deprives the Court of the advantage of seeing how the regulations were developed by amendment and why the amendments were made. Strictly speaking, s.6A (1) does no more than authorize the printing in a conglutinated form of regulations made as separate pieces of subordinate legislation. It does not relieve the Court of the duty of construing the regulations on the footing that they do consist of separate legislative acts. It is not often that there is either need of or advantage in looking at the more authentic materials from which the Government Printer has reconstructed his convenient and perhaps more intelligible text. But this case happens, I think, to be such a one".

Reference has been made to what is said about the status, purpose and interpretation of a reprinted legislation in Statutory Interpretation in Australia (1996) 4^th edition by Pearce and Geddes because the Act on which all counsel were relying for their arguments in this case is a reprinted Act. It is therefore important to understand what such an Act means and how it may be interpreted for the purpose of ascertaining the meaning the legislature is seeking to convey in a particular provision. Even though the approach contained in the passage cited from the judgment of Dixon J in O’Neil v O’Connell [1946] HCA 59; (1946) 72 CLR 101 relates to a set of reprinted regulations, there is no sound reason why the same approach cannot be applied to the interpretation of a reprinted Act in an appropriate case. The Court in interpreting a provision in a reprinted Act may look at the principal Act and the actual amending legislations in order to see how a provision in a reprinted Act has been developed by amendments and why the amendments were made. The legislative history of a statutory provision can, of course, be a useful aid to the understanding and interpretation of such a provision.

With what has been said in mind, the Court now turns again to s.5(1) and how it has been developed by amendments. A copy of the original of the principal Act was not available to the Court and the researches of counsel could not produce a copy of the original principal Act. This is rather unfortunate given the significance of the Electoral Act 1963. Be that as it may, the Court is able to take judicial notice of the fact that since Samoa gained independence in 1962 and the Electoral Act 1963 was enacted up to the introduction of universal suffrage in 1990, only matais were eligible to vote in elections for territorial constituencies and only matais were qualified to run as candidates in such elections. This means that only matais were eligible to have their names registered as electors on the electoral rolls for the territorial constituencies. We assume from this that it was from these matai electors whose names appeared on the electoral rolls that election candidates were nominated for territorial constituencies during the period 1963 up to 1972. Election candidates for the individual voters were nominated from those persons who were registered on the individual voters roll. Then in 1972 pursuant to s.3(1) of the Reprint of Statutes Act 1972 the words:

"any person who is registered as an elector of any constituency"

were inserted in s.5(1) of the Act so that it reads as follows:

"(1) Subject to the provisions of the Constitution and of this Act, [any person who is registered as an elector of any constituency] is qualified to be a candidate and to be elected as a Member of Parliament for that constituency, and any person who is registered as a voter on the individual voters roll is qualified to be a candidate and to be elected as a Member of Parliament representing the individual voters, if in either case, as required by Article 45 of the Constitution be -

(a) is a citizen of Samoa; and

(b) is not disqualified under the provisions of the Constitution or of any Act."

Section 5(2) as it stood in 1972 provides:

"Any other person shall be disqualified for being a candidate for, or being elected as a Member of Parliament".

As it appears from the 1978 Reprint of The Statutes of Western Samoa 1920 – 1977, volume 2, that was how s.5(1) and (2) stood in 1972 up to the date of the 1978 Reprint which was 1 January 1978. There were no further amendments made to those provisions during that time. As only matais were qualified at that time to be registered as electors for a territorial constituency in terms of s.16 of the Act, a combined reading of s.5(1) and s.16 would show that from 1972 to 1978 only matais who were registered on the electoral rolls for the territorial constituencies were qualified to be nominated as election candidates in those constituencies. This has also been understood to be the position since the enactment of the Electoral Act 1963 up to 1972 even though a copy of the original principal Act could not be made available to the Court. From 1978 to 1990 there was no further amendment made to s.5(1) so that s.5(1) was always understood and construed to mean that only matais whose names were registered on the electoral rolls for the territorial constituencies were qualified to be nominated as election candidates.

In 1990 things changed when universal suffrage was introduced into Samoa. No longer was the suffrage in the territorial constituencies limited to matais. In the Electoral Amendment Bill 1990 by which the government of the day sought to introduce universal suffrage, a number of amendments were put forward in the Bill to implement and accommodate universal suffrage into the principal Act. From the record of the parliamentary debates on the bill, it is clear from the statements made by the then Prime Minister at the introduction and during the parliamentary debates on the bill that all that the government was concerned with was to implement universal suffrage by legislative enactment. There was no mention or discussion of the qualifications for election candidates. That matter was clearly not in the minds of legislature. All the discussion and debates during the three readings of the bill were focused on universal suffrage. It is against that background that the provisions of the bill as finally enacted into the Electoral Amendment Act 1990 should be viewed.

Section 4 of the Electoral Amendment Act 1990, which is one of the relevant provisions to this case, provides:

"Subsection (1) of section 5 of the principal Act is amended by inserting immediately after the word ‘constituency’ where that word first occurs, the words ‘and is the holder of a matai title’".

Section 5 of the 1990 Act then repeals s.16 of the principal Act by introducing a new set of qualifications for electors of the territorial constituencies in order to implement universal suffrage. This necessarily affected the meaning of the term "elector" as defined in s.2 for the term "elector" no longer means just matai electors. Every Samoan citizen of or over the age of 21 years and whose name does not appear on the individual voters roll would now be qualified to register as an elector on the electoral roll for a territorial constituency and vote in that constituency. However, those electors who are matais are still required by s.5 of the 1990 Act to register under their matai titles for the purpose of determining the territorial constituency where they can vote as electors. Thus those people who are non-matais would register on the electoral roll under their non-matai names while those people who are matais would have to register on the electoral roll under their matai titles. The result of this is to have two categories of electors appearing on the roll for each constituency.

If matters were left at that without the enactment of s.4 of the 1990 Amendment Act, the result would have been that not only matais but non-matais would have qualified to become election candidates which is something the legislature never contemplated for it was only concerned with the question of universal suffrage and not with the qualifications for election candidates. The parliamentary debates on that question of universal suffrage never touched on the qualifications for parliamentary election candidate. In the scheme of things, this is clearly the reason why the legislature introduced the amendment in s.4 in the 1990 Amendment Act. It is to make clear that only those electors who are registered on the electoral rolls as matais are qualified to become election candidates for a constituency and to avoid the unintended result of non-matais who are registered on the electoral rolls unexpectedly becoming qualified to become election candidates. In this way, the intention of the legislature in enacting s.4 of the 1990 Amendment Act could not have been to create two separate and distinct qualifications for election candidates in a constituency; the first being a registered elector, the second being the holder of a matai title. The question of qualifications for election candidates affects the legislature so directly in a very real and important way, that one cannot imagine the legislature creating a fundamental change to the qualifications for election candidates by a sidewind when the issue was not debated or even mentioned during the legislative proceedings on the 1990 Amendment Act.

The other ground in support of the view we have decided to take is that to construe s.4 of the 1990 Amendment Act as having the effect of creating two separate and distinct qualifications for election candidates for territorial constituencies would lead to redundancy or disharmony within s.5(1) of the principal Act. As already printed out, the effect of s.5 of the 1990 Amendment Act is to create two categories of electors on the electoral rolls, matai electors and non matai electors. Therefore an additional and distinct qualification of being the holder of a matai title in order to become an election candidate would be unnecessary and redundant to those persons who have already been registered as matai electors on the electoral rolls. If they were not already holders of registered matai titles they would not have been able to register as matai electors on the electoral rolls. Why then should they be further required to be holders of matai titles when they are already holders of registered matai titles and are registered on the electoral rolls as matai electors. The words "and is the holder of a matai title" would therefore be redundant insofar as registered matai electors are concerned if those words are construed to create a separate and additional qualification to become an election candidate. If it is argued that the words "and is the holder of a matai title" refers only to those persons who are registered on the rolls as non-matai electors but not those persons who are registered as matai electors, one would have expected the legislature to speak with more clarity rather than leaving the matter in such an ambiguous and vague fashion, especially on such an important subject to the legislature as the qualifications for election candidates. It will avoid redundancy and ambiguity and produce harmony within s.5(1) of the principal Act if the amendment inserted by s.4 of the 1990 Amendment Act is construed to have the purpose, as it appears to have, of making clear which category of registered electors are qualified to become election candidates rather than to treat s.4 as introducing such an additional and distinct qualification as being the holder of a matai title, for becoming an election candidate.

After the Electoral Amendment Act 1990, the next legislation amending the principal Act is the Electoral Amendment Act 1995. Section 4(1) of the latter Act further amended s.5(1) of the principal Act by providing:

"Subsection (1) of section 5 of the principal Act is amended by inserting immediately after the word ‘constituency’ where that word first occurs the words ‘is the holder of a certificate of identity pursuant to section 135A of that Act’".

It is difficult to see from the wording of s.4(1) of the Amendment Act 1995 that its purpose or one of its purposes, was to make the holding of a matai title a separate and distinct qualification for becoming an election candidate in a territorial constituency. Section 4(1) of the Amendment Act 1995 does not provide to that effect and makes no reference at all to the words "and is the holder of a matai title". In any event, if the legislature had really intended to make the holding of a matai title an additional and distinct qualification for becoming an election candidate, one would have expected the legislature to do so with sufficient clarity through s.4 of the Amendment Act 1990 rather than through s.4(1) of the Amendment Act 1995 which deals with a different matter of a certificate of identity. Section 4(1) of the Amendment Act 1995 cannot be interpreted as intending to make the holding of a matai title a separate and distinct qualification for becoming an election candidate.

An argument was advanced on behalf of the second and third respondents that the decision made by the Registrar of electors and voters as to who may register as an elector on the roll is a separate decision from the decision made by the Chief Electoral Officer as to who may be accepted for nomination as an election candidate. This was to suggest that the decision made by the Registrar of Electors and Voters relates only to the question of who may be registered as electors, whereas the Chief Electoral Office when deciding whether to accept a nomination from a candidate, also has to consider whether the prospective candidate holds a valid certificate of identity and a matai title. With respect, the respective decisions made by the Chief Electoral Officer and the Registrar of Electors and Voters inter-relate and overlap to some extent.

Regulation 2 of the Electoral Regulations 2001 which came into force on 10 January 2001 provides:

"Under the provisions of section 5 of the Act, all candidates shall be required to complete a declaration in accordance with form 10 under the First Schedule".

The first matter provided in Form 10 of the First Schedule that every prospective election candidate must declare is:

"1 I am a registered matai elector as shown under number.......... page ............ of the Main or Supplementary Electoral Roll for the Electoral District of.............."

This declaration form has to be filled in by every prospective election candidate and lodged with the Chief Electoral Officer whose duty is to accept or reject candidates' nomination forms. To confirm whether the first matter to be disclosed by every prospective election candidate is true, the Chief Electoral Office would have to refer to the electoral rolls compiled and decided upon by the Registrar of Electors and Voters. Thus there is an overlap between the respective decisions made by the Chief Electoral Officer and the Registrar of Electors and Voters. The other matter to be noted is that the wording of paragraph one of the declaration form 10 tends to confirm rather than contradict the construction we think should be given to the words in dispute of s.5(1) of the Act.

It is also to be noted that in respect of election candidates for the individual voters, s.5(1) of the Act, as far as relevant, provides:

"Any person who is registered as a voter on the individual voters roll is qualified to be a candidate and to be elected as a Member of Parliament representing the individual voters".

Here again it is clear that the Chief Electoral Officer would have to refer to the individual voters roll compiled by the Registrar of Electors and Voters to see that every prospective election candidate for the individual voters is registered on that roll. Thus there is again an overlap between the respective decisions made by the Chief Electoral Officer and the Registrar of Electors and Voters.

We have also considered the consequences that will follow from the opposing constructions advanced by counsel. We are of the respectful view that the construction advanced on behalf of the second and third respondents will lead to a somewhat anomalous result. It would mean, as it has happened in this case, that someone can be an election candidate for a territorial constituency but he cannot vote under the name by which he is running as an election candidate as he has to vote under the name by which he is registered on the electoral rolls. In addition, it would create a measure of uncertainty as to who may be qualified to become election candidates in a territorial constituency as a registered non-matai elector may just be able in the last moment to acquire a registered matai title after the rolls have closed but before nominations as candidates close. The consequences which will follow from the construction advanced on behalf of the petitioner is that once the rolls are closed only those matai electors on the rolls are qualified to be election candidates. That has always been the position and understanding up to now. So it is not a novel consequence.

The Court in this case has followed the approach stated in O’Neill v O’Connell [1946] HCA 59; (1946) 72 CLR 101, 122 by Dixon J in relation to the reprinted version of a legislation. But the Court would have arrived at the same result if the purposive approach to the construction of legislation as stated by the majority of the House of Lords in Pepper v Hart [1993] 1 A11 ER 42 and as enacted in statutory form by the Commonwealth of Australia and most Australian states, as explained in Statutory Interpretation in Australia (1996) 4^th edition by Pearce and Gedds at pp 53-55, had been applied.

For the reasons the Court has endeavoured to state, we hold that as s.5(1) of the Electoral Act 1963 presently stands, only matai electors who appear as such on the electoral roll for a territorial constituency, are qualified to run as election candidates in that constituency. This means that the Court has, in effect, accepted the construction of s.5(1) advanced for the petitioner. Accordingly, the first respondent was not qualified to run as a candidate in the 2001 general elections. His election is therefore declared void.

The petitioner’s application to be declared elected was not pursued and is denied.

The Court must, however, make it clear that its judgment will not prevent the first respondent from running again in a by-election to be held for the Salega constituency, provided by the time the electoral roll is closed for such a by-election, he is already registered under his matai title Tapuai on the roll.

The Court will report its findings to the Honourable Mr Speaker.

We have also decided to make no order as to costs.

In conclusion, we thank counsel for the second and third respondents for providing the parliamentary materials as required by the Court.

Solicitors:
Richard’s Law Firm for petitioner
TV Eti for first respondent
Attorney General’s Office for second and third respondents