Liuga v Alailima [2016] WSSC 11 (29 February 2016)

SUPREME COURT OF SAMO
Liuga v Alailima [2016] WSSC 11

Case name:	Liuga v Alailima
Citation:	[2016] WSSC 11
Decision date:	29 February 2016
Parties:	FAUMUINA TIATIA FAAOLATANE LIUGA of Papa, Gataivai, Sili and Ululoloa, Candidate and LE TAGALOA LEOTA TAMA DR. PITA ALAILIMA of Sili and Alafua, Candidate.
Hearing date(s):	23 February 2016
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
	Justice Vaai
On appeal from:
Order:	The respondent Le Tagaloa Pita is disqualified from being a candidate for the Territorial Constituency of Palauli le Falefa in the upcoming election. Costs of $1,000 are awarded to the Applicant against the Respondent. A copy of this judgment is to be served on the Acting Electoral Commissioner.
Representation:	R Papalii for applicant
	S Ponifasio for respondent
Catchwords:	Service requirement -
Words and phrases:	Respondent has failed to satisfy service requirement
Legislation cited:
Cases cited:	Electoral Act 1963 Le Tagaloa Pita v Faumuina Liuga and Attorney General (31/5/2011 Interpretation Act 1974 Amituanai Fagaivalu Kenrick Samu v Leo’o Tautalatasi Adams 25/2/2016
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of the Territorial Constituency of Palauli le Falefa

A N D:

IN THE MATTER OF:

a motion for disqualification of candidate pursuant to s. 5(9) of the Electoral Act 1963

BETWEEN:

FAUMUINA TIATIA FAAOLATANE LIUGA of Papa, Gataivai, Sili and Ululoloa, Candidate.
Applicant

A N D:

LE TAGALOA LEOTA TAMA DR. PITA ALAILIMA of Sili and Alafua, Candidate.
Respondent

Coram:
Sapolu CJ
Vaai J
Counsel:
R Papalii for applicant
S Ponifasio for respondent

Hearing: 23 February 2016

Conclusion: 25 February 2016

Judgment: 29 February 2016

JUDGMENT OF THE COURT DELIVERED BY VAAI J

Introduction

1. Before the court is an application by the applicant Faumuina Tiatia Fa’aolatane Liuga, filed pursuant to section 5 (9) Electoral Act 1963 for an order to disqualify the respondent Le Tagaloa Pita as a candidate in the forthcoming general election.
2. At the close of nominations of candidates for the upcoming elections the applicant, the respondent and other two candidates were the four candidates nominated for the constituency of Palauli Le Falefa. The applicant alleges that the respondent does not meet the village service requirement specified under the Act.
3. Failure by a candidate to satisfy the village service requirement is one of the grounds provided under the Electoral Act to disqualify a person as a candidate or from election as a member representing a constituency.

Relevant provisions of the Electoral Act 1963

4. Disqualification as a candidate or from election as a member representing a constituency for failure to satisfy the village service requirement is provided in section 5 (3) of the Act.
   • It states:

“5 (3) A person is disqualified as a candidate, or from election as a Member of Parliament representing a constituency, if he or she:

(a) ...

• (b) ...
• (c) does not have a statutory declaration, in Form 1A of the Schedule 1, witnessed by a barrister and solicitor of the Supreme Court in private practice, that the candidate satisfies the 3 year residential requirement in paragraph (b) and satisfies the village service requirement.

Village Service

5. Village service is defined in section 5 (3A). In respect of a candidate for a territorial constituency, village service means a monotaga rendered by a candidate in respect of one or more of his matai titles within the territorial constituency in which the candidate intends to stand as a candidate.

Monotaga

6. The term monotaga is defined in the same section as:
   • “monotaga means the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village.”

Uncontested facts

7. Both parties agree that the respondent, due to the status of his matai title, and in accordance with the customs and traditions of his village, does not render a monotaga; but he does render services assistance and contributions. He performs a tautua through his assistance and contributions.

The issue

8. The simple issue, agreed to by both parties, for consideration is whether, the tautua, the rendering of assistance, services and contributions (tautua) by the respondent satisfies the village service requirement under section 5 (3A).
9. Oral evidence was not necessary, affidavits by the applicant and the respondent were produced by consent and counsels addressed the issue in their oral and written submissions.

Le Tagaloa Pita v Faumuina Liuga and Attorney General (31/5/2011)

10. The respondent in his supplementary affidavit stated at paragraph 7 that the applicant, after the 2011 General election, challenged his eligibility in the above cited case as a candidate on the same ground as the current challenge, namely that the respondent had not performed a monotaga. He says at paragraph 9 of his affidavit:
    • “I am puzzled therefore as to why the Applicant is again bringing a challenge to my eligibility as a candidate on the same ground which the court had, as it decided, accepted the customs of the village of Sili pertaining to the Le Tagaloa title and the monotaga. The village custom is undisputed and is an accepted practice.”
11. Counsel for the respondent in her submissions did not pursue this issue for very obvious reasons. Firstly the court did not consider the eligibility of the respondent to qualify as a candidate because the allegation was abandoned during the hearing. Secondly, section 5 (3A) did not exist then as it was introduced by the 2015 No. 5 amendment to the Electoral Act.

Submissions by the Applicant

12. Ms Papalii for the applicant contended that the amendment to the Act specifically introduced monotaga to be satisfied to qualify as a candidate. She said that people like the respondent who hold the Papa title will be effectively excluded but that is the intention of Parliament it is mandatory to render monotaga for at least 3 years prior to election if one wishes to be a candidate of a territorial constituency.
13. The thrust of the submission is that the object that was intended to be attained, or the purpose of the amendments was to restrict the eligibility of candidates for territorial constituencies to those who render compulsory service to the village and meet the residential requirement.
    

Submissions by the Respondent

14. Counsel for the respondent contended that monotaga as defined in the Act is not restricted to compulsory service. She argued that monotaga as used means compulsory service, or contribution, and since the respondent contributed to the village he has accordingly satisfied the village service requirement.

To satisfy the village service requirement it is the contention of counsel that the candidate should either render compulsory service to the village or contribute or assist to the customary, traditional or religious activities of the village.

15. If the word monotaga is given a restricted interpretation counsel submitted it would discriminate against the respondent as it would exclude the respondent from being a candidate of a territorial constituency.

Violation of Article 15 of the Constitution?

16. The issue of possible violation of article 15 of the Constitution was not raised by counsel for the Respondent in the pleadings and in the submissions. As the issue was not mooted we make no findings on it. We nonetheless make the observation that the Preamble to the Constitution states inter alia:
    • “Whereas the leaders of Samoa have declared that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition.” ..

And article 15 which guarantees freedom from discriminatory legislation provides:

(1) All persons are equal before the law and entitled to equal protection under the law.
(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.”

Discussion

17. Since the 2011 General Elections, Parliament enacted two amendments to the Electoral Act concerning the qualification and disqualification of persons to be candidates. The amendment introduced section 5 (3) (c) which provided for disqualification of a candidate if the candidate:
    • “does not have a statutory declaration in Form 1A of the Schedule 1, witnessed by a barrister and solicitor of the Supreme Court in private practice, that the candidate satisfies the 3 year residential requirement in paragraph (b) or satisfies village service requirement.”
18. Section 5 (3) (c) was amended again in September 2015 by the Electoral Amendment Act (No5) 2015 by deleting the word or after (b) and substituting with the word and. The purpose of the amendment was to require a candidate to satisfy both the residential and the village service requirements. Section 5 (3A) was also amended and the word monotaga was defined.
19. Section 5 (i) Acts Interpretation Act 1974 provides that:
    • “Every Act and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning and spirit.”
20. The purposive approach mandated by section 5 (i) Acts Interpretation Act requires words to be considered in their total context ⁽¹⁾. Parliament has been grabbling with the issue of qualification of persons entitled to be candidates in the general elections for quite some time and some of the qualifications imposed by legislative amendments have been subjected to challenges in this Court. Residential and service requirements are the two major requirements imposed by legislation to confine the qualification of candidates to those who normally reside in Samoa and provide services to their villages and communities.
21. The meaning of monotaga as defined in the Act is simply the compulsory service, contribution or assistance. Compulsory is defined in the shorter Oxford Dictionary as: produced by or acting under compulsion; forced, coercive. The definition of monotaga in the Act matches its traditional meaning. It does not include and was never intended by Parliament to include other voluntary services as submitted by counsel for respondent. Any other form of tautua or service is not monotaga. The Samoan meaning of monotaga as defined in the Act confirms this view:
    • “Monotaga” o lona uiga o le tautua e fa’amalosia ...
22. We conclude as we did in Amituanai Fagaivalu Kenrick Samu v Leo’o Tautalatasi Adams 25/2/2016 that services to the village which cannot be classified as compulsory service rendered for customary, traditional and religious activities pursuant to the customs and traditions of the village is not monotaga under the Act.
23. We note and understand the concern of counsel for the respondent of the impact of the Act on the respondent as a Papa or Ao of his village. But the court cannot use the purposive approach to statute interpretation to justify rewriting a statute as the court would have written it, nor does it justify attributing a meaning to words arrived at by working backward from an assumed purpose ⁽²⁾

Conclusion

1. The respondent Le Tagaloa Pita is disqualified from being a candidate for the Territorial Constituency of Palauli le Falefa in the upcoming election.
2. Costs of $1,000 are awarded to the Applicant against the Respondent.
3. A copy of this judgment is to be served on the Acting Electoral Commissioner.

CHIEF JUSTICE
JUSTICE VAAI

(1) Rt Hon Sir Ian McKay “Interpreting Statutes – A Judges view [2000] OtaLawRw 10; (2000) 9 Otago LR 743 at 751
(2) McKay above at 749.