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Amosa v Electoral Commissioner [2020] WSSC 75 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Amosa v Electoral Commissioner [2020] WSSC 75


Case name:
Amosa v Electoral Commissioner


Citation:


Decision date:
27 November 2020


Parties:
TALALAFAI TOMA AMOSA (Applicant) v ELECTORAL COMMISSIONER (Respondent)


Hearing date(s):
23 November 2020


File number(s):
MISC 258/20


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judges:
Acting Chief Justice Tuatagaloa
Justice Roma


On appeal from:


Order:
(a) The Respondent is ordered pursuant to section 47(3) of the Electoral Act 2019 to accept the nomination of the applicant, Talalafai Toma Amosa as a candidate and include him in the List of Candidates for the Electoral Constituency of Faasaleleaga No.2 in the General Elections 2021.
(b) Costs of $1,500 are awarded to the Applicant against the Respondent.


Representation:
L. Su’a-Mailo for the Applicant
K. Seuseu and A. Iati for the Respondent


Catchwords:
Electoral challenge - accrued right –– nomination as a candidate –qualification requirement – compulsory service –


Words and phrases:
statutory declarations on residential – rendering monotaga or service


Legislation cited:
Acts Interpretation Act ss. 13; 25(1)(c);
Constitution of the Independent State of Samoa, Article 45;
Declaratory Judgments Act 1988, ss. 4; 4(b);
Electoral Act 2019 ss. 8; 8(1); 8(1)(c); 8(1)(d); 8(1)(d)(i); 8(1)(d)(ii); 8(2); 8(5); 47; 47(2); 47(3); 47(4);
Electoral Amendment Act 2000 (No.8);
Electoral Commissions Act 2019 s. 4(1)(j);
Electoral (Forms) Regulation 2019.


Cases cited:


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


Section 47 of the Electoral Act 2019 (as amended)


BETWEEN:


TALALAFAI TOMA AMOSA, Principal, and matai of Iva, Savaii


Applicant


A N D:


ELECTORAL COMMISSIONER


Respondent

Coram:
Acting Chief Justice Tuatagaloa
Justice Roma


Counsel: L. Su’a-Mailo for the Applicant
K Seuseu and A Iati for the Respondent


Hearing: 23 November 2020
Judgment: 27 November 2020


JUDGMENT OF THE COURT

  1. Pursuant to section 47 of the Electoral Act 2019 (“the Act”), the Applicant challenges the decision of the Respondent rejecting his nomination as a candidate for the general elections in April 2021. At issue in these proceedings is whether or not the Applicant is qualified to run as a candidate in the General Elections 2021.
  2. The issues canvassed in the present case are the same as those raised in the cases of Tuimauga v Electoral Commissioner (9/11/20) and Su’a Samuelu Su’a v Electoral Commissioner (13/11/20).
  3. According to the applicant, Talalafai Toma Amosa he has held the matai title “Talalafai” from the village of Iva, Savaii since 28th December 1999 and had only registered his matai title on 1stSeptember 2020.[1]

The Motion by the Applicant

  1. The Applicant on 20 October 2020 lodged his nomination as a candidate for the Electoral Constituency of Faasaleleaga No.2. His nomination was rejected by the Electoral Commissioner for not having satisfied the matai and monotaga requirements:[2]
  2. It is stated in the Affidavit of Mauga Fetogi as follows:
  3. The Applicant seeks to be qualified as a candidate for the general elections in 2021 upon the grounds:
  4. The Applicant further provides the following grounds in support of his otion:

The response by the Respondent

  1. The Respondent opposes the Applicant’s motion on the following grounds:

The relevant provisions of the Constitution and the Electoral Act 1963

  1. Article 45 of the Constitution which provides the qualifications for a person to be elected as a Member of Parliament states:
  2. The Electoral Act 2019 was assented to and commenced on the 31st January 2019. Since commencement it has been amended twice by the Electoral Amendment Act 2013, No. 13 (4th May 2020) and the Electoral Amendment Act 2020 (No. 2), (23rd September 2020).
  3. Section 8 (1) of the Electoral Act 2019 provides the qualifications for a person to be elected as a Member of Parliament and is based on and follows the provisions of Article 45 of the Constitution and states: (with emphasis)
  4. Section 8(2) provides the grounds for the disqualification of a person from running as a candidate for a parliamentary election if that person does not meet the requirements in section 8(1) and:
  5. For purposes and relevance to the present application, section 8(5) defines monotaga and village as follows:
  6. Section 47 which deals with the Respondent’s powers to accept and reject nominations provides as follows:
  7. In terms of s.47 (4) an order made by the Court under section 47(3) is final and not subject to review or appeal.

Submissions of the Applicant

  1. The Applicant says that section 8(1)(c) expressly refers to the matai title that the intended candidate will use to contest in the general elections must be registered and that section 8(1)(d) relates only to monotaga. The Applicant says that there is no requirement under section 8(1)(c) that the matai title must be registered for at least three years. The three (3) years only comes in as a requirement to the monotaga under section 8(1)(d) as is with residence under section 8(1)(e).
  2. The Applicant submits that as long as the matai title is registered and that there was monotaga for at least three (3) consecutive years (to the date the nomination was lodged with the Electoral Commissioner) rendered to the matai title and village that the intended candidate will contest in, the Applicant is qualified to run. The gist of the Applicant’s argument (as we understand) is:
  3. The Applicant submits that the Electoral Commissioner does not have jurisdiction under section 47 to reject nominations for failing to meet the qualifications requirements prescribed by section 8 of the Act. Section 47 relates only to the “forms” that are to be duly completed and witnessed. Therefore, the Electoral Commissioner is only afforded the authority under section 47(2) to reject nomination of a candidate only in relation to forms where such forms are not duly completed.
  4. Furthermore, the Applicant says that the Court has the following jurisdiction to preside over the present Motion:

Submissions of the Respondent

  1. The Respondent is adamant that the law is, the matai title must be registered for a minimum of three years up to the date the nomination was lodged. Given that the matai title was only registered on 1st September 2020 less than two months prior to the last day of the nomination period, the Applicant has therefore not satisfied the three year requirement for registration of the matai title.[6]
  2. On the issue of “accrued right” of the Applicant, the Respondent says that any right of the Applicant would only accrue when the requirements of section 8 are met and confirmed in the nomination period.
  3. The Respondent claims that the Electoral Commissioner has the authority to reject nomination under section 47(2). The Respondent also refers to some general powers[7] that the Electoral Commissioner has under the Electoral Commissions Act 2019. The Electoral Commissions Act is specific to the setting up of the office and the functions of that office and the appointment and role of the Electoral Commissioner in its running. Section 4(1)(j) of the Electoral Commissions Act does not apply.
  4. The arguments by the Applicant and Respondent in relation to section 8(1)(c), 8 (1)(d) and section 47 of the Act. is one of statutory interpretation.

Discussion

  1. The Motion by the Applicant requires us to consider whether he meets the requirements of section 8(1)(c) and (1)(d) of the Act. The nomination was rejected by the Electoral Commissioner on the following basis:
  2. Before we look further into section 8(1)(c) and (1)(d) we need to consider what decision making power or authority the Electoral Commissioner has.

a) Does the Electoral Commissioner have the authority to disqualify a person for failing to meet the qualifications requirements prescribed by section 8 of the Act.

  1. There is no express power given to the Electoral Commissioner to disqualify a person for failing to meet the qualifications requirements in section 8(1) of the Act. The Electoral Commissioner’s role is only limited to the ‘forms’ under section 47(2).
  2. The Respondent’s ‘decision’ to reject the Applicant’s nomination to be a candidate for the 2021 General Elections was made pursuant to section 47 of the Act. Section 47(1) of the Act provides that the Respondent must accept a nomination of a candidate if it fulfils all requirements set out in subsection (2). Section 47(2) is specific to the nomination documents lodged by an intending candidate for election, that must be duly completed, confirmed and witnessed. The Electoral Commissioner must accept those forms if duly completed, confirmed and witnessed.
  3. Therefore, any purported decision by the Electoral Commissioner rejecting the Applicant’s nomination pursuant to section 47 on the grounds of having not satisfied the qualifications requirement under section 8 is (in our view) ultra vires and unlawful.
  4. The question arises as to whether the candidate can challenge a decision of the Electoral Commissioner made pursuant to section 8?

b) Can the Applicant, as candidate challenge a decision of the Electoral Commissioner made pursuant to section 8?[9]

  1. The short answer is ‘no’. The candidate can under section 47(3) challenge a decision of the Electoral Commissioner in relation to “forms” pertaining to section 47 but not matters pertaining to section 8. Section 8 does not provide a mechanism for the candidate to challenge a decision of the Electoral Commissioner in relation to qualifications requirement.
  2. There would be no need for the candidate to challenge a decision of the Electoral Commissioner pursuant to section 8 because the Electoral Commissioner does not have the power under the Act to make any decision regarding or pursuant to section 8.[10]
  3. Although the Motion is brought pursuant to section 47 of the Electoral Act 2019 the Applicant also submitted that the decision of the Electoral Commissioner can also be challenged by virtue of section 4(b) of the Declaratory Judgments Act 1988 (“the DJA”) where the Applicant has “accrued right” to run as a candidate when he was bestowed with his matai title in 1999. This right (they say) by virtue of section 13 of Acts Interpretation Act 2015(“the AIA”) has not been extinguished despite any repeals and amendments. The Applicant says that the Electoral Act 2019 (as amended) is not retrospective.
  4. The Respondent argues that the right accrues when the requirements under section 8 have been met and confirmed during the nomination period. We agree if what the Respondent is saying is, that the right to run as a candidate only accrues during the nomination period. The Applicant can be bestowed with a matai title but that does not mean he has the right to run as a candidate until the nomination period where it will be determined whether he is qualified to run as a candidate.
  5. The argument in relation to “accrued right” is irrelevant to the statutory interpretation of section 8(1)(c) and (1)(d) as to whether the three (3) years apply to the registration of matai title or only to monotaga. The interpretation of section 8(1)(c) and (1)(d) before the Court does not depend or is premised on any accrued right.
  6. In any event, if s.8 deals with qualifications for eligibility and the Commissioner is bound to accept or reject a nomination under 47 only upon the forms duly completed, signed and witnessed, it must be the intention of Parliament that any challenge concerning the qualifications under s.8 and / or the accuracy of the information upon which the Commissioner accepts or rejects a nomination, must then be determined by the Court. The Court can do so in its inherent jurisdiction.

c) What does section 8(1)(c) and (1)(d) of the Electoral Amendment Act 2019 say?[11]

  1. It is clear that section 8 (1) of the Electoral Act 2019 pes the qualifications for for a person to be able to run as a candidate in an electoral constituency.
  2. Counsel for the Applicant sunt submits that sections 8(1)(c) and (1)(d) are very clear and they are not to be read together - that (1)(c) relates to the candidate being a holder of a registered matai title and (1)(d) relates to the monotaga with the three (3) year requirement being specific to monotaga one has to render up to the day of nomination. The Applicant says that there is no requirement stipulated in section 8(1)(c) and (1)(d) that the matai title has to be registered for three (3) consecutive years to the day of nomination.
  3. The Respondent on the other hand submits that section 8(1)(c) and (1)(d) are to be read together in that the words in (1)(d), “has rendered a monotaga in respect of the registered matai title” ties it in with (1)(c); therefore the matai title that the monotaga has been rendered under is to be registered for three (3) consecutive years. He says this is the intention of Parliament in accordance with the remarks by the Honorable Minister Faaolesa K Ainuu when he introduced the amendments on 23rd September 2020.[12]
  4. Counsel for the Applicant in response to the intention behind s.8(1)(c) and (1)(d) argued that what the Honorable Minister said in Parliament was contrary to the Explanatory Memorandum to the Electoral Amendment Bill (No.2) 2020, the legislative history of the Act and the Forms[13] that are required to be completed.
  5. The significance of section 8(1) highlights what has always been the case with Samoa’s electoral system that only matai, are qualified to run as election candidates. Section 8(1)(c) and (1)(d) amplifies the matai system or Samoa’s custom and usage. Section 8(1)(c) provides that an intended candidate is a matai and must register his/her matai title before he/she can be nominated to run as a candidate whilst section 8(1)(d) provides for monotaga or services rendered to your matai title and village.
  6. In ascertaining the meaning the legislature intended for sections 8(1)(c) and (1)(d) to convey, one should understand the nature of the Act.

(i) The legislative history

  1. The legislative history of a statutory provision can of course be a useful aid to the understanding and interpretation of such provision.
  2. The Court is able to take judicial notice of the fact that since Samoa gained Independence in 1962 and the enactment of the Electoral Act 1963 up to the introduction of universal suffrage in 1990, it remained to date that only matai, are eligible to run as candidates. It is not clear when the requirement of the candidate to be a holder of a registered matai title became law.[14] What is clear is, there was never a timeframe imposed by which one should register his/her matai title.
  3. However, there seemed to have always been a number of years imposed on the monotaga and residence. On 6th July 2000[15] there was amendment to the qualification requirements by changing the number of years for monotaga and residential to three (3) years which remains to date.

(ii) The parliamentary debates of 23 September 2020 Amendments and Explanatory Memorandum

  1. The amendments to the Electoral Act 2020 introduced on 22 September 2020 and assented to on 23 September 2020 was introduced into Parliament by the Minister of the Electoral Commission, Honourable Faaolesa Katopau. In his introduction of the amendments in relation to section 8(1)(c) and (1)(d) he said: (relevance is highlighted)
  2. The Explanatory Memorandum in relation to the relevant section 8(1)(c) and (1)(d) say:
  3. The Honourable Minister’s introduction of the amendments in Parliament and the Explanatory Memorandum to the amendments are inconsistent. The Honorable Minister said that the matai title must be registered not less than three years (highlighted) while the Explanatory Memorandum (as highlighted) states the intention behind the amendment to section 8 is in relation to monotaga. It is very clear that the three (3) years requirement is to the rendering of the monotaga.
  4. At nowhere does the Explanatory Memorandum say that the matai title must be registered for at least three (3) consecutive years. The debates that follow in Parliament regarding these amendments was to the monotaga in relation to the new electoral boundaries, not to the matai title having to be registered for at least three (3) years.
  5. Section 8(1)(d) of the Electoral Act 2019 clearly conveys the intention as in the Explanatory Memorandum. The amendment is specific to monotaga under section 8(1)(d). The three (3) year requirement is to monotaga not the matai title.
  6. The Explanatory Memorandum is more consistent with the literal interpretation of section (8)(1); an interpretation that captures the true intention of Parliament and spirit of the Electoral laws all along that matai title only need to be registered and that registration was never restricted by or to a number of years. An interpretation that is consistent with our customs and usage of monotaga; that service or tautua starts once one is bestowed a title and becomes a matai, registered or not, to the village the title is from.

(iii) The “Forms”

  1. The nominated candidate is required under the law to complete various Forms provided for in the Electoral (Forms) Regulations 2019.
  2. Forms 3 and 11 are in the form of a statutory declarations on residential and monotaga under the Oaths, Affidavits and Declarations Act 1963.[16] It provides for two matters to be satisfied by a person nominated as a candidate for election in an electoral constituency.
  3. None of the relevant Forms refer to monotaga to be rendered for at least 3 years from the date of registration of matai title or that the matai title must at least be registered for 3 consecutive years up to the day of nomination.
  4. The ‘forms’ emphasize and confirm the true intention behind section 8(1)(c) and (1)(d), that one must (have) at least rendered 3 years monotaga to his registered matai title within the village the registered matai title is from.
  5. For the sake of completeness it is appropriate that we consider the question whether the applicant, Talalafai Toma Amosa has satisfied the requirements of ‘monotaga’ under section 8(1)(d).
  6. The affidavit of Mauga Fetogi Vaai for the Electoral Commissioner accepted that the Applicant satisfied the requirements in section 47(2) but that the recommendation to reject was upon the qualification requirements pursuant to section 8 for which the Respondent has no authority. [17]

(e) Does the Applicant meet the qualification requirements under section 8(1)?

  1. The Motion by the Applicant is supported by affidavits from thirteen (13) matai of the village of Iva who confirmed the bestowment of the title “Talalafai” upon the Applicant in 1999. The thirteen matai also confirmed that since then the Applicant has been rendering monotaga for at least the last 3 consecutive years to the day of his nomination for the General Elections.
  2. These affidavits were not challenged and tendered in evidence by consent. The affidavits confirmed (i) bestowment of the title ‘Talalafai’ upon the Applicant on 28 December 1999; (ii) that the bestowment was in accordance the customs of the village of Iva; and (iii) the Applicant has been rendering monotaga since bestowment of title to date.
  3. We are satisfied the Applicant has met the three (3) years’ requirement of monotaga up to the day of the Applicant’s nomination on 20 October 2020 pursuant to section 8(1)(d).

Conclusion

  1. There is no express power given to the Commissioner to disqualify a person for failing to meet the qualification requirements under section 8(1). His role to accept or reject a nomination is limited to section 47 of the Act. The decision of the Electoral Commissioner pursuant to section 47(2) is ultra vires and unlawful.
  2. The fact that, the Electoral Commissioner does not have the power to reject nominations for failing to meet the qualifications under s.8 means that there is no need for a requirement of a mechanism to be provided under the Act in order for the candidate to challenge a decision of the Electoral Commissioner relating to section 8.
  3. There is no requirement in section 8(1)(c) or (d) that requires the matai title to have been registered for a period of three (3) years ending on the day in which the nomination was lodged with the Respondent. This can be gleaned from:
  4. If it was truly the intention of Parliament that the matai title must at least be registered for three years then this should have been reflected in the Explanatory Memorandum, the Parliamentary debates, the contents of the ‘forms’ required to be completed, the definitions and most of all clearly expressed in the provisions of sections 8(1)(c) and (1)(d).
  5. The Applicant satisfies the qualification requirements imposed by section 8 of the Act to run as a candidate in the 2021 general elections.

Orders

  1. The Court makes the following orders:

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE ROMA


[1] Affidavits of Talalafai Toma Amosa and 13 matai from village of Iva.
[2] See: Annexure “F” of Affidavit of Mauga Fetogi Vaai
[3] See Annexure “G” of the Affidavit of Mauga Fetogi Vaai
[4] Ibid, paragraph [21]

[5] Refer to footnote [5] bottom of page [8]
[6] Affidavit of Mauga Fetogi Vaai at paragraphs [28] & [29]
[7] Electoral Commissions Act 2019, section 4(1)(j).
[8] See Annexure “G” and paragraph [19] of the Affidavit of Mauga Fetogi Vaai
[9] See also Su’a Samuelu Su’a v Electoral Commissioner (27/11/20)
[10] The power for the Electoral Commissioner to disqualify an intending candidate under section 8 was expressly removed by Parliament on 23rd September 2020.
[11] Refer also to discussions in Tuimauga v Electoral Commissioner and Su’a Samuelu Su’a v Electoral Commissioner. These two cases have the same issues.
[12] Authorities by Respondent, marked “7”
[13] Electoral (Forms) Regulations 2019
[14] In reference to the legislative history provided by the Applicant marked “H” in her submissions. It was in the late 1990s or early 2000 that the requirement became law.

[15] Electoral Amendment Act 2000 (No.8)
[16] Electoral (Forms) Regulations 2019, regulation 4(2)
[17] Affidavit of Mauga Fetogi Vaai, paragraph [19]

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