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Su'a v Electoral Commissioner [2020] WSSC 80 (27 November 2020)

IN THE SUPREME COURT OF SAMOA
Su’a v Electoral Commissioner [2020] WSSC 80


Case name:
Su’a v Electoral Commissioner


Citation:


Decision date:
27 November 2020


Parties:
SU’A SAMUELU SU’A, matai of Samusu – Aleipata itupa i lalo (Applicant) v ELECTORAL COMMISSIONER, appointed pursuant to the Electoral Act 2019 (Respondent)


Hearing date(s):
16 November 2020


File number(s):
MISC 249/20


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Acting Chief Justice Tuatagaloa
Justice Roma


On appeal from:


Order:
The Court make the following orders:
(a) The Respondent is ordered pursuant to section 47(3) to accept the nomination of the applicant, Su’a Samuelu Su’a and include his name in the List of Candidates for the Electoral Constituency of Aleipata Itupa I Lalo in the General Elections 2021.
(b) Costs of $1,500 are awarded to the Applicant against the Respondent.


Representation:
A. Su’a for the Applicant
T. Peniamina & T. Faitele for the Respondent


Catchwords:
Electoral challenge - nomination as a candidate –monotaga requirement (compulsory service).


Words and phrases:
whether qualified to run as a candidate.


Legislation cited:
Acts Interpretation Act 2015 ss. 7; 7(3)(a); 7(3)(c);
Constitution of the Independent State of Samoa, Articles 15; 45; 100;
Electoral Act 2019 ss. 8; 8(1)(c); 8(1)(d); 8(1)(d)(i); 8(1)(d)(ii); 8(1)(e); 8(2); 8(5); 47; 47(2); 47(3); 47(4);
Electoral Amendment Act 2000 (No. 8) ss. 8(1);
Electoral (Forms) Regulations 2019, regulation 4(2).


Cases cited:


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:
of an application made pursuant to section 8 and section 47 of the Electoral Act 2019


BETWEEN:


SU’A SAMUELU SU’A, matai of Samusu – Aleipata itupa i lalo


Applicant


A N D:


ELECTORAL COMMISSIONER appointed pursuant to the Electoral Act 2019


Respondent

Coram:
Acting Chief Justice Tuatagaloa
Justice Roma


Counsel:
A. Su’a for the Applicant
T. Peniamina & T. Faitele for the Respondent


Hearing: 16 November 2020
Judgment: 27 November 2020


JUDGMENT OF THE COURT

  1. Pursuant to section 8 and section 47 of the Electoral Act 2019, the Applicant challenges the decision of the Respondent to reject his nomination as a candidate for the upcoming general elections in April 2021.
  2. The applicant, Su’a Samuelu, was bestowed the matai title “Su’a” from the village of Samusu in the Electoral Constituency of Aleipata Itupa i Lalo in 2016 but had it registered only recently in September 2020.
  3. At issue is whether or not the Applicant is qualified to run as a candidate pursuant to section 8 of the Electoral Act 2019 (“the Act”).

The Motion by the Applicant

  1. The Applicant on 22 October 2020 lodged his nomination as a candidate for the Electoral Constituency of Aleipata Itupa i Lalo. His nomination was rejected by the Electoral Commissioner on the same day for the following reason:
  2. The Applicant seeks to challenge the Electoral Commissioner’s decision upon the following grounds:
  3. The Applicant submits that section 8(1)(c) expressly require that the matai title that the intended nominee will use to contest in the general elections must be registered and that section 8(1)(d) is specific to the monotaga requirement, as is section 8(1)(e) with residence. The Applicant says that there is no reference under section 8(1)(c) that the matai title must be registered for at least three years. The three (3) year time frame only comes in as a requirement to the monotaga under section 8(1)(d) and residence under section 8(1)(e). The gist of the Applicant’s argument (as we understand it) is:
  4. The Applicant further says that section 47 relates only to the “forms” that require completion and does not relate to section 8 of the Act. That the Electoral Commissioner is only afforded with the authority under section 47(2) to reject nomination of a candidate only in relation to forms where such forms are not duly completed. The Electoral Commissioner does not have the authority to reject nomination in relation to section 8. The Applicant says the Electoral Commissioner’s decision to reject the nomination of the Applicant is unlawful and should be voided.

The response by the Respondent

  1. The Respondent opposes the Applicant’s motion on the following grounds:
  2. The Respondent is adamant that the law is that, 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 29th September 2020, less than a month 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.[2]
  3. The Respondent says that the Electoral Commissioner has the authority to reject nomination under section 47(2). The Respondent refers to some general powers that the Electoral Commissioner has under the Electoral Commissions Act 2019. The Electoral Commissions Act is specific to the setting up of the office, the functions of that office, and the appointment and role of the Electoral Commissioner in the running of that Office. The Electoral Commissions Act does not apply.

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 to mean:
  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.

The issue(s)

  1. The issues are:
  2. The arguments by the Applicant and Respondent are one of statutory interpretation of section 8(1) and section 47 of the Act.

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 and whether the Respondent has the authority to disqualify a person for failing to meet the qualifications requirements under section 8. 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 powers 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. The Respondent’s ‘decision’ to reject the Applicant’s nomination was made pursuant to section 47. Section 47(1) 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 and which the Electoral Commissioner must accept if duly completed, confirmed and witnessed.
  2. The Applicant says that 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 limited to the ‘forms’ under section 47(2). We agree.
  3. Any purported decision by the Electoral Commissioner pursuant to section 47 rejecting the Applicant’s nomination on the ground of having not satisfied the qualifications requirement under section 8 is ultra vires and not in accordance with the express provisions of the Act.

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

  1. The short answer is ‘no’. The candidate can only under section 47(3) challenge a decision of the Electoral Commissioner in relation to “forms” or matters 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 Electoral Commissioner in relation to qualifications requirement under section 8(1).
  2. The Electoral Commissioner does not have the authority under section 8 to reject nominations or to disqualify, therefore, there is no need for a requirement or mechanism for the Applicant to challenge a decision of the Electoral Commissioner on qualifications requirement under section 8.[5]

c) What does section 8(1)(c) and (1)(d) of the Electoral Amendment Act 2019 say?[6]

  1. Section 8 (1) of the Electoral Act 2019 is clear on the qualifications for a person to be able to run as a candidate in an electoral constituency.
  2. Counsel for the Applicant submits that sections 8(1)(c)1)(c) and (1)(d) are very clear; (1)(c) relates to the holder of a registered matai title and (1)(d) to the monotaga with the three (3) year requirement being specific to the 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 within three (3) consecutive years ending on the day of nomination.
  3. The Respondent also agrees that sections 8(1)(c) and (1)(d) are very clear but says that section 8(1)(c) and (1)(d) are to be read together for the words in s.8(1)(d), “has rendered a monotaga in respect of the registered matai title” ties in with s.8(1)(c) where monotaga has to be rendered in respect of the registered matai title for three (3) consecutive years.[7] He says that the matai title that the monotaga has been rendered under is to be registered for three (3) consecutive years so the monotaga that is rendered is under the registered matai title.[8]
  4. 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.
  5. Section 8(1)(c) is very clear that the person intended to run as a candidate must be, “A holder of a registered matai for the Constituency that person intends to represent.” Nowhere in section 8 does it say that the intended candidate must register his matai title at least three (3) consecutive years up to the day of nomination as is the interpretation advanced by the Electoral Commissioner.[9] We disagree with that interpretation for that is reading words into a section or provision of the Act that are not there.
  6. Section 8(1)(c) and 8(1)(d) read in its plain and ordinary meaning simply requires that:[10]

d) Is there ambiguity? If so, where does the ambiguity (if any) arise?

  1. There are two different interpretations put forward by Counsels:
  2. The Court is put on notice that there may be ambiguity when there are two different interpretations of a statutory provision. 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. A number of assumptions and approaches are available to the Court to assist with statutory interpretation.[11]

(i) The legislative history

  1. In ascertaining the meaning the legislature intended for section 8 specifically sections 8(1)(c) and (1)(d) to convey, one should understand the nature of the Act. The legislative history of a statutory provision is useful in interpreting and understanding its meaning.
  2. The Court is able to take judicial notice of the fact that since Samoa gained Independence in 1962 and the Electoral Act 1963’s enactment 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.[12] 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 even before the year 2000. On 6th July 2000[13] there was amendment to the qualification requirements by changing the number of years for monotaga and residential to three years. That remains to date. The reason (we believe) behind the introduction of the 3 years’ requirement for monotaga and residence is because of matai who reside overseas with aspirations to run as candidates in the general elections yet have not lived and rendered any service to the village their matai titles are from.

(ii) The repealed section 8(1) v the current section 8(1) as of 23 September 2020.[14]

  1. The earlier section 8(1) repealed by the amendments that commenced on the 23rd September 2020 relevantly provided:
  2. There were no substantive changes to the requirement for residence and monotaga except that the drafters rearranged ‘residence’ and ‘monotaga’ - shifting residence from 8(1)(d) to 8(1)(e) and monotaga from 8(1)(e) to 8(1)(d). The drafters went on to further break down monotaga to (i) and (ii) in place of the long sentence that there was.
  3. Section 8(1)(c) remains the same. It only says that the candidate must be a holder of a registered matai title for the Constituency the candidate intends to represent. It does not say that the intended candidate must register his matai title at least three (3) consecutive years up to the day of nomination as is the interpretation advanced by the Respondent.
  4. The repealed section 8(1)(e) was very clear the three years is specific to the monotaga not the matai title. It is the same with current section 8(1)(d). If the monotaga was to be rendered to the matai title that is registered for at least three years, then section 8(1)(d) in relation to monotaga should have read, “Has rendered monotaga in respect of a matai title that has been registered for not less than three years prior to nomination,” or words to that effect.
  5. Section 8(1)(c) and 8(1)(d) of the Act read in its plain and ordinary meaning, in the context of the whole Act, and in the specific context in which these words appear requires that:[15]
    1. The intending candidate is the holder of a matai title for the Constituency he or she intends to run (s.8(1)(c)); and
    1. Has rendered monotaga in respect of the registered matai title in the constituency the person intends to represent:
      • (i) Within a village in the constituency he or she intends to run; and
      • (ii) For a consecutive three (3) years ending on the day in which the nomination paper is lodged with the Respondent.

(iii) 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:
  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. 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 specifically to monotaga under section 8(1)(d). The three (3) year requirement is to monotaga not the matai title.
  6. The Explanatory Memorandum is consistent with the literal interpretation of section (8)(1); an interpretation that captures the true intention of Parliament 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; is 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.

(iv) 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 declaration 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 years up to the day of nomination.
  4. The ‘forms’ conform with the requirements of the law that the three (3) years is specific to the monotaga and not to the registration of the matai title. The ‘forms’ assist to confirm the true intention and spirit behind section 8(1)(c) and (1)(d), that one must have rendered at least 3 years monotaga to his registered matai title within the village the registered matai title is from.
  5. The affidavit of Mauga Fetogi Vaai for the Electoral Commissioner as well as submissions of Counsel for the Electoral Commissioner accepted that the Applicant, Su’a Samuelu Su’a satisfied the requirements in section 47(2). We agree.
  6. For the sake of completeness it is appropriate that we consider the question whether the applicant, Su’a Samuelu Su’a has satisfied the requirement of ‘monotaga’ under section 8(1)(d).

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

  1. The motion by the Applicant is supported by affidavits from two (2) matai of the village of Samusu and the Sui ole Nuu. Accordingly, the three (3) deponents confirmed the bestowment of title “Su’a” upon the Applicant on 30 July 2016 and since then the Applicant has been rendering monotaga or service to the village of Samusu for at least the last 3 years to the day of his nomination for the General Elections in April 2021.
  2. These affidavits were not challenged and tendered in evidence by consent. The affidavits (i) confirm bestowment of the title ‘Su’a’ upon the Applicant on 30 July 2016; and (ii) that the Applicant has met the three years’ requirement of monotaga up to the day of the Applicant’s nomination on 22 October 2020 pursuant to section 8(1)(d).
  3. We are satisfied that the Applicant satisfies the qualification requirements imposed by section 8 of the Act to run as a candidate in the 2021 general elections.

Conclusion

  1. The Electoral Commissioner does not have authority under section 47(2) to reject any nomination where a person fails to meet the qualifications requirements prescribed by section 8 of the Act.
  2. We find that there is no ambiguity in the provisions of s.8(1)(c) and (1)(d). They are very clear and reflect the true intention behind the legislation.
  3. We reiterate that, 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 paper 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 sections 8(1)(c) and (1)(d).

Orders

  1. The Court make the following orders:

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE ROMA

[1] See Annexure “A” of the Affidavit of Su’a Samuelu Su’a

[2] Affidavit of Mauga Fetogi Vaai at paragraphs [28] & [29]

[3] Refer to footnote [5] bottom of page [8]
[4] See Annexure “A” of the Affidavit of Su’a Samuelu Su’a
[5] The power for the Electoral Commissioner to disqualify an intending candidate under section 8 was expressly removed by Parliament on 23rd September 2020.
[6] Paragraph 13 cites section 8 of the Electoral Act 2019
[7] Transcript, p14
[8] Transcript, p.16
[9] See paragraph [9]
[10] Acts Interpretation Act 2015, section 7(3)(a) and (c)
[11] Acts Interpretation Act 2015, section 7
[12] 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.
[13] Electoral Amendment Act 2000 (No.8)
[14] Refer also to discussions in Tuimauga v Electoral Commissioner of section 8
[15] Acts Interpretation Act 2015, section 7(3)(a) and (c)

[16] Electoral (Forms) Regulations 2019, regulation 4(2)

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