IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

LETOA RITA PA'U
of Motootua and Fusi Safotulafai,\
Businesswoman

And;

PA'U SEFO PA'U
of Motootua and Fusi Safotulafai,
Businessman
Applicants

AND:

ELECTORAL COMMISSIONER
an Officer appointed under the Electoral Act 1963,Mulinuu
Respondent

Counsel: S Wulf for applicants
P Bednall and S Ainuu for respondent

Hearing: 7 February 2011
Judgment: 9 February 2011

JUDGMENT OF SAPOLU CJ

The applicants notice of motion

1.	By an amended notice of motion dated 28 January 2011, the applicants seek a declaratory order whether having regard to s.36 of the Electoral Act 1963 ("the Act"), the Electoral Commissioner ("the Commissioner") has the power or authority to add or put back the names of the applicants on the electoral roll for the territorial constituency of Faasaleleaga No. 2 by way of a supplementary roll after the completion of the 4 year period that the names of the applicants were on the Corrupt Practices List.

The facts

2.	The first named applicant Letoa Rita Pa'u was one of the candidates in the by-election held on 22 September 2006 to elect a Member of Parliament for the territorial constituency of Faasaleleaga No. 2. She polled the highest number of votes in that by-election and was subsequently declared elected as the Member of Parliament for the Faasaleleaga No. 2 territorial constituency. The candidate who polled the second highest number of votes at the by-election filed an election petition to have the election of the first named applicant declared void. At the hearing of the election petition that followed, the election of the first named applicant was declared void by the Supreme Court sitting as the Electoral Court under the Act: see Election Petition re Faasaleleaga No. 2 Territorial Constituency, Papalii Samuelu Petaia v Letoa Rita Pa'u [2006] WSSC 67.

3.	As required by s.119 of the Act, the Supreme Court gave a report dated 14 December 2006 to the Speaker of the Legislative Assembly on the outcome of the trial of the said election petition. Following the report by the Supreme Court to the Speaker, the Commissioner pursuant to s. 32A (1) (b) of the Act, entered the names of both applicants on the Corrupt Practices List on 14 December 2006. As a consequence, the names of the applicants were removed by the Commissionerfrom the roll for the territorial constituency of Faasaleleaga No. 2 as required under s.32 (1) (d). 

4.	In terms of s. 32 A (2) of the Act, the Commissioner is required to remove the name of every person on the Corrupt Practices List from that List at the expiration of 4 years from the date of the report by the Supreme Court to the Speaker in respect of which the name of such person was entered on the Corrupt Practices List, unless sooner ordered by the Supreme Court. For the applicants, this effectively means that their names could not be removed from the Corrupt Practices List until 14 December 2010 unless sooner ordered by the Court. There has been no such order by the Court and the Court was informed from the bar that the names of the applicants were removed from the Corrupt Practices List on 14 December 2010.

5.	The next general election for Samoa has been set for 4 March 2011. Pursuant to s.34 of the Act, as amended, the Commissioner temporarily closed all rolls for the forthcoming general election on 4 November 2010. At the time of the temporary closure of the rolls, the 4 year period for which the names of the applicants had been entered on the Corrupt Practices List on 14 December 2006 had not expired. As a result, the names of the applicants could not be put back on the roll for the territorial constituency of Faasaleleaga No. 2 when all the rolls were temporarily closed on 4 November 2010.

6.	According to affidavit of the Commissioner which was filed on 2 February 2011, the first named applicant complained to him about 2 or 3 November 2010 as to why she could not lodge an application for registration of her name on the roll for her territorial constituency. After consulting with his staff, the Commissioner was informed that the name of the first named applicant was on the Corrupt Practices List and that is why she was refused registration on the roll. The same apparently applied to the second named applicant.

7.	 Consequently, the applicants have brought the present proceedings seeking a declaratory order whether in terms of s.36 of the Electoral Act 1963, the Electoral Commissioner has the power or authority to put back their names on the electoral roll of the territorial constituency of Faasaleleaga No. 2 by way of a supplementary roll after the completion of the 4 year period that their names were entered on the Corrupt Practices List. In other words, the applicants are asking the Court whether in terms of s.36 of the Act, the Commissioner has the authority to restore the names of the applicants to the roll for their constituency after their names were removed from the Corrupt Practices List on 14 December 2010, notwithstanding the temporary closure of the roll on 4 November 2010.

The relevant provisions of the Electoral Act 1963

8.	Section 32 of the Electoral Act 1963, as far as relevant, provides:

"(1) The Commissioner shall, at any time except as provided in subsection (3), remove from any roll:

"(d) The name of every person whose name is entered on the Corrupt Practices List made out for that constituency or for the individual voters."

(2) Notwithstanding anything in this Act, the Commissioner, on being satisfied that the name of any person has been omitted or removed from any roll by mistake or clerical error, or through false information, may restore the name of that person to the roll at any time.

(3) Except as provided in subsection (2), it shall not be lawful for the Commissioner to enter on or remove from any roll the name of any person after the date fixed for the temporary closing of the roll and before the day following the polling day in connection with which the roll has been closed.

(4) If the Commissioner offends against the provisions of this section he or she shall be liable to a fine not exceeding 1 penalty unit for every name improperly entered on or removed from the poll.

9.	Section 32 A of the Act, as far as relevant, provides:

"(1) Where it is proved before the Commissioner that any person who is registered or who applies for registration as an elector or voter has within the immediately preceding period of 4 years:

(a)	…
(b)	Been reported by the Supreme Court in its report on the trial of an election petition to have been guilty of a corrupt practice.

"the Commissioner shall enter the name, residence, and description of that person and particulars of the conviction or report on a list called the Corrupt Practices List.

"(2) The Commissioner shall remove the name of every person from the Corrupt Practices List at the expiration of 4 years from the date of the conviction or report in respect of which his or her name is entered on the list, or sooner if so ordered by the Supreme Court."

10.	Section 34, as amended, provides:

"(1) In every year in which a general election is to be held, all rolls shall be temporarily closed on a date to be fixed by the Commissioner which shall not be less than four (4) months before the last possible date for general elections, and after such date no name shall be added to the roll to which it relates until after that election PROVIDED that, despite section 25D, for electors and voters turning 21 years of age within four (4) months up to polling day, their names may be added to the rolls if they apply for registration before the four (4) months period preceding polling day.

(2) …

(3) The Commissioner shall give public notice of the date the roll or rolls will close at least 15 days before the date so fixed to close the roll or rolls."

11.	Section 25 D provides:

"The Commissioner shall not at any time in the period that the roll is temporarily closed, register any application as an elector or voter that the Commissioner receives after 4pm on the day before the commencement of that period."

12.	In terms of s.43, the Commissioner can be liable to a fine not exceeding one penalty unit if he knowingly and wilfully does anything contrary to the provisions of certain Parts of the Act which include Part V containing s. 25D.

13.	Section 36 upon which the applicants amended motion for a declaratory order relies provides:

"(1) The Commissioner may from time to time prepare supplementary rolls containing names added to any roll after the printing of the main roll and an indication of names removed from the main roll, and may cause the same to be printed, and every supplementary roll shall be deemed to be a part of the main roll to which it refers.

"(2) The names in any supplementary roll shall be numbered consecutively, starting with the number next higher than the last number on the last printed roll for electors or voters, whether main or supplementary."

14.	Because of the submissions by counsel for the applicants, I should also refer to s.35 which, as far as relevant, provides:

"(1) From time to time, the Commissioner shall cause the roll for each constituency to be printed, containing the names, numbered consecutively in alphabetical order according to the English alphabet, of all persons whose names are lawfully on the roll. The roll for each constituency shall be in form No. 3 and shall be issued under the hand of the Commissioner.

"(2) ….

"(3) The printed rolls so formed, signed, added to, or altered from time to time as herein provided, shall for the time being be the electoral and individual voters rolls for Samoa".

Submissions by counsel

15.	It was submitted by counsel for the applicants that the supplementary roll for a territorial constituency is still open when the main roll for that constituency is closed because the final printing of the main roll is done after the temporary closing of the rolls on 4 November 2010. The Commissioner may also make additions, removals and corrections onto the supplementary roll when the main roll is temporarily closed which means that the supplementary roll is still open to allow these changes pursuant to s.36 of the Act.

16.	It was then acknowledged in the submissions by counsel for the applicants that s.36 does not provide the Commissioner with the power or authority to accept and register any new applications except applications by those people who turn 21 years old within the four months before polling day pursuant to s.34.

17.	It was then submitted by counsel for the applicants that if the Commissioner can add the names to the rolls of such persons who may turn 21 years old before polling day after the temporary closing of the main roll, then the Commissioner should also have the power or authority to add names removed from the Corrupt Practices List after the main roll was temporarily closed.

18.	Counsel for the respondent on the other hand submitted that the declaration sought on behalf of the applicants is contrary to the clear terms of the relevant provisions of the Act. Section 34 (1) is quite clear that in every year in which a general election is to be held, all rolls shall be temporarily closed from a date fixed by the Commissioner, which date shall not be less than 4 months before the last possible date for the general election, and after the temporary closure of the rolls no name is to be added to the rolls until after the election. The proviso to s.34 (1), in effect, provides that the names of electors and voters, who turn 21 years of age between the closing of the rolls and polling day, may be added to the rolls only if they apply for registration before the 4 months period preceding polling day.

19.	Counsel for the respondent also referred to s.25 D which forbids the Commissioner from receiving any application for registration by an elector or voter during the period the rolls are temporarily closed. This is reiterated in s.32 (3) which provides that it shall not be lawful for the Commissioner to enter on or remove from any roll the name of any person after the date fixed for the temporary closing of the roll. The exceptions to this prohibition provided in s.32 (2) are not applicable in the present circumstances.

20.	Counsel for the respondent then referred to s.32 (4) which makes it an offence punishable with a fine for the Commissioner to improperly enter on or remove from any roll any name.

Discussion

21.	As earlier mentioned, the first named applicant was elected Member of Parliament in a by-election held on 22 September 2006 for the territorial constituency of Faasaleleaga No. 2. Her election, however, was subsequently declared void by the Supreme Court sitting as the Electoral Court following the trial of an election petition brought by the candidate who pulled the second highest number of votes in the by-election. The Supreme Court then gave a report dated 14 December 2006 on the trial of the said election petition to the Speaker of the Legislative Assembly as required under s.119 of the Electoral Act 1963.

22.	In terms of s.32A (1) (b) of the Act, the Commissioner is required to enter on the Corrupt Practices List the name of any elector or voter who is reported by the Supreme Court in its report to the Speaker to have been guilty of a corrupt practice. Pursuant to that provision, the Commissioner entered the names of the applicants on the Corrupt Practices List.

23.	Under s.32 (1) (d), the Commissioner is required to remove from any roll the name of every person that is entered on the Corrupt Practices List. Pursuant to that provision, the Commissioner removed the names of the applicants from the roll for the territorial constituency of Faasaleleaga No. 2. The combined effect of s. 32 (1) (d) and s.32A (1) (b) was that the Commissioner removed the names of the applicants from the electoral roll of the territorial constituency of Faasaleleaga No. 2 when their names were entered on the Corrupt Practices List.

24.	In terms of s.32A (2), the name of every person that is entered on the Corrupt Practices List will remain on that List until the expiration of 4 years from the date of the report by the Supreme Court to the Speaker. At the expiration of 4 years, the Commissioner is required to remove the name of every such person from the Corrupt Practices List. As the date of the report by the Supreme Court was 14 December 2006, the Commissioner could not have removed the names of the applicants from the Corrupt Practices List until on or about 14 December 2010 which was the end of the 4 year period from the date of the report by the Supreme Court.

25.	The next general election has been set for 4 March 2011. Under s.34 (1) of the Act, as amended by the Electoral Amendment Act 2009, all the rolls for a general election shall be temporarily closed on a date to be fixed by the Commissioner. Such date shall not be less than 4 months before the last possible date for a general election. As the next general election will be held on 4 March 2011, the Commissioner, pursuant to s.34 (1), fixed 4 November 2010 as the date for the temporary closing of all rolls.

26.	Section 34 (1) further provides that no name can be entered on the roll for any constituency after the date on which the rolls are temporarily closed until after the election. The proviso to s. 34 (1) does not apply in the present circumstances.

27.	The problem for the applicants is that when the rolls for the forthcoming general election were temporarily closed on 4 November 2010, their names which had been entered by the Commissioner on the Corrupt Practices List pursuant to s.32 A (1), and removed from the roll for their constituency pursuant to s.32 (1) (d), were still on the Corrupt Practices List and therefore continued to be removed from the roll for their constituency when the rolls were closed on 4 November 2010. Their names could not be removed from the Corrupt Practices List until the expiration of the 4 year period from the date of the report by the Supreme Court to the Speaker. As the 4 year period did not expire until 14 December 2010, the names of the applicants were not removed form the Corrupt Practices List until that date. By that time, the rolls for the general election had been closed for about 5 ½ weeks since 4 November 2010.

28.	In addition to s.34 (1), s.32 (3) of the Act further prohibits the Commissioner from entering on or removing from any roll the name of any person after the date fixed for the temporary closing of the rolls and before the day following polling day. Furthermore, s.25 D prohibits the Commissioner from registering during the period any roll is temporarily closed, any application for registration as an elector or voter that is received after 4pm on the day before the commencement of that period. It is therefore emphatically clear that the Commissioner must not enter or register on the roll for any constituency any new name during the period the rolls are closed.

29.	This is re-emphasised in s.32 (4) which makes it an offence punishable by a fine for the Commissioner to enter on or remove from the rolls any name contrary to the provisions of s.23. Section 43 also makes the Commissioner liable to a fine if he knowingly or wilfully does anything contrary to the provisions of certain specified Parts of the Act which include Part V containing the various provisions of the Act referred to in this judgment.

30.	There are exceptions to the prohibitions imposed on the Commissioner in ss.25D, 32 (3) and 34 (1) not to enter on or remove from the rolls any name during the period that the rolls are closed. These exceptions are provided in s.32 (2) and the proviso to s.34 (1). Section 32 (2) provides that notwithstanding anything in the Act, the Commissioner, on being satisfied that the name of any person has been omitted or removed from any roll by mistake or clerical error, or through false information, may restore the name of that person to the roll at any time. The proviso to s.34 (1) provides that notwithstanding s.25 D, the names of the electors and voters who will turn 21 years of age within 4 months of polling day, may be added to the rolls if they apply for registration before the 4 months period preceding polling day. However, none of those exceptions applies in the present circumstances.

31.	It was argued for the applicants that because s.36 (1) provides that the Commissioner may from time to time prepare supplementary rolls containing names which have been added to any roll after the printing of the main roll and names removed from the main roll, the supplementary roll is still open when the main roll is temporarily closed. This is because the final printing of the rolls for the forthcoming general election is, in practical terms, to be done after the closing date for the rolls which was 4 November 2010.

32.	I am not able to accept this argument for the applicants. Under s.35 (1), the Commissioner, from time to time, shall cause the main roll for each constituency to be printed and under s.36 (1) the Commissioner may from time to time prepare supplementary rolls. But the printing of the main roll and the preparation of the supplementary rolls are different matters from the question of temporary closing of the rolls and are dealt with in different sections of the Act.

33.	Furthermore, s.34 (1) provides in clear terms that in every year in which a general election is to be held, "all rolls shall be temporarily closed on a date to be fixed by the Commissioner … and after such date no name shall be added to the roll to which it relates until after that election." The words "all rolls" in s.34 (1) must include the main roll and every supplementary roll.

34.	To accede to the argument for the applicants would make s.34 (1) subject to s.36 (1) but there is nothing either in s.34 (1) or in s.36 (1) which states that what is said in s.34 (1) is to be subject to what is said in s.36 (1). If that had been the intention of Parliament, there should have been no difficulty for Parliament in expressly providing that s.34 (1) is subject to s.36 (1), or that s. 36 (1) creates an exception to s.34 (1).

35.	I am also not able to accept the submission by counsel for the applicants that if the Commissioner can add to the rolls, in terms of the proviso to s.34 (1), the names of such persons who may turn 21 years old before polling day after the temporary closing of the rolls, then the Commissioner should also have the power or authority to add names removed from the Corrupt Practices List after the main roll was closed on 4 November 2010. Whether or not that should be so, the fact of the matter is that the proviso to s.34 (1) does not give the power or authority to the Commissioner to add to the main roll names removed from the Corrupt Practices List after the main roll was closed. What should be the position under the Act is, of course, not the same as what is the position under the Act. If the names of the applicants are to be restored to the main roll during the closing of the rolls, they would have to come within the exceptions provided in the Act. But they do not. 

36.	Counsel for the applicants posed the question as to where the names of the applicants should go when they were removed from the Corrupt Practices List. In my respectful view, the real question is whether the names of the applicants can be entered on the rolls while the rolls are closed. To that question the short answer is no, unless the names of the applicants come within one of the exceptions which they do not. Like the name of every other elector or voter which was not on the rolls when the rolls were closed, the names of the applicants which were not on the roll for their constituency when the rolls were closed, cannot be added on to the rolls while the rolls are closed.

Conclusions

37.	From the above discussion, I have come to the following conclusions on the amended motion by the applicants for a declaration:

(a)	In terms of s.36 of the Electoral Act 1963, the Commissioner has no power or authority to add or put back the names of the applicants on to the electoral roll for the territorial constituency of Faasaleleaga No. 2 by a way of a supplementary roll after the completion of the 4 year period that the names of the applicants were on the Corrupt Practices List.

(b)	The answer to the question posed in the applicants amended motion for a declaration whether the Commissioner under s.36 has the power or authority contended for by the applicants is therefore No.

2. Counsel to file submissions as to costs in 7 days.

CHIEF JUSTICE

Solicitor
Meredith's Law Office for applicants
Attorney General's Office, Apia, for respondent