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Leavai v Electoral Court [2021] WSSC 58 (25 November 2021)

IN THE SUPREME COURT OF SAMOA
Leavai v Electoral Court [2021] WSSC 58

MISC 351/21

IN THE SUPEREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

Articles 4, 11, 15, 47 and 70 of the Constitution of the Independent State of Samoa;

BETWEEN:

TUITOGAMANAIA PENIAMINA JUNIOR LEAVAI, of Falealupo and Levili, Samoa

First Plaintiff/Applicant

AND:

FALE KURESA of Falealupo, Samoa;

Second Plaintiff/Applicant

AND:

SALAIVAO PENE of Falealupo, Samoa;

Third Plaintiff/Applicant

AND:

ELECTORAL COURT Supreme Court exercising its powers as the Electoral Court;

First Defendant/Respondent

AND:

ELECTORAL COMMISSIONER appointed pursuant to section 7 of the Electoral Commissioner Act 2019;

Second Defendant/Respondent

AND:

FUIONO TENINA CRICHTON, Member elect for the Constituency of Falealupo;

Third Defendant/Respondent

Coram: Justice Tologata Tafaoimalo Leilani Tuala-Warren
Justice Fepulea’i Ameperosa Roma

Counsel: T Leavai & A Matalasi for the Applicants

S Ainuu for the 1^st & 2^nd Respondents

S Ponifasio for the 3^rd Respondent

Hearing: 25 November 2021
Decision: 25 November 2021

JUDGMENT OF THE COURT

Introduction

1. By a decision delivered on 22 November 2021, the Supreme Court sitting as the Electoral Court disqualified the First Applicant as a candidate for the upcoming by elections for the Territorial constituency of Falealupo.
2. In these proceedings, we are concerned with his Motion to judicially review and stay execution of that decision. Essentially, he seeks from this Court an Order that the judgment of 22 November 2021 be set aside.
3. Given the urgency of the matter, the by election being tomorrow, we heard it on a pickwick basis.

Jurisdiction

4. The first issue that requires determination is whether this Court has jurisdiction to entertain the applications given the clear provisions of section 47(5) Electoral Act 2019 which states:
   • “(5) An order made under subsection (3) is final and is not subject to any review or appeal.”
5. For the First Applicant, it was submitted that the Supreme Court has jurisdiction to review a decision of the Electoral Court. He relies on Articles 4 and 70(2) of the Constitution.
6. Article 4 provides:
   • 4. Remedies for enforcement of rights - (1) Except for a judicial review matters arising from the proceedings in Part IX Land and Titles Courts, any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part. (2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.
7. Article 70(2) states:
   • (2) Except for Part IX Land and Titles Court and without prejudice to any appellate or revisional jurisdiction of the Supreme Court, where in any proceedings before another Court (except the Court of Appeal) a question arises as to the interpretation or effect of any provision of this Constitution, the Supreme Court may, on the application of any party to the proceedings, determine that question and either dispose of the case or remit it to that other Court to be disposed of in accordance with the determination.
8. The First and Second Respondents submit that the Court has no jurisdiction because of the clear wording of sections 47(5) and 121 of the Electoral Act 2019. Counsel submits that whilst the Supreme Court has review powers under Article 4 of the Constitution, they relate to administrative decisions and not decisions of the Courts.
9. The Third Respondent argues that the Court has no jurisdiction to entertain this application for the simple reason that it offends section 47(5) Electoral Act 2019, and that the Applicants’ allegation of constitutional rights breaches is a veiled attempt to get around it.

Discussion

10. The Electoral Act 2019 makes clear Parliament’s intention to ensure finality and certainty in the election of its Members. Such is the rationale behind the provisions of sections 47(5) relating to nominations for candidacy and section 121 in relation to petitions following the elections.
11. The sections provide as follows;
    • 47(5) An order made under subsection (3) is final and is not subject to any review or appeal.
    • 47(3) deals with the qualification or disqualification of a candidate prior to an election.
    • 121. Decisions of the Court to be final:
    • All decisions of the Supreme Court under this Part are final and conclusive and without appeal, and must not be question in any way.
12. The need for finality was also recognized by the Court of Appeal in Vaai v Lene [1996] WSCA 8, where section 117 Electoral Act 1963 (and predecessor of section 121 Electoral Act 2019) was challenged on the basis of an alleged breach of the right to fair trial under Article 9 of the Constitution because it excluded a candidate’s right of appeal. In rejecting the argument, the Court said of the rationale behind s117 as follows:
    • “Section 117 of the Electoral Act is not an unusrovision in l in legislation of this kind. It has its counterparts in similar statutes in other countries. We instance s. 242 of#160;Electoral Act 1993 (s. 368 of the Commonwealectoral Aral Act 1918 (in Australia and s.16 s.169 of the Parliamentary Electorates and Elections Act 1912 (NSW) reasons for such such provisions are clear. Therds toinality of the rehe result o£ an election as soon as p as possible after it is held. Uncertainty about the result of the election for one constituency may causecause difficulties in relation to the proper working of the legislature. Barring further litigation after a final hearing in the Supreme Court avoids what may turn out to be a very long and drawn out process.”
13. Although Vaai v Lene dealt with decisions of the Court in relation to petitions, the same reasoning can be applied to decisions about nominations. The finality of decisions in relation to nominations is crucial to ensuring timely elections.
14. Applying the clear provisions of s47(5) and Vaai v Lene [1996] WSCA 8, we find as submitted by the Respondents that the decision of 22 November 2021 is final and this Court is barred from reviewing that decision.

Fundamental Rights

15. It is not an issue that the Supreme Court nevertheless has the jurisdiction to determine allegations of breaches of fundamental rights provisions under Article 4 of the Constitution. It is on that basis that the First Applicant invites this Court to approach his application.
    • 4. Remedies for enforcement of rights - (1) Except for a judicial review matters arising from the proceedings in Part IX Land and Titles Courts, any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part. (2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.
16. Our determination is limited to the alleged breaches of his fundamental rights under the Constitution.
17. The First Applicant has alleged breaches of his fundamental rights under Part 2 of the Constitution, specifically Articles 9, 11 and 15.
18. In relation to Article 9, the First Applicant submits that it is the content of the decision which is allegedly unfair.
    • 9. Right to a fair trial - (1) In the determination of his or her civil rights and obligations or of any charge against him or her for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice. (2) Nothing in clause (1) shall invalidate any law by reason only that it confers upon a tribunal, Minister or other authority power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person. (3) Every person charged with an offence shall be presumed innocent until proved guilty according to law. (4) Every person charged with an offence has the following minimum rights: Constitution of the Independent State of Samoa 12 (a) to be informed promptly, in a language which the person understands and in detail, of the nature and cause of the accusation against the person; (b) to have adequate time and facilities for the preparation of his or her defence; (c) to defend himself or herself in person or through legal assistance of his or her own choosing and, if the person has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; (e) to have the free assistance of an interpreter, if any doubt exists as to whether the person can understand or speak the language used in Court. (5) No person accused of any offence shall be compelled to be a witness against himself or herself.
19. Article 11 is about freedom of religion. He submits that the decision has restricted his religious activity or practice of monotaga because although he gives under his father’s matafale, the decision has effectively ruled that this way of giving is not a religious monotaga.
    • 11. Freedom of religion - (1) Every person has the right to freedom of thought, conscience and religion; this right includes freedom to change his or her religion or belief, and freedom, either alone or in a community with others, and, in public or private, to manifest and propagate his or her religion or belief in worship, teaching, practice and observance. (2) Nothing in clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that clause in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others, including their rights and freedom to observe and practice their religion without the unsolicited interference of members of other religions.
20. Article 15 is allegedly breached because the decision has resulted in sections 8(1)(d) and 8(5) of the Electoral Act 2019 being discriminatory.
    • 15. Freedom from discriminatory legislation - (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.
    • (3) Nothing in this Article shall: (a) prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law; or (b) prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons. (4) Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independence Day: PROVIDED THAT the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in clause (2) and of any privilege or advantage which has been conferred on any of those grounds.
    • 8. Qualification to run as a candidate in elections: (1) A person is qualified to run as a candidate for elections if that person:
    • (a)...
    • (b)...
    • (c)...
    • (d) has rendered a monotaga in respect of the registered matai title under paragraph (c) - (i) within a village in a constituency which the person intends to run as a candidate; and (ii) for a consecutive three (3) years ending on the lodgement day; and...
    • (5) In this section: “minimum of 3 years” means a person has been in Samoa for at least 305 days in each year for a consecutive 3 year period ending on the lodgement day;
    • “monotaga” means the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional activities, events, function or similar purposes pursuant to the customs of a particular village; “
    • organisation” includes:
    • (a) a Company;
    • (b) a body corporate;
    • (c) a sole trader;
    • (d) a government ministry under the Ministry and Departmental Arrangements Act 2003;
    • (e) a statutory corporation or authority;
    • (f) a public body as defined by the Public Bodies (Performance and Accountability) Act 2001;
    • (g) a trust;
    • (h) a partnership;
    • (i) a joint venture;
    • (j) a religious institution that has been duly registered under the law for that purpose.
    • “village” means a village, from which a Matai title was conferred, within a constituency.
21. The First and Second Respondents argue that the First Applicant has simply not shown a breach of his rights and his issue is with the decision.
22. The Third Respondent submits that the First Applicant’s dissatisfaction with the decision is the real issue but brought under the guise of alleged breaches which are not pleaded and particularised, and it is unclear how his rights were breached.

Discussion

Article 9

23. There is no doubt that the First Applicant deems the decision unfair and is unhappy with it. However this does not mean that his right to a fair trial has been breached. A clear and definite breach must be proved to the satisfaction of the Court. We find that the First Applicant has not established any breach of his right to a fair trial.

Article 11

24. We fail to see how the Court’s interpretation of religious monotaga breaches the First Applicant’s right of thought, conscience and religion, including the freedom to change his religion, or belief, and in public or in private to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Article 15

25. Similarly the First Applicant has not established a breach of Article 15. Article 15(3) clearly states that Article 15 does not prevent the prescription of qualifications for the service of Samoa. Qualification to run as a candidate in an election in section 8 of the Electoral Act prescribes qualification for those who intend to become members of Parliament.
26. The Court of Appeal in In re the Constitution, Mulitalo v Attorney-General of Samoa [2001] WSCA 8 (20 December 2001) stated;
    • First, it must be noted that Article 15(3) fically notesnotes that nothing in Article 15 prevents the prescription of qualification for the service of Samoa. The provisions of Articles 83(e) and 111(1) mean this must include prescribinlifications for Members of s of Parliament. In the clearest possible language, the Constitution removes the ambit of Clause 15 from the subject matter in issue.

Result

27. For the above reasons we make the following orders:
    • (i) The Motion for Judicial Review is dismissed.
    • (ii) The Motion to Stay Proceedings and Execution of Orders is dismissed.
    • (iii) Costs are awarded against the First Applicant in favour of the First, Second and Third Respondents. All parties are to file Memoranda of Costs within 7 days if they cannot agree on costs.

JUSTICE TUALA-WARREN
JUSTICE ROMA