Two Samoan female MPs still await the outcome of legal challenges in order to be sworn in and enter Parliament. Two H.R.P.P. members (Aliimalemanu Alofa Tuuau and Fagasealii Sapoa Feagai) have formally challenged the Speaker for delaying their swearing-in as MPs.
But, Speaker Papali'i Taeu Masepa'u is determined to wait until these Court matters are resolved.
The HRPP opposition deputy leader, Lauofo Fonotoe Meti, has told Newsline Samoa he is hopeful the MPs will attend the next session of parliament towards the end of March.
RNZ Pacific sought an opinion on this issue from Auckland University law lecturer, *Dylan Asafo: who provided legal insights into last year's post-election constitutional crisis.
Auckland University law lecturer Dylan Asafo Photo: RNZ / Cole Eastham-Farrelly
Mr Asafo outlined 2 different legal challenges, one by the 2 MPs against the Speaker for delaying their swearing-in and another by a F.A.S.T candidate who challenges the legitimacy of the calculation process which grants the 2 MPs their seats.
Mr Asafo said of the first challenge:
The two H.R.P.P. members (Aliimalemanu Alofa Tuuau and Fagasealii Sapoa Feagai) are challenging the Speaker for delaying their swearing-in as MPs.
I believe that the Speaker is justified in waiting for the other separate proceeding (regarding the legitimacy of their appointment) to be determined by the Supreme Court before swearing them in.
This is because their appointment is clearly contentious. Also the Court has a constitutional role in resolving these disputes, as well as showing disapproval when relevant parties and actors take contentious courses of action while important matters are before the Court.
Samoa's parliament Photo: RNZ Pacific /Autagavaia Tipi Autagavaia
Of the second challenge, Mr Asafo said:
This is a separate proceeding that the F.A.S.T. candidate (Toomata Norah Leota) is bringing to dispute the legitimacy of the Electoral Commissioner's appointment of the two H.R.P.P. members under Article 44(1A). I believe that the merits of this case are weak and that it is unlikely to succeed.
The F.A.S.T. candidate is arguing that the Electoral Commissioner used the incorrect calculation method to determine who would be appointed when Article 44(1A) was activated and that this error is a reflection of the "ambiguity" of the relevant provisions in Article 44(1B) and Article 44(5), which are quoted below:
(1B) If, following any general election:
(b) less than the prescribed number of women candidates are elected under clause (1), the remaining prescribed number of women candidates (if any) with the highest number of votes shall become additional Members for the purposes of clause (1A).
…
(5) In this Article, unless the context otherwise requires:
…
"Highest number of votes" means the percentage of the total valid votes in a constituency polled by a woman candidate;
The F.A.S.T. candidate then argues that the correct interpretation of Article 44(1B) and Article 44(5) should be that the "Highest number of votes" means the women candidate with the highest number of actual votes should be appointed - which means that they themselves should have been appointed.
In my view this argument is weak and very likely to be rejected because the text of Article 44(5) is not ambiguous or unclear.
The provision unequivocally states that the correct calculation method to follow is to appoint additional women MPs according to "the percentage of the total valid votes in a constituency" and not the actual number of votes as the F.A.S.T. candidate argues.
It is likely that the reason the drafters of the law opted to use percentages rather than the actual number of votes is because electoral constituencies vary in size and the number of candidates standing in different constituencies can vary as well.
Therefore, it is most likely that the Court will dismiss the claim and order for the two H.R.P.P. members to be sworn-in as soon as possible so that Parliament meets the 6 women MP minimum previously determined by the Court of Appeal on 2 June 2021.
*Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland, he holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.