Lingering questions hold back democracy

SAMOA OBSERVER – By The Editorial Board, 26/04/2021

Samoa has long enjoyed a reputation as a relative “bright spot” for democratic stability in the Pacific region.

Our democracy is not without its flaws – significant flaws – particularly relating to the transparency of our Government and the independence of our institutions which have often been remarked upon by international bodies. 

But in an essay for the Sunday Samoan a former Attorney General of this nation, Taulapapa Brenda Heather-Latu, alleged we are witnessing a national transition to something else altogether: a concerted attempt to override the will of the Samoan people (“Beware of Things that go Bump in the Night….”).

Taulapapa, a forensic legal mind with direct knowledge of how the machinery of Government in Samoa turns, says this is an “administrative coup”.

There is a legal interpretation of the constitution at play in this case which must be left to finer minds than ours inside the courtroom. 

But Taulapapa’s essay brings under scrutiny the actions of the nation’s Electoral Commissioner, Faimalomatumua Mathew Lemisio. And it is these actions that must be explained and remedied as a starting point for safeguarding our democratic reputation. 

Once ballots had been counted Faimalo stated that as five women had achieved election to the Parliament there was no need to activate a constitutional mandate that their numbers be increased to reach 10 per cent. 

But a little over one week after declaring that the quota would not need to be activated, the Commissioner signaled that he was on the precipice of changing his mind, after seeking legal advice – we later learned – from the Attorney General’s Office.

“We picked up this issue and have sought a second opinion on our position,” Faimalo told the Samoa Observer. 

On the very same day that the Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei said he was still of the belief that no extra seat would need to be added to Parliament.  

“My understanding after the official results have been declared is we need five female MPs, so there is no need for the ten per cent [measure],” he said.

And then, in what could be interpreted as a nod to the fact that the commissioner lacked confidence in the due diligence and legal basis for making such a call on his own, said:

“In regards to your question regarding seeking an interpretation from Court given that this specific issue is yet to be tested in Court, there is a possibility that it could end up in Court for interpretation.

Faimalo must have foreseen what was to follow.

The Parliament was to be expanded, ostensibly for reasons of a ten per cent mandate. But the effect on our democracy and recent election adding to the Parliament a candidate from the Human Rights Protection Party (H.R.P.P.) was tectonic. 

One of the most discrediting aspects of the commissioner’s declaration is the undue haste with which it was made, which made the announcement completely jar with the gravity of its contents.

A decision that would, as one senior lawyer Fiona Ey put it, plunge Samoa into a “constitutional crisis” was made about 9.30 pm on Facebook. 

There is very little democratic gravitas about such timing and such an outlet. 

Then the other shoe dropped. The Office of the Electoral Commissioner release was issued less than 12 hours before Tuala Iosefo Ponifasio announced that he was joining Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.).

Tuala’s long-awaited announcement had been expected to give the opposition party the best chance of forming a Government on the floor of the house. But it had already been neutralised by what was an announcement whose timing was only growing more dubious in retrospect.

As to why he chose to make the announcement in the fashion that he did, Faimalo, who reminded us often in the lead-up to the election that he follows policy and law to the letter, has offered no explanation.

Taulapapa has a theory.

“The announcement was so deliberate and so obviously intended to derail the Independent Member’s announcement the next day, it simply raised and created suspicion,” she said.

“Unlike all the other OEC announcements) which was publically released on [the O.E.C. Facebook page] which was unworthy of the importance, magnitude and impact of the decision- all suggesting a rushed, ill-thought-out and underprepared response to a Direction.”

Her analysis is powerful.

She further argued that for the sake of benefits such as ensuring the continuation of one’s job after the election the decision was made in order to please the powers that be in the long-dominant H.R.P.P.

“To change the outcome of a national election by the exercise of power by an unelected official is an extraordinary act at any time,” she said.

“[The decision] debases us all.

“[It is an] embarrassment that Samoa is sliding into an ocean of international condemnation.

There are so many unanswered questions about the conduct of the electoral commissioner, quite aside from the complicated legal basis for his decision, on which the Supreme Court will decide.

But in the wake of having an Electoral Act amended after a legal challenge late last year, the issue of the need to have interpretations tested in court cannot have been far from the commissioner’s mind. 

What is clear is that the public view of the independence of the Office of the Electoral Commissioner has been severely damaged. That already is an immense blow to Samoa’s democracy.

The caretaker Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, has defended the decision full-throatedly. For the Office of the Electoral Commissioner, this does not help matters one bit.

The gauntlet has been laid down.

If he wants to ensure that he emerges from this election with his credibility and reputation for independence intact the only option available to the Electoral Commissioner is to convene, with the same urgency that he expanded Parliament, a completely open press conference. Until then, there too many questions lie unanswered. By The Editorial Board, 26/04/2021

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