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COMMISSION OF INQUIRY
REPORT ON

 FURTHER AMENDMENTS

TO THE ELECTORAL ACT 1963

 24 MAY 2000

APIA, SAMOA

 

TABLE OF CONTENTS

 

1.

PREFACE

2.

INTRODUCTION

3.

ELECTOR REGISTRATION

4.

THE ELECTORAL ACT 1963

5.

THE SYSTEM AT WORK

6.

TIME FOR CHANGE

7.

GENERAL ID CARD

8.

RESIDENCE GIVEN INADEQUATE WEIGHT

9.

NEW VANTAGE POINT

10.

APIA AND ENVIRONS

11.

TERRITORIAL CONSTITUENCIES IN THE URBAN AREA

12.

FREEHOLD/LEASEHOLD/NEW SETTLEMENT SETTLERS

13.

INDIVIDUAL VOTERS ROLL

14.

CHANGING CONSTITUENCIES

15.

CHIEF ELECTORAL OFFICER AND CHIEF RETURNING OFFICER

16.

CITIZENS NOT QUALIFIED TO REGISTER

17.

PARLIAMENT ARIANS AND SEX

18.

ELECTION PETITIONS – 50 PER CENT THRESHOLD

19.

ILLEGAL PRACTICE v. GLASS OF WATER

20.

CLEANING THE ROLLS

21.

REGISTRATION FORMS NO. 1(A) AND 2

22.

COMPULSORY REGISTRATION AND COMPULSORY VOTING

23.

ELECTION PETITIONS HEARING

24.

CONVICTIONS/DISQUALIFICATIONS/CORRUPT PRACTICE

25.

AKNOWLEDGEMENT

Golf Gear 

 

PREFACE:

 

The Terms of Reference For Our Commission of Inquiry Were As Follows:

 

1.                   To consider the qualifications for the registration of electors in constituencies and the constituency of their application with the faamatai.

 

2.                   To review the grounds that entitle electors to change constituencies from time to time.

 

3.                   To consider the feasibility of expanding the utility of the ID card to other purposes.  To look at overseas practice in this area if appropriate.

 

4.                   To consider the appropriateness of separating the various functions pertaining to political elections to enhance confidence in the electoral process.

 

5.                   To consider any other aspect of the Electoral Act that in the view of the Committee would assist Government’s desire to protect the integrity of the Electoral process in Samoa and to facilitate the proper conduct of electoral choice in the selection of Parliamentary representatives.

 

6.                   To take as a major guide the resolutions and the discussions of Parliament in its sitting 11 to 14 April 2000 on the Report of the Parliamentary Electoral Act Review Committee.

 

7.                   To report to Cabinet on 24 May 2000 so that a Bill reflecting the recommendations of the Commission could be prepared for Parliamentary consideration in June 2000

 

When advertising our Terms of reference in Newspapers, on Television and Radio, we invited members of the public to present views to the Commission or to attend any of the sessions in which it heard witnesses.

 

Thirty-seven witnesses, some with prepared submissions appeared before us.  One submission was simply forwarded when its writer was unable to make a personal appearance.  We also received via facsimile a circular submission from Samoans residing overseas.  A central element in the submission was objection to the proposed 3 year residential qualification for candidates standing for Parliament.  The number of signatures from the various centers were as follows:

 

New Zealand

No. of Signatures

Wellington

251

Auckland

431

 

 

Australia

 

Sydney

355

Brisbane

192

Melbourne (faxed transmission received incomplete)

 

 

 

INTRODUCTION:

 

It became apparent to our Commission almost from the outset that the basic system for the registration of electors and voters is in need of fundamental overhaul.  The system was premised originally on matai suffrage for the territorial constituencies.  Now that there is adult suffrage for the entire population, there is very good reason to ponder well the warning issued on highest possible authority almost two thousand years ago about new wine and old bottles.

 

 

 

The Commission would have liked to reflect less hurriedly on the entire Electoral Registration system and the important issues that are pertinent to it.  Be that as it may, we give here our observations and conclusions on the particular matters we were given to examine.  We venture also with great respect to comment on selected other matters that appear to us to be begging for comment.

 

 

ELECTOR REGISTRATION:

 

The existing registration system sets out to construct electoral lists from matai belonging to the Territorial Constituencies and those linked to matai by blood and marriage.  It takes in also those who supposedly are linked to the villages I ways other than the principle mode of kinship and those who reside in electorates but are not linked to their matai by kinship.

 

The system does this by way of an elaborate set of criteria.  The kinship criterion arbitrarily circumscribes blood connection while criteria for other phenomena are expressed in wide and general terms.  The registrar is left to do a balancing act in the application of these criteria to achieve two important objectives.  One the one hand, there is the obvious requirement to ensure that registered electors are legitimate electors for the constituencies.  On the other, there is the need to ensure that a citizen is not denied the right to vote in an imminent election.  In the rush and workload pressure that inevitably develops at election time, this becomes an extremely tall order.

 

 

THE ELECTORAL ACT  1963:

 

The existing provisions of the Electoral Act enables the individual to register as an elector in any of the following ways:

 

*         If he/she (hereafter he) is a matai he is restricted to the constituency to which his matai title belongs.  Should he hold more than one matai title, he is obliged to choose one under which to register.

 

*         An untitled adult may register in any constituency to which a matai title belongs if that matai title is or was held by any of the following relatives:  grandparent; a parent; a brother or sister (except if title held was through sibling’s spouse); a spouse.

 

*         If an individual does not qualify for registration under any of the above criteria, or if he chooses to set aside such qualification he may register in an electorate in which he can show to the satisfaction of the Registrar, he renders ‘tautua’.  The ‘tautua’ for these purposes extend beyond the ‘matai and aiga’ to cover service to a church, village council, or to “any community project or work-related activity in the village”.

 

*         An individual who fails to qualify under any of the above criteria may register in a constituency in which he is a bona fide resident.

 

*         Anyone who does not qualify under any of the above, and who has never resided in Samoa may register in a constituency in which the Registrar is satisfied, he has family ties.  Parliament has resolved to eliminate this criterion.  We comment on this later.

 

The Act’s multi-levelled criteria are arranged in the form of a stepladder with the loftiest criterion, the possession of a matai title at the top.  Where one lives, is the least important criterion and is placed at the bottom.  Starting from the top of the ladder, the system ostensibly locks the individual into the first rung on which he finds a criterion foothold that applies to him.  Seemingly, he can proceed down no further.  This is an illusion.  There is effectively no systemic regulation of descent.  Apart from the very top rung, the choice to rely on any of the remaining slots, to register in a particular electorate, is very much an open matter over which the Registrar exercises sole discretionary power.  Objections to the exercise of the discretion are determinable by a District Court Judge.

 

 

THE SYSTEM AT WORK:

 

While the rationale for the system and its various levels of criteria is understandable and consistent in an important way with the preamble of the Constitution, the system has not worked well.  We do not attempt a listing of all its shortcomings.  We simply point to a few that stand out.

 

Citizens are presented with several alternative electorates in which registration is possible, giving rise to potential fluidity in the electoral body.  This fluidity is such that Samoa is probably the only country where with regard to voters, rather than taking the electorate as a candidate finds it, the candidate by his own efforts can create a significant part of his electorate.  In itself, this may not be objectionable.  Candidates after all have equal freedom, though perhaps not equal capacity, to create.  The very real prospect under the system, however, of absentee voting trouncing perceived resident will, is inherently undesirable and potentially dangerous.

 

The relationships and linkages that the elector is supposed to prove in order to register and the means by which this has had to be done are such that adequate assurance of the faithful application of the system to the satisfaction of the public is difficult to guarantee.

 

The wide range of criteria and the flexibility of application built into the system presumably were meant to facilitate the making of a genuine and legitimate registration by an elector.  In its workings, however, it has facilitated the designs of political candidates more than anything else.  This has been so particularly, because elector registration for the most part has been candidate-driven and initiated.  This we believe has been a most unfortunately feature of past experience.

 

TIME FOR CHANGE:

 

In our  view, every effort should be made to change the existing situation wherein the contrivances of a political candidate can be decisive in an election.  Compulsory registration coupled with on-going outreach efforts by the authorities to register people will contribute to positive change by making registration a matter of personal duty.  Furthermore, if these measures are supported by on-going elector education and awareness programmes, we believe that the emergence of both sound electoral rolls and a greater sense of civic responsibility will eliminate the need for electoral ID cards.  These cards after all are needed only when there is expectation of dishonest voting.  The existence of a voting identification card in a country with such a small population as Samoa is not a flattering reflection on our ability to be honest in electoral matters.  None of our neighbours including Australia and New Zealand has cards.  The possession by an individual of multiple ID cards reportedly has been possible under the system that we have.  The ID card, we believe, has become a merchantable item that has made a mockery of the most important part of democratic governance.

 

GENERAL ID CARD:

 

It could well be worthwhile to produce a general purpose national ID card that provides authentic positive identification.  We support the establishment of such an important documents on simple but sound lines under the auspices of the Justice Department.  We do not support making it primarily an electoral ID card although it would be invaluable in positively identifying people during balloting should this be necessary.  The ID card could perhaps be made available to people 18 years and over.  The possession of the ID card itself could be a positive supplement to other influences on Samoan youth to develop a consciousness of approaching maturity and the assumption of civic responsibility.

 

RESIDENCE GIVEN INADEQUATE WEIGHT:

 

We think that relegating residence to the periphery is a fundamental design flaw in the legislated elector registration system.  The matai as an individual is the centrepiece of the current system and the starting point of the Electoral Roll.  For the non-matai, immediate personal relationship to a matai within three generations is the front door key to inclusion in the Roll of Electors. 

 

Attachment to the physical territory of the constituency is initially irrelevant to the determination of eligibility to be registered.  It becomes relevant and useable only when one cannot establish a kin connection to a matai within the confines prescribed in the Electoral Act.  When the consideration of a prospective elector descends to the point below the kinship threshold, the requirements applied become so general and wise that anyone with a little determination and ability to maintain a straight face we suspect, would qualify.  From all accounts, it is so easy that the arbitrary restriction on kinship links to Matai and indeed, the whole fuss about blood connection become ludicrous.  What is the point of a front door key when the back door is wide open?

 

The ultimate consequence of the existing approach to elector registration, is the fact that any Samoan who is not a matai is totally free to choose an Electorate on the basis of his blood and marriage connections without any reference whatsoever to where he lives.  What is more, there invariably are several alternative constituencies available to choose from.  Flexibility and fluidity of this magnitude is probably unknown anywhere else and facilitates the well-known heavy elector traffic to and fro, in response to the urgings of candidates.  Without doubt, permissible flexibility and fluidness under the system are central elements to be addressed.

 

 

NEW VANTAGE POINT:

 

We think there is need to look at what we are trying to achieve from a different vantage point.  From the outset, the focus in our view ought squarely to be on the “alaalafaga” or “afioaga” and not the individual matai.  We feel that conceptually, the registration system should capture and preserve the framework of the traditional social community of the “alaalafaga” or “afioga” based on its customary lands but centred in every case on the Alii and Faipule (matais) and extending outwards to embrace those over which the Alii and Faipule exercises authority and extends protection.  In the electoral context the conceptual framework translates into the vote for the Alii and Faipule itself both in its resident and non-resident components; and for non-matai who are linked to the Alii and Faipule by blood or marriage and who reside in the village.  It facilitates the vote also for others who, though not linked to the Alii and Faipule by kinship, nevertheless are accepted residents on a permanent basis within village customary land boundaries.  This core group should embrace the entire resident population of a village plus all of its non-resident matai who are not in effect resident matai of other traditional “alaalafaga” or “afioaga” through other matai titles they happen to hold.  The addition to this core group of two categories of people, would complete the Electoral Roll for a particular village.

 

(i)                  A non-resident matai not already on the constituency Roll of Electors who chooses to stand for Parliament in the constituency plus permitted family members of that matai.

 

(ii)                Untitled individuals with authentic kinship connection to the Alii and Faipule who reside on freehold land or other non-customary land.

 

 

APIA AND ENVIRONS:

 

Witnesses discussed with the Commission, problems, needs and observations relating to urban development and the expansion of new settlements.  In the process, three clear messages came through –

 

*         There is anxiety over ballooning roles in the territorial constituencies located in the town area. 

 

*         Many urban settlers are comfortable with retaining connections with the territorial constituencies.  There is also strong desire on the part of others to be represented by candidates who can focus on urban and other issues that affect their lives.

 

*         There is widespread conviction that continuation of the Individual Voters Roll is not justified.

 

 

 

TERRITORIAL CONSTITUENCIES IN THE URBAN AREA:

 

Electors that have been registered on the strength of residential and other criteria have swelled the Electoral Rolls of the Vaimauga and Faleata territorial constituencies.  These electors are not Vaimauga or Faleata people by heritage and there is some concern about the selection of political representation for these traditional districts falling out of proper hands.

 

We sympathise with these concerns in the belief that Vaimauga and Faleata Districts are entitled to their traditional identities and to the same communal exclusivity that is enjoyed in other territorial constituencies.  We think it appropriate to effect in Faleata and Vaimauga the proper contextual realities of the formula that governs elector registration in all other territorial constituencies.  As stated earlier, we suggest the Registration System “to capture and preserve the framework of the traditional social community of the “alaalafag” or “afioga” based on its customary lands but centred in every case on the Alii and Faipule and extending outwards to embrace those over which the Alii and Faipule exercises authority and extends protection

 

We think it unfortunate that the rolls of Faleata and Vaimauga have been opened to people on the basis of so-called residence.  This development has vitiated the integrity of these constituencies as social and political organisms possessed of ancestral traditions and essence that are encapsulated in “faalupega”.  Demographic incursion must detract from the in-house nurturing of these things.

 

We are recommending that for elector registration purposes, “residence” in Faleata and Vaimauga is to mean residence of existing customary lands of the Constituencies.  This approach makes it possible to maintain parity for Faleata and Vaimauga as customary communities, with the rest of the country’s territorial constituencies.

 

FREEHOLD/LEASEHOLD/NEW SETTLEMENT SETTLERS:

 

Under our proposals, this category would not be eligible to register as electors for Vaimauga and Faleata constituencies unless they have authentic kin connections to the “afioaga” and “alaalafaga” in these constituencies.  Those without such connections would be eligible to register in territorial constituencies in Samoa to which they can establish legitimate kin connections.  Some would, of course, be eligible to register in the Individual Voters Roll.  We comment below specifically on the Individual Voters Roll.

 

INDIVIDUAL VOTERS ROLL:

 

We think there is overwhelming agreement among members of the public that the Individual Voters Roll is no longer justified.  It was suggested to us to reallocate the two Individual Voters’ parliamentary seats to Faleata and Vaimauga as the Electoral Rolls of these Constituencies have been swollen by urban settlers.  The case for discontinuation of the Individual Voters Roll is based on the existence of universal suffrage and the pervasiveness of Samoan connections among registered individual voters.

 

We agree with these arguments.  Furthermore, in spite of the IVR’s mention in the Constitution, now that matai suffrage is no more, continuation of the Roll in its present form within the electoral regime produces a result that fundamentally violates the spirit of the Constitution.  We say this because, now that everyone votes, the eligibility of those on the Individual Voters Roll to stand for Parliament, discriminates against other on the basis of race.

 

We think it timely for this remnant of a colonial mechanism to be either eliminated or transformed into something that could conveniently meet a special need that is emerging.  We refer to the need sooner or later to provide for citizens who in fact live permanently both physically and substantively outside of the “faa-Samoa” and who prefer to continue in this way.  We think the IVR should be cleansed of its racial beginnings and opened anew to any Samoan citizen already on the roll or living on freehold or other non-customary land who chooses not to be represented in Parliament through his customary affiliations.

 

 

 

This very same choice is available now to all Samoans who are on the existing IVR.  Many of them have opted for their Samoan connections.  About twenty current members of Parliament representing territorial constituencies we suspect, could have insisted on registration on the Individual Voters Roll.  Our suggestion simply changes the category of Samoans who would be required to make a conscious determination whether to be on the IVR or the territorial electoral roll.  The present category is race based.  The one we suggest is freehold land or non-customary land based.

 

An Individual Voters Roll is already authorised by the Constitution.  The option we are recommending simply needs the Parliament to legislate a new character for it.

 

 

CHANGING CONSTITUENCIES:

 

It should now be apparent that we consider the combination of residence and kinship as the primary determinant of an elector’s constituency.  Most electors will be registered according to these combined criteria.  Others will qualify by kinship alone, very few will be included on the sole basis of residence.  Once an elector’s constituency is determined, he should be allowed to change, not for the sake of changing as has been permissible, but for good reason.  The reasons that commend themselves are –

 

*         Bona fide change of residence.

 

*         Being a matai wishing to stand as a candidate in a constituency other than the one in which he resides.

 

*         Being a spouse, child, sibling or child of the sibling of a matai wishing to stand as a candidate in a constituency other than the one in which any of the afore-mentioned relatives resides.

 

We make above very generous provision for the mobility of the closes relatives of candidates in recognition of Samoan general tendency to come together in support of kin.  As things stand, relatives in the permitted category who hold matai titles may not have as much freedom of movement as non-matai.

 

 

CHIEF ELECTORAL OFFICER AND CHIEF RETURNING OFFICER:

 

We referred earlier to the herculean effort expected of the Registrar of Electors at the closing stages of electoral roll preparation prior to an election.  An undertaking that is hard enough is made even more difficult by the placing of three quite separate responsibilities upon a single individual.  The roles of the Chief Electoral Officer and Chief Returning Officer are presently being fulfilled by the Clerk of the Legislative Assembly.  We think that this situation has a negative impact on public perception and assessment of probity in the operation of the electoral registration system.

 

Members of the public recall with satisfaction that prior to the existing merge, the Registrar of Electors and Voters had always been a separate official of the Public Service.  We note in passing the legal anomaly that arises in making the Clerk, who is not a member of the public service, responsible to the Public Service Commission in the capacity of Registrar of Electors and Voters.  We feel that it is sensible to restore the separation of the Registrar function away from Mulinuu.

 

We recommend its placement in the Justice Department as a Special Unit under the direction of the Secretary for Justice.  This Unit should have the capacity in terms of staff and equipment to continuously update electoral registration  by visiting the districts and working in co-operation with the Pulenuu committee and other government agencies.  Where feasible, the Unit would assist the Birth and Death Registration activities of the Department.  This Unit could also be responsible for the issue of a National Identity Card should it be decided to proceed with it.

 

 

 

CITIZENS NOT QUALIFIED TO REGISTER:

 

We referred earlier to Parliament’s resolve to eliminate Section 16(2)(g), the provision under which a person who has never resided in Samoa and does not qualify to be registered under any other provision, can become an elector.

 

Eligibility for registration as electors can properly be limited by legislation.  The disqualification intended in Parliament’s resolve is not in itself unreasonable when compared with legal stipulations on these matters in other countries.  We must point out, however, that to simply eliminate the provision would belie section 16(1) which boldly declares that “every adult person shall be qualified to be an elector of a constituency if he is a Samoan citizen; and his name does not appear on the Individual Voters Roll”.  Implementing Parliament’s resolve would require a re-casting of S.16(1) of the Act.

 

PARLIAMENTARIANS AND SEX:

 

Under Section 10(j) of the Electoral Act, a Member of Parliament loses his seat if he has sexual intercourse with any person other than his spouse by valid marriage.  A witness pointed out to us that to his knowledge, Samoa is the only country in the world where such a provision exists.  This did not surprise us.  Legislators traditionally are averse to legislating for morals.  These matters do not, therefore, normally appear in the Law books.  They are left instead to the inadequate treatment given them in the Bible and other Holy Testaments.

 

In looking at the matter, we noticed that although the provision in 10(j) was obviously intended to apply to married members of Parliament, it nevertheless also condemns any single Parliamentarian to 5 years of celibacy at a stretch.  We now understand the expressions of utter glee that have been known to descend upon the demeanour of many a Member of Parliament the moment Parliament is dissolved.

 

We recommend either the elimination or amendment of the provision.

 

ELECTION PETITIONS – 50 PER CENT THRESHOLD:

 

Section 105 of the Electoral Act 1963 removes a person’s right to petition against the result of an election if that person polls less than 50 per cent of the votes polled by the person returned in an election.

 

We understand concerns about frivolous petitions but we think the greater issue is the right to protest against corrupt electoral practice.  The provision as it stands can be read to encourage corruption on a scale sufficiently large to eliminate the possibility of achieving the 50 per cent threshold.  More certainly, the provision defeats the purpose of justice in that alleged transgressions and violations of the law may be condoned by sheer weight of numbers.

 

We recommend the removal of this statutory ban.

 

ILLEGAL PRACTIC v. GLASS OF WATER

 

Except at a funeral, Section 99(A) forbids during the prescribed electoral period the presentation of any food, beverage, money or other valuable by a candidate to an elector or voter of his constituency.

 

It was pleaded time and again to us that the behaviour towards other forced upon candidates by this provision is so against the grain in terms of Samoan custom or simple humanity that it would be better to remove the provision in its entirety.  We did not have the time to look thoroughly into the pros and cons of this issue but we think some exemption ought to be designed to allow the provision of meals and refreshments.

 

We recommend an appropriate amendment to effect such an exemption.

 

 

 

CLEANING THE ROLLS:

 

The Committee is of the view that it is extremely important that, before the next General Elections, a total “cleaning” of the Rolls be undertaken by the Registrar.  While it is not doubted that such a process is already part and parcel of the Registrar’s duties, the Committee feels that constant revision, re-checking and updating of the Rolls is fundamental to achieving a fair and just election result.  Sections 30 to 33 of the Act relating to Purging of the Rolls provide the Registrar with ample powers to fulfil this objective.

 

REGISTRATION OF ELECTORS AND VOTERS – FORMS NO. 1A AND 2:

 

These Forms are required to be completed by intending electors and voters for the purpose of satisfying the Registrar as to the genuineness and accuracy of their qualifications to be registered.  However, the form and content of these Forms are loosely set out, and do not comply with the legal requirements of the oaths, Affidavits and Declarations Act 1963.  Whether or not this was intentional, the Committee believes these Forms should be upgraded at least to meet the requirements of a Statutory Declaration.  This is for the principal reason of avoiding the deliberate presentation of knowingly false or inaccurate information to the Registrar.

 

COMPULSORY REGISTRATION AND COMPULSORY VOTING:

 

We stated earlier in our Report that there are good grounds to support compulsory registration of electors and voters.  We do not, however, support the imposition of compulsory voting on the population.  We believe that not voting is a manner of voting in itself.

 

ELECTION PETITIONS HEARING:

 

The hearing of an election petition is presided over by a single Judge of the Supreme Court.  The decision of this Court is final, and there is no avenue for appeal.  In contrast, the New Zealand position is that election petitions are heard by a full Court, consisting of more than one judge.

 

The Committee believes that owing to the importance of such petitions, their consequences and the fact that the Court’s decision is final, consideration should be given to adopting the New Zealand practice of having a full Court determine such cases.  Given also the intricacies of the faa-Samoa in relation to allegations of corruption, bribery and treating, more judicial interchange in this decision making may be appropriate.  The Land and Titles Court provides a comparable example of judicial practice in matters of custom and tradition.

 

CONVICTIONS/DISQUALIFICATION OF CANDIDATES/CORRUPT PRACTICE  LIST – section 5(b); section 10(e) and section 12(1):

 

We looked at these section following a special petition from an individual who claimed was uniquely and unfairly affected by these Sections of the Electoral Act 1963.

 

Section 10(e) states that the seat of a Member of Parliament shall become vacant if he is convicted of a crime punishable by death or by imprisonment for a term of two years or upwards.  This same prescription is reproduced in Section 5(b) as a disqualification for being a candidate for Parliament except that the work “offence” appears instead of the word “crime”.  The insertion of words to the effect that disqualification is for a period of four(4) years became part of Section 5(b) by virtue of the 1995 (No. 1) Electoral Act Amendment. The word “offence” also appears in Section 12(1) wherein the Registrar of the Supreme Court is required to report convictions of offences to the Speaker.

 

It is a fact that not all offences are crimes.  The individual who appeared before us claimed that he was not convicted of a crime, yet he was deprived of his seat in Parliament.  Section 10 clearly speaks of a conviction for a crime to result in a vacancy but because of the appearance of the word “offence” in the two other places in the Act, it was taken presumably that the words “crime” and “offence” were used interchangeably in the Act.

 

The loss of the complainant’s parliamentary seat is of course now water under the bridge but the inconsistency, we feel, should be cleared up by amendment.

 

We were pressed to look at Section 5(2) further because of the individual’s claim of additional injustice arising from the four-year disqualification introduced by the 1995 Amendment.  We gather that the purpose for this Amendment was to make Section 5(2) consistent with Section 32(a).  The latter section was introduced via the 1995 (No. 1) Amendment Act to provide for a Corrupt Practice List.  Section 32(a) requires the Registrar of Electors and Voters to place on the List for period of four(4) years anyone who has –

 

 

(a)    been convicted of corrupt practice; or

 

(b)    been reported by the Supreme Court in its report on the trial of an Election Petition to have been proven guilty of corrupt practice.

 

We were given to understand that the 4-year ban was instituted under 32(A) to prevent anyone found guilty of corrupt practice from standing in a bi-election arising from such guilt.  As also intended the prohibition effectively puts such a person out of contention for a seat in Parliament until the next following General Elections.  On the other hand, the somewhat gratuitous introduction of the 4-year period into section 5(2) can ban beyond the General Elections an individual who is convicted of offences not related to parliamentary elections.  We wonder whether this was intended.  We wonder also whether an additional implication of the Amendment was intended, i.e., individuals convicted of corrupt practice, as distinct from those reported guilty of corrupt practice, are barred from Parliament for life.

 

Section 5(5) states that a person shall be disqualified for being a candidate or being elected as a Member of Parliament if he –

 

“(b) Has been convicted in Western Samoa or in American Samoa of an offence punishable by death or by imprisonment for a term of 2 years or upwards, within the immediately preceding 4 years after the offence, or has been convicted in Western Samoa of a corrupt practice;”

 

As it stands, the provision permits several possibilities, all of which the Committee believes were unintended.

 

·         First, if a person commits an offence but is not convicted within 4 years after the offence, that person may not be disqualified under this ground.

 

·         Secondly, it does not matter whether or not a convicted person has paid the penalty imposed by law for his offence.  So long as he does not fall within the 4 year limit, he will still be eligible to run as a candidate.

 

·         Thirdly, while it appears the 1995 Amendment to the Act was intended to ban candidates found guilty of a corrupt practice to run again in a bi-election that would be held as a result of his disqualification, this amendment may be seen to work unfairly in the case of candidate who is disqualified for having committed any offence punishable by imprisonment for 2 years or upwards, and whose 4 year time limit straddles the current term of Parliament and a succeeding General Elections.  The result in this case is that the candidate cannot stand either in a bi-election of the current term, or in the following General Elections.

 

·         An   individual convicted of corrupt practice is disqualified as a candidate forever.

 

  

ACKNOWLEDGEMENT:

 

We record our thanks and appreciation to the Secretary of the Commission, Faaitamai Pierre Meredith, and our secretariat staff for their contribution to and support of the Commission’s work.

 

 

Maiava Iulai Toma                                                                Talamaivao Masoe Niko

Chairman                                                                                  Member

 

 

 

 

 

Rev. Faatoese Auvaa                                                              Dr. Tauavamea Lanu Palepoi

Member                                                                                    Member