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FURTHER
AMENDMENTS
24 MAY 2000
APIA, SAMOA
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1. |
PREFACE |
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2. |
INTRODUCTION |
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3. |
ELECTOR REGISTRATION |
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4. |
THE ELECTORAL ACT 1963 |
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5. |
THE SYSTEM AT WORK |
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6. |
TIME FOR CHANGE |
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7. |
GENERAL ID CARD |
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8. |
RESIDENCE GIVEN INADEQUATE WEIGHT |
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9. |
NEW VANTAGE POINT |
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10. |
APIA AND ENVIRONS |
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11. |
TERRITORIAL CONSTITUENCIES IN THE URBAN AREA |
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12. |
FREEHOLD/LEASEHOLD/NEW SETTLEMENT SETTLERS |
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13. |
INDIVIDUAL VOTERS ROLL |
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14. |
CHANGING CONSTITUENCIES |
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15. |
CHIEF ELECTORAL OFFICER AND CHIEF RETURNING OFFICER |
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16. |
CITIZENS NOT QUALIFIED TO REGISTER |
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17. |
PARLIAMENT ARIANS AND SEX |
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18. |
ELECTION PETITIONS – 50 PER CENT THRESHOLD |
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19. |
ILLEGAL PRACTICE v. GLASS OF WATER |
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20. |
CLEANING THE ROLLS |
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21. |
REGISTRATION FORMS NO. 1(A) AND 2 |
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22. |
COMPULSORY REGISTRATION AND COMPULSORY VOTING |
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23. |
ELECTION PETITIONS HEARING |
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24. |
CONVICTIONS/DISQUALIFICATIONS/CORRUPT PRACTICE |
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25. |
AKNOWLEDGEMENT |
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
|
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Wellington |
251 |
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Auckland |
431 |
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Australia
|
|
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Sydney |
355 |
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Brisbane |
192 |
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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