The legal battle continues on the interpretation of Article 44 of the Constitution, which provides for a 10 percent, minimum number of women members of Parliament in Samoa.
In doing so, the sixth woman Member of Parliament, To’omata Nora Leota has been unseated by an Appeal Court decision when they overturned a Supreme Court decision appointing Toomata.
In the ruling issued today, by Justice Sir William Young, Justice Rhys Harrison, Justice Raynor Ashner, and Justice Tafaoimalo Leilani Tuala-Warren allowed the appeal filed by the Human Rights Protection Party and Opposition women MPs Ali’imalemanu Alofa Tu’uau and Faagasealii Sapoa Feagiai against the appointment of Toomata.
“We declare that no additional member should have been sworn in, and the swearing-in of To’omata Norah Leota was invalid. We declare that To’omata Norah Leota is not a member of the Legislative Assembly,” ruled the Appeal Justices.
The Appeal Court also dismissed the cross-appeal filed by Toomata, which involves the interpretation of Article 44(5) over the highest number of votes” means the percentage of the total valid votes in a constituency polled by a woman candidate.
According to the 19-page ruling, the Supreme Court’s decision held that a vacancy occurring in a constituency seat formerly held by a woman would always require a woman to replace her, either as a result of a woman winning the subsequent by-election, or, if a man did so, as an additional member and that this was so even if there were already six women in Parliament.
“That decision turned on the Court’s interpretation of the provision that women shall consist of a minimum of 10% of the Members of the Legislative Assembly, and Article 44 (1E), the provision stating what should happen if a man should be elected to fill a vacant seat formerly held by a woman.
“That is the decision that is the subject of the appeal.”
Furthermore, the Appeal Justices noted the long title of the Constitution Amendment Act 2013 which amended Article 44 describe its purpose as being an Act to amend the Constitution “to provide for a minimum number of women members of Parliament”.
“The intention is to provide for a “minimum” number of women members.
“The centering on the minimum number is reinforced by the first substantive statement in the new Article, Article 44(1A)(a) that the members shall “Consist of a minimum of 10%…which for the avoidance of doubt is presently five”.
“There is nothing to indicate an intention to provide for an unconstrained number of women members that could increase incrementally without limit after every election.”
The ruling states there is nothing in the initial Article to indicate that the goal is to ensure that the number of women in Parliament, whatever its level above the minimum, should never drop.
“Under the Article which follows, the minimum number is achieved in two ways, by election or the process created by it for the appointment of additional members.
“As we have set out, three situations are covered by the Article, the first being after an election where the minimum of women members has not been achieved by the election, or second and third when in different circumstances vacancies arise and the number of women members drops below that minimum.
“In all three situations, the minimum must be achieved or restored by the appointment of additional women members.”
According to the ruling, the amendment has advanced the position of women in Samoa, by forcing a percentage minimum number of women members, considerably greater than the actual percentage in 2013.
“But plainly it did not have the intention of requiring in certain circumstances a number of women in Parliament that exceeded the 10 percent minimum.
“If it had wished that it could have said so in the Long Title, or at least made unambiguous provision for it.
“The Legislative Assembly had all sorts of options it could have adopted, including a higher percentage minimum.
“It chose the option we see in the Amendment.
“There is nothing to indicate it was also creating a second option for increasing the representation of women not connected to the 10 percent minimum.
“If that was what it intended it could have said so.”
Another factor is that the Supreme Court judgment permits the increase of the number of members of Parliament beyond the limit of 51.
“That is implicit in the general provision of additional members to achieve the 10 percent, but it can be expected that Parliament would have been conservative in passing provisions that permit the 51 limits to be exceeded.
“If we accepted the respondents’ arguments, the Legislature has through Article 44(1E) left the door even more open to increases above the five, (now six), that follows from the 10 percent.
“It seems unlikely that Parliament would have done that.
“Finally, we refer to the Supreme Court’s reliance on the “strong flavour of succession” inherent in Article 44.
“It is difficult to see how that premise can be used to justify its interpretation of (1E).
“On the Supreme Court’s construction, which does not admit of any exceptions, this provision would require the replacement, for example, of one woman member who had secured election by fraud with another woman member.”
The Appeal Justices noted that if anything their examination of the wider background confirms that Parliament did not intend to set up a separate regime of an unlimited increase of members of Parliament.
“It was not its intention to ensure that when a seat held by a woman was vacated, a woman would always replace her and be an additional member of Parliament if the seat had been won at a by-election by a man.
“It did not intend to depart from the purpose outlined in the Amendment’s Long Title and Article 44(1A) to provide for a minimum of 10 percent of women members.
“We have decided to allow the appeal and we will make the orders sought by the appellant.”
Regarding the cross-appeal, which involved the interpretation of Article 44(5) and the relevant part of subsection (5) reads as follows: “44(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 Electoral Commissioner had used in the by-election the same formula he had used in the 2016 General Election, whereby he divided the total number of votes won by a woman candidate in a constituency by the total number of valid votes in a constituency. It was on this basis that he got a percentage of votes gained by women candidates in their respective constituencies.”
The cross-appellants argued for a different interpretation. It was said that the definition was ambiguous.
“Based on this the cross-appellants submitted the better approach was to adopt the wording in Article 44(1B) itself and appoint those women who receive the highest number of votes.
“Alternatively although more complex, compromising the two terms in (1B) and (5) by ranking the unsuccessful women candidates by percentage of the vote attained by the elected candidate.
“There is nothing to indicate that Parliament addressed such alternatives. More importantly, for the reasons we 18 have set out above, if there was such an intention, Parliament would have not bothered with the definition which centres on the percentage of the woman candidate.
“We have no doubt that there are all sorts of arguments and cross-arguments about the fairest way of calculating the highest number of votes.
“We are not persuaded that any policy is obviously better than another. In any event that is why Parliament created a definition. It is there to avoid just these sorts of debates.”
The Justices noted that the advancement of women and the CEDAW obligations relied on by the Cross-Appellants do not address a preference for one method of selection criteria for the achievement of a minimum numbers of women in Parliament by legislative prescription.
“That is unsurprising, as more women in Parliament rather than the selection method, is the focus. “What was plainly envisaged by Parliament as the Supreme Court stated is a selection method based on dividing the total number of votes won by a woman candidate in a constituency, to get a percentage of votes gained by women candidates in their respective constituencies.
“It is a cascading process. In (1E) to determine the additional member, the assessment of the highest number of votes as defined is taken first from the election in which the man was elected to the seat previously held by a woman. If no woman candidate emerges from the process, then it is taken from the previous election closest in time to that election.
“If still no woman candidate has emerged, it is taken from the results of the last general election.
“In (1D) to choose the additional member, an assessment of the candidate with the highest number of votes is taken from the results of the last election closest in time to the general election, or if there was no such election from the last general election.
“In (1B) to choose the additional member, it is the woman with the highest number of votes as defined in the general election who becomes the additional member.”
RESULT
“The Appeal is allowed.
“Paragraphs 59(b) and 59(d) of the Supreme Court decision are quashed.
“ We declare that no additional member should have been sworn in, and the swearing in of To’omata Norah Leota was invalid.
“We declare that To’omata Norah Leota is not a member of the Legislative Assembly. “The Cross-Appeal is dismissed.
“Like the Supreme Court, given the novelty and importance of the issues raised in this litigation, we determine that there will be no order as to costs.”
