Counsel for Aliimalemanu Alofa Tu’uau and Faagasealii Sapoa Feagia’i and HRPP, Aumua Ming Leung Wai has asked the Supreme Court to dismiss the application by To’omata Norah Leota and the FAST political party in its entirety.
The Applicants are questioning the activation by the Office of the Electoral Commissioner after the results of the by-elections were announced.
Aumua is adamant the timing in which Article 44(1A) was activated is valid and thereby declaring Ali’imalemanu and Faagaseali’i as additional members are correct and they should be sworn in to satisfy the Constitution in meeting the six women quota.
The hearing today was presided over by Chief Justice his Honour Satiu Simativa Perese, Justice Vui Clarence Nelson and Justice Lesatale Rapi Vaai.
At the beginning of the hearing Leilani Tamati, Counsel for Speaker of the House, Li’o Papali’i Tau Masipa’u applied to be a party to the matter, which was opposed by Aumua.
The court denied the motion and rules for the Speaker’s lawyer to observe in court.
During the hearing, Aumua says if there ever was any doubt, then the withdrawal of the election petitions following the by-elections has removed all doubt about the results of the elections.
Adding the formula used by the Electoral Commissioner to calculate the ‘highest number of votes’ is correct and in accordance with Article 44 (1B) and Article 44 (5) of the Constitution.
However, Taulapapa Brenda Heather-Latu opposes this noting the Applicants claims the warrants and the purported appointments of Aliimalemanu and Faagasealii as additional MP’s under Article 44 (1A) b and (5) were “unconstitutional, unlawful and therefore void.”
Taulapapa argued in Court that Article 44 (5) provides the additional member refers to a woman with the highest number of votes and it means the percentage of the total valid votes in a constituency polled by a woman candidate.
However, for men parliamentarians, it’s a straightforward formula of whoever garners the highest vote is elected and this makes the “formula discriminatory against women”.
The Chief Justice then asked Aumua about his legal view on the argument by Taulapapa.
Aumua acknowledged the “confusion” but said it’s clear in the Constitution that the calculation refers to the highest percentage of votes.
Aumua further stated “Article 44 (5) is clear, but it’s is just a matter of drafting style or shortcut that might create a bit of confusion.
“The formula used by the Electoral Commissioner to calculate the ‘highest number of votes’ is correct and in accordance with Article 44 (1B) and Article 44 (5) of the Constitution.”
His Honour Satiu pointed to a synopsis if one candidate receives 1,000 votes and another 200 ballots; the highest number of votes would be the one that polled 1000 votes, “but not when it comes to percentage calculation”.
Justice Nelson took the floor and painted another scenario of only five women who unsuccessfully ran for office in the general election. He then asked whether there should be a special election just for women to satisfy the provision in the Constitution?
The Judges reserved their decision.
