The Office of the Electoral Commissioner’s creation of a new, post-election Parliamentary seat has plunged Samoa into a “constitutional crisis” with no resolution in sight, a top lawyer says.

Other constitutional experts have told the Samoa Observer the Office of the Electoral Commissioner’s (O.E.C.) Tuesday night announcement has not only entrenched political paralysis but raised questions about the O.E.C.'s use of its authority.

As a result of the office's installation of a new M.P. and constituency, both major parties now have 26 seats each to their name. 

Neither the Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) party nor the Human Rights Protection Party (H.R.P.P.) can now form Government when the Parliament first convenes before May’s end.

Fiona Ey, a partner at ClarkeEyKoria Lawyers, told the Samoa Observer today that the addition of another seat on Tuesday night has left Samoa in a crisis. 

“I think we are in a constitutional crisis. We have no clear answer about what we do in this case,” she said about the political deadlock.

The O.E.C. late on Tuesday night added a new seat to the country’s XVII Parliament on the grounds of enforcing a mandatory target that 10 per cent of M.P.s are women. 

The O.E.C. had initially said the quota need not be invoked. The 5 women elected in this month’s election for the 51-seat Parliament accounted for 9.8 per cent of the total.

After seeking advice from the Attorney General’s office, the O.E.C. decided to bring in a sixth female M.P., with the approval of the Head of State. The M.P. was chosen according to rules dictating the elevation of a candidate who lost her seat but won the highest proportion of votes while doing so. The new addition is the H.R.P.P.-aligned  Aliimalemanu Alofa Tuuau in Alataua Sisifo.

Until election petitions (or legal challenges) are heard and lead to by-elections, the country will be in political limbo and the constitution offers no guidance on what to do, Ms. Ey said.

“Westminster systems like the ones we have do permit minority governments to be formed but in order for a minority Government to be able to pass legislation they need the support of the parties or independents,” she said.

“I don’t think we have that situation here because we have that clear deadlock. Some other Commonwealth countries have provisions in their constitutions that allow for a double dissolution mechanism when there is a deadlock, like Australia, but again, we don’t have that in the Samoan constitution.

“There are all these questions about how do you appoint the Prime Minister because that person has to be the person that commands the confidence of the majority of M.P.s but when you have got a clear split down the middle, you don’t have someone who can [do that].”

The F.A.S.T. party immediately challenged the O.E.C.’s move; it will be heard in the Supreme Court on Thursday by Supreme Court Justice Niava Mata Tuatagaloa, currently the Acting Chief Justice.

Ms. Ey said the O.E.C. should have consulted the court first, before having the Head of State sign off on the decision.

“I think it was a pretty surprising way in which [the O.E.C. decision] was announced, to be announced late at night and via Facebook is not the usual, formal process that happens. To be announced in that way, the night before the expected announcement of the decision of what party [independent candidate] Tuala was going to support, it does all seem rather rushed.

“Given the uncertainty in the wording of the constitution, it would have been a prudent approach to go to the court to get some clarity, and some declaratory orders before leaping in to declaring another person elected.” 

Samoa Law Society President Leiataualesa Komisi Koria and former Attorney General Taulapapa Brenda Heather Latu agree.

“I think the most prudent course of action would have been, and probably still is, to seek a declaratory judgment from the Supreme Court on the correct interpretation and application of Article 44(1A) in the present circumstances,” Leiataualesa said.

“The provision is potentially open to more than one interpretation and given its huge importance to the outcome of the elections, the need for judicial guidance is obvious.

“A ruling from the Supreme Court could potentially address the question of whether ultimately there is a tie.

Taulapapa said it is the Supreme Court, not the Electoral Commission, which is meant to interpret the law.

“I just think it’s such an important issue that normally you would ask the Supreme Court for interpretation. That’s what the Supreme Court does, not what the Electoral Commission is supposed to be doing,” she said.

“We need to wait and see whether the interpretation used by the Electoral Commissioner is correct before we talk about a hung parliament.”

Speaking to the Samoa Observer on Wednesday, Faimalomatumua Mathew Lemisio confirmed his office sought a second opinion from the Attorney General’s office before declaring that it would be activating the special measures needed to bring another woman into Parliament.

He said it is within his authority to do so, and that he is not obliged to seek instruction or advice from the courts.

“It’s the Constitutional and statutory obligation of the Electoral Commissioner to determine whether the minimum 10 per cent constitutional requirement for Women Members in Parliament is met or not,” he said over email.

“As Electoral Commissioner, I am obligated to execute these obligations.

The Samoa Observer asked Faimalomatumua whether his office had considered how to determine the quota for the 2021 General Election ahead of the election itself.

There was no additional provision made to the Constitution when two additional seats were added to the list of Electoral Constituencies, potentially changing the final figure of what ten percent of the House would look like in numbers.

Faimalomatumua declined to answer the question fully, saying only: “we can only base our determination on official data following the official count.

“Given the closeness of the results we had to make sure that we thoroughly check the data against the requirements of the law before our position can be determined.”

The O.E.C. released the new writ of Election confirming Aliimuamua’s position late on Tuesday night, nearly a week after the election results were declared.

Asked why this was not determined earlier, the Commissioner said deciding whether to use the Constitutional provision for female representation is not the same as declaring the other results of the election.

“Declaring the results of the General Election for elected members doesn’t require a specific formula,” he said.

“It’s basically based on the votes polled by each candidate on the day and we have to declare it after they are officially counted. 

“In determining an additional member, the constitution is clear at Article 44(1B) which says ‘If following a General Election…’

“It is following the General Election that our determination of the Additional Member was made.”

But F.A.S.T. Party Leader Fiame Naomi Mata’afa disagrees.

She told the media on Wednesday evening that the O.E.C. should have known ahead of the election how many women would need to win their seats in order to meet the minimum requirement of ten per cent, and to have publicised that.

Instead, she said the O.E.C. is making up rules on the fly.

“We have a lot of evidence that bills have been badly written, they have been ill-conceived. So when you have that kind of mix of course it’s going to create these sorts of situations that we are finding ourselves in,” she said.

“On the Electoral Act, when it was brought to the Electoral Commissioner’s attention that they had perhaps been [lax] in the conceptualisation of their legislation regarding boundaries, the only response was that it was a bit of an oversight. 

“My real concern there is perhaps there is a lack of competence, or whether the motives aren’t good so it drives the legislation."

Ms. Ey said the dilemma could have been avoided with fewer amendments to the Constitution. She said the document, which is Samoa’s legal foundation and supreme law, is edited too often and is left open to mistakes.

“The current format of it with the 51 members only came into force when the last Parliament was dissolved,” she said.

“These are all provisions that are in similar form to what they have been in previous years but subject to multiple tweaks along the way. I think sometimes those tweaks have resulted in inconsistencies and areas where it is simply not clear.”

When passed during 2013 when Parliament had 2013 seats the amendment of the constitution said that for the avoidance of doubt a quota “presently” constituted five M.P.s.

“It’s one of these provisions that has potential for uncertainty in the way it is drafted and it is something that is going to have to be resolved by the courts,” Ms. Eu said.

Victoria University of Wellington Professor of Comparative Politics Professor Jon Fraenkel, an expert on improving women’s representation in Parliaments across the region, said the O.E.C.’s ruling was “unfair”.

“It does seem from the standpoint of natural justice to be a very unfair, unwise and undesirable use of temporary special measures in order to make the decision about who is in Government and who is not in Government.

“I am sure it will be tried in court and there will be arguments both ways.”

He also said he personally believed Samoa’s quota system was not the best way to promote women’s representation in Parliament.

“My own view of that arrangement is that it was inadvisable because it was susceptible to manipulation,” he said. 

“I think what we are seeing now demonstrates that very clearly.”

Concerns were also expressed by Dr. Vito Breda a senior lecturer in the school of law at the University of Southern Queensland, and expert on Samoa's constitution.

He said the impact of the O.E.C.’s post-election intervention was excessive and cast a light on the problem of unelected bureaucrats’ potential power to swing election results.

“I think it would not be problematic in the past when one party was controlling the Parliament without problems but in this situation there are ramifications, and the ramifications are really political,” he said.

He said one area that could be up for contention is where public servants and M.P.s have worked together for a long time, and forged close connections. 

“There are strong working connections between elected politicians and civil servants. That is a proxy for great problems like we have now, in which individuals who were used to doing this as they were doing in the past continue to do it even if the political climes have changed. 

“I am not saying that what has happened might be scrutinised in a way that someone overstepped his own powers, but I think there will be very close scrutiny of how this process has been carried out.

“This is really a grey area. 

“I think from a legal point of view there will be a battle over the words and the strict interpretation of the text might give an advantage to the stance of the Commissioner and the Head of State and an analysis of what happened in practice will give an advantage to the F.A.S.T. supporters because they will argue quite reasonably that the result has been tweaked without a proper democratic mandate.”