(Note the underlined texts represent the gist of my objection and yet also make up the essence of the present case against the Government.)
Monotaga, as a cultural and traditional practice of rendering services to the village by certain matais should not be used as a requirement to be a candidate in the elections.
First of all, there is no specific definition of monotaga that would pass legal muster. The present irony, which borders on political and legal mockery, is that while Parliament had failed to come up with a definitive, unambiguous and fair definition and application, yet the courts went ahead and enforced what obviously is a vague and convoluted, if not a politically motivated, Act. The monotaga is therefore diminished in its traditional, cultural and altruistic role. It is now "defined", dictated and regulated by law - and classified as well.
Monotaga is a practice that is broad, general and relative at best. Different villages have their own interpretation and application despite the principle and idea being perceived as being the same and/or similar throughout Samoa. It's the same notion behind the adage "E sui faiga ae le suia faavae" (practices change but principles don't). Everyone can grasp the concept/principle of monotaga, but when it comes to its actual implementation, it varies and differs if not conspicuously relative and provisional. In fact, it proves even more problematic and unintelligible when it's ported over to a strictly legal construct. We need to remember that, more often than not, traditional and status-based cultural concepts do not dovetail well, if at all, into more modern democratic institutions. Monotaga therefore represents an at large challenge for developing societies trying to assimilate more modern legal and democratic practices.
Monotaga also proves to be discriminatory within the context of the present electoral configuration. The two principal constituencies (traditional and urban) are essentially different in composition and configuration, hence at odds with each other when it comes to modern political and/or legal principles. The urban constituency is an anomaly in the larger cultural configuration as well as in some people's aspirations to keep and maintain traditional elements - especially the faa-matai - within the more modern system of government.
And here is an excerpt from the Samoa Observer article of September 9, 2020 - four years later - on the case:
(Note the underlined texts that concur and correspond with my underlined objections above.)
The man who brought his case against the Electoral Act 2019, Tuala Iosefo Ponifasio, said he is content with how the matter was brought to a close this week.
On Monday, Supreme Court Justice Tafaoimalo Leilani Tuala-Warren announced that Tuala and Papalii Panoa Tavita will withdraw their applications, and that the Government will redraft relevant portions of the Act.
The Government has around a month to make the changes, which are outlined in a confidential document, before the nomination period for the election begins on October 12.
Speaking to the Samoa Observer on Tuesday, Tuala said he is pleased the court proceedings “triggered” the redrafting.
“I am satisfied with the outcome and glad the inconsistencies of laws can be rectified when Parliament sits again,” he said.
“It is unfortunate that it had to come to court in order for us to point out these inconsistencies. It is now up to Parliament to make the necessary amendments and pass these changes into law.”
In their applications, Tuala and Papalii alleged that two key sections of the Electoral Act 2019 (section 8(2) and 156(c)) are discriminatory, unconstitutional and favour the ruling party over intending candidates.
That hearing lasted around days and concluded on Monday afternoon with both parties agreeing for the applications to be withdrawn and the Act redrafted with amendments contained in a confidential memorandum, to be made public when tabled in Parliament.
During the hearing, Electoral Commissioner Faimalomatumua Mathew Lemisio admitted the Act was already being redrafted to ensure the legal language more accurately reflected the intentions behind the law, which he argues were not discriminatory.
His admission prompted Justice Tafaoimalo to pause on the hearing and move the discussions behind closed doors, resulting in submissions from both parties never being aired in court.
Tuala said he believes it was the court case that prompted the Commissioner to consider redrafting the law.
And this from the another one of Samoa's news sources:
“All we are hoping for is for Government to address the discriminatory nature of the legislation…; [the plaintiffs] continued..”Under article 15 of the Constitution, everybody is equal under the Law, and secondly, there is no room for discriminatory legislation in Samoa.” Unique to Samoa’s election process is the requirement for all candidates to hold a registered chiefly matai title within the electoral constituency for which they want to run. Furthermore the Electoral Act requires all candidates to render a service to the community through the village council. According to the current wording of the Act, that service known as the monotaga is rendered when a matai actively participates as a member of the village council.
Samoa’s election rules further requires all candidates to have rendered that service for a minimum period of 3 years before they are eligible to run for that village. During the court hearing last week, several matai were called to the stand by the applicants’ lawyers, to explain their claims that the legislation was discriminatory in view of an exemption clause to the monotaga, afforded only to sitting members of Parliament, running in newly formed electorates.
The Electoral Commissioner had told the Court last week that this exemption was only intended for Urban seat MPs who did not previously need to take up matai titles in their constituencies.
Through their legal counsels the applicants had argued that the law should be applied to all candidates and not just sitting MPs.
Samoa Global News, "Samoa’s Electoral Act to be Amended following Legal Challenge in Court." September 7, 2020.
In July of the same year (2016) I sent another letter (here in this blog) on the same subject in which I stated this:
...the monotaga will continue to be scrutinized legally for a while. I predict that it will continue to be revised until the courts and the present government are satisfied and have accomplished their goal - whatever that might be. By such time, the cultural practice and legal definition will have been at their greatest odds, with tradition and culture being the likely losers.
The present case has fulfilled my prediction. Essentially, therefore, as I said in my letter, there is no specific definition of monotaga that would pass legal muster. The proof of this is that the Court is now telling the Government to revise and redraft the Electoral Act with regard to the monotaga provision. We'll see.
