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Sen. Nuanuaolefeagaiga says he was selected “in accordance with Samoan custom”

Sen. Nuanuaolefeagaiga Saoluaga T. Nua, one of the two senators for Manu’a District No. 1, yesterday inside the Fono building. He is currently fighting a complaint regarding the legality of his selection as a sitting senator.  [photo: FS]
And the Senate, not the Court has jurisdiction over this issue
fili@samoanews.com

Through his attorney, Sen. Nuanuaolefeagaiga Saoluaga T. Nua has argued that among other things, the Constitution gives the Senate, not the court, jurisdiction over the determination for the qualifications of its own members.

Nuanuaolefeagaiga, represented by local attorney Gwen Tauiliili-Langkilde, made the argument in court documents filed last Tuesday in the Trial Division of the High Court in response to a Dec. 30 complaint by Ta’u County traditional leaders Lefiti Atiulagi Pese, Maui Aloali’i and Tauese Va’aomala K. Sunia for themselves and on behalf of the Ta’u County Council. Also listed in the complaint, as “Party of Interest” in this case is Faleasao County matai Vaitautolu Liugalua.

The complaint asked the court to declared Nuanuaolefeagaiga’s selection to the Senate to be null and void, as it is not in accordance with constitutional requirements. (See yesterday’s edition for details.)

As part of the defendant’s response, which seeks to dismiss the complaint, is Nuanuaolefeagaiga’s affidavit, which states that Ta’u traditional leader Fa’amausili Pomele, called the Ta’u County Council meeting for Nov. 23 for traditional leaders of Luma and Si’ufaga — sub villages of the Tau County — to select their nominee for the senatorial seat to be presented at the Nov. 24 meeting of the Ta’u, Faleasao and Fitiuta counties where the two senators for Manu’a District No. 1 would be confirmed.

The affidavit alleges that on Nov. 23, the Si’ufaga council selected Nuanuaolefeagaiga, while the Luma council picked chief Tuialu’ulu’u Vaimili. Later on the same date, the two councils met in Luma for the Ta’u County Council and it was agreed that Nuanuaolefeagaiga is the Ta’u county’s selection as senator and the decision was presented the next day, when the Ta’u, Faleasao and Fitiuta counties met.

The affidavit further alleges that Lefiti was present during the Si’ufaga council meeting, but refused to attend the joint meeting between Si’ufaga and Luma sub-village councils. Furthermore, the county chief (or fa’alupega) of Ta’u County wasn’t able to attend the Nov. 23 meeting because he was not well enough to travel.

According to the affidavit, the county chiefs of both Fitiuta and Faleasao currently reside off-island.

At the Nov. 24 meeting of all three counties, Fitiuta nominated Galeai, Faleasao chose Vaitautolu while Ta’u selected Nuanuaolefeagaiga. “After much deliberation” Galeai and Nuanuaolefeagaiga “were selected”, according to the affidavit, which also says that then Manu’a District Governor Misaalefua J. Hudson was present at the meeting.

Upon returning to Tutuila, Nuanuaolefeagaiga claims that he made “numerous unsuccessful attempts” to have Maui, the Ta’u County chief, certify the results of the Nov. 24 meeting.

In the end Misaalefua signed the certification on Dec. 6, according to the affidavit.

DECLARATORY RELIEF

In its complaint, the plaintiffs sought declaratory relief asking the court to declare that Nuanuaolefeagaiga’s selection was null and void as well as the certification by Misaalefua.

To bring a declaratory relief action, the defense argued that there “must be a justifiable issue based on alleged facts showing, under all circumstances, that a substantial controversy exists between the parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of a declaratory judgment.”

In the immediate case, the defense argued that “there is no substantial controversy” between plaintiffs and Nuanuaolefeagaiga, who are all members of Ta’u county. The defense claims that “there exists only a difference of opinion — most notably — how Ta’u County Council meetings are called and convened.”

Further, the “resolution of the strife within Ta’u County Council makes no difference in this case” because Nuanuaolefeagaiga was accepted at the Nov. 24 meeting at Malaetele, Ta’u. Even in light of Faleasao’s nomination of Vaitautolu, the councils represented and chiefs who were present — including Vaitautolu — resolved that Nuanuaolefeagaiga would serve as one of the two senators for District No. 1.

Even if a justifiable issue exists, the defense argued that declaratory relief is unnecessary or improper at this time, because the defendant was sworn in as a senator on Jan. 3 and for over a month, Nuanuaolefeagaiga has “made substantive decisions as a member of the Senate,” specifically in connection with the approval of the governor’s cabinet appointments.

Nuanuaolefeagaiga has chaired some of the confirmation hearings for director-appointees, who appeared before the Rules Committee — of which he is chairman — and the Government Operations Committee, of which he is vice chair.

If the court voids Nuanuaolefeagaiga’s certification at this juncture, “all of his decisions as a sitting member of the Senate since January may also be called into question,” the defense argued. “Accordingly, even if a case or controversy exists, declaratory relief is improper at this time.”

JURISDICTION

The defense also argued that it’s the Senate, not the court that has jurisdiction over the determination of the qualifications of its own members, citing provisions of the constitution, which expressly reserves to each House of the Legislature, the right to judge the elections and qualifications of its “members”.

“This constitutional provision is rooted in the constitutional separation of powers doctrine, which maintains that each branch of government is separate and independent of the other,” the defense further argued.

Furthermore, the court “has consistently recognized the Fono’s authority to judge the qualifications of its members,” according to the defense, which cited six similar court rulings over the years including a 1973 Trial Division decision, finding that declaratory relief over the election and qualification of a Senate member would be “a clear usurpation of the Legislature’s constitutional right.”

Another Trial Division decision cited was a 1997 case, which states that “only the Senate... can judge the results of the election.”

In the present case, the defense argued, the Senate has already made a determination that Nuanuaolefeagaiga is qualified as one of the two senators for Manu’a District No. 1.

Therefore, any judicial declaration to the contrary would be “a clear usurpation of the Legislature’s constitutional right” under the constitution’s “separation of powers doctrine.”

Even if the court exercised jurisdiction, the defense contends that Nuanuaolefeagaiga’s selection was made in accordance with the provision of the constitution, which provides that “Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent.”

According to the defense, an almost identical situation occurred some 20 years when the late chief Lefiti (not the current Lefiti title holder) of Si’ufaga was selected at a joint meeting of the councils of Fitiuta, Faleasao and Ta’u. Despite Lefiti’s selection, the Ta’u county council objected and nominated another Ta’u chief.

The court at the time rejected the proposition that the Ta’u county council has a “customary” right to one of two senatorial seats and has greater weight to the selection of Lefiti by the county councils of Fitiuta, Faleasao and Ta’u.

In the present case, the defense said it’s undisputed that the Ta’u County Council met on Nov. 23 and agreed to Nuanuaolefeagaiga. “More importantly,” the defense said, the three county councils met on Nov. 24 and after much deliberation selected Nuanuaolefeagaiga and Galeai.

As to Maui’s alleged refusal to certify Nuanuaolefeagaiga’s selection, the defense cited a Trial Division ruling from 1973, involving another contested senate seat, which states in part, “The County chief (fa’alupega) has no discretion whatever in certifying the decisions of the members of the county council. His is purely a ministerial duty.”

Even if the court finds jurisdiction is appropriate in this case, it should be determined that Nuanuaolefeagaiga’s selection was made at a joint meeting of the councils of Fitiuta, Faleasao and Ta’u on Nov. 24 “in accordance with Samoan custom.”

Furthermore, Maui should be directed to certify the results in accordance with provisions of the constitution.