Collectiveness at it most potent has been called asabiyya by macrohistorian and cliodynamicist Peter Turchin. At its least potent, collectiveness is a recipe for social division, top-heaviness, escalating inequality, and societal breakdown.

The present ‘debates’ in Aotearoa New Zealand – ostensibly about Te Tiriti, the Treaty of Waitangi – represent a case in point. Increased bipartisanship festers, with the two sides largely talking past each other.

Pre-contact indigenous culture in Aotearoa New Zealand can be characterised as on the collectivist side of the collective-individual spectrum, at least with respect to tribal Iwi; whereas anglo-celtic culture was and is much more individualist. The protagonists on the Māori side of our present governance-wars are rhetorically harking back to the more collectivist worldview of their ancestral predecessors. And they are indulging in forms of co-sovereignty rhetoric that border on separate governance, without much explanation of what that means for individual Aotearoans.

One aspect of the more collectivist conceptual apparatus is the language, Te Reo. There is no explicit plural form. The word Māori covers Māori as a collective (or as a set of tribal collectives) and Māori as a set of individuals. While non-Māori used to refer to Māori as ‘Maoris’, this is simply not done in polite circles anymore. (I remember in 1984, how the leader of the “New Zelland Party” used to refer to “the Marries”.) Yet I do it here, as a way to emphasise my differentiation of collective Māori from individual ‘Maoris’.

In addition to pre-contact cultural differences in relation to the collective-individual spectrum, the established political Left and the established political Right (at least as we understand those terms in Aotearoa New Zealand; the United States has muddied those waters) define themselves through that spectrum. So Māori on the Left of politics have two predispositions towards collectivism. (Here we must note that the present ‘sovereignty debate’ is at least as much a debate within Māori as between Māori and non-Māori; the principal antagonists as well as the principal protagonists are conspicuously Māori. Twenty-first century Māori culture is by no means as collectivist as the rhetoric of the protagonists conveys; the divisions are Left versus Right, with a cultural overlay.)

Vertical Equity and ‘Targeting’; trickle-down or micro-management

Vertical equity is not a liberal concept (refer to my To be (a) liberal). Whereas horizontal equity means ‘treating equals equally’ – a concept central to (individualist) liberalism – vertical equity means ‘treating unequals unequally’. Discrimination. The liberals of the political Right, who emphasise the targeting of social services and public income distribution, square this illiberal circle by emphasising policies which solely target ‘need’; not race nor religion, not sex nor gender.

The political ‘progressives’ of the Left emphasise a collective form of targeting, but cannot (or refuse to) individualise this. Thus they may advocate more resources for Māori (and often tag-on Pasifika) and more resources for women; but they avoid any korero about individual discrimination.

At Budget-time, we have routinely heard the claim that there is not enough provision in the Budget – the government’s annual fiscal statement – for Māori. Perhaps less so from 2018 to 2022. But what does that mean? Resources for Māori? Or for ‘Maoris’?

The collectivist approach mandates that discrimination happens at the top-level of political society; at the governance level. Thus bureaucracies are created or extended – including governmental ‘entities’, and indeed ‘non-governmental’ entities (which nevertheless depend on government mandates) – which are openly discriminatory in their intent.

Discrimination in favour of an allegedly disadvantaged identity is justified through a process of leverage. Statistics are gathered from individuals and coded according to attributes – especially ethnicity, sex or gender, and health status; age and religion are less fashionable at present. The never unexpected results are then presented to justify forms of collective discrimination in the political process. Predictably, the incomes of ‘Maoris’ are lower on average than the incomes of ‘non-Maoris’, and female incomes are lower on average than male incomes.

The aim of this political process is not to remove these statistical differences. Rather it is to justify and extend identity bureaucracies – indeed to create advocacy ‘industries’ around such statistical differences – in such a way that there is a large suite of highly-paid jobs available to highlight these inequalities of averages. Such political theatre typically generates much heat and very little actionable ‘light’.

Essentially, what is supposed to happen is that much resource goes into these funded governance structures, and it is meant to trickle-down to the leverage group of disadvantaged people. The result in practice is that Left governments consume large slices of the national income, while achieving very little for the disadvantaged groups ostensibly being served. Trickle-down never worked. Instead the result is too much political superstructure and too little ballast. Government becomes top-heavy.

(These same principles apply to the under-provision – and particularly the lack of maintenance – of physical infrastructure as well. Hence all the water leaks from neglected pipes, and potholes across the roading network; pipes are ballast, and potholes are examples of missing ballast. Gold-plated schemes are created and discarded.)

Policies which benefit ‘Maoris’

The disconnect between the Treaty Māori and the leaders of the present government, is that the present leaders have an individualist mindset which means the parties talk past each other. Chrisopher Luxon genuinely wants to improve life for ‘Maoris’. Problems arise because his philosophical approach of targeting the needy – disproportionately ‘Maoris’ – has its own bureaucratic short-comings; and because his understandings of public finance are medieval (in the better sense of that word), and because he is a mercantilist at heart. Mr Luxon equates national progress with ‘making money’, with the accrual of financial wealth.

Nevertheless, and despite his philosophical blindspots, Luxon is correct to emphasise that expanding discriminatory superstructure is part of the problem, rather than a solution, to the statistical disadvantages used to justify that superstructure. Christoper Luxon and David Seymour clearly understand that effective direct support for the disadvantaged will disproportionately assist ‘Maoris’, because Maoris are disproportionately disadvantaged. Further, direct assistance also provides support for disadvantaged ‘non-Maoris’, who are no more nor less deserving. Indeed – and given the practical Ministry of Health definition of who is a ‘Maori’ – there are more disadvantaged ‘non-Maoris’ in Aotearoa New Zealand than disadvantaged ‘Maoris’ (because ‘Maoris’ represent perhaps twenty percent of that database of individual Aoteroans).

Collectivism and Individualism

As Stephen Joyce noted in his recent book, collectivism has an individual dimension and individualism necessarily has a collectivist dimension. Both sides of the present ‘debate’ need to expand their fields of vision, and address these blindspots.

‘Trickle-down’ policies have wasted much of this nation’s income. The Left version of trickle-down is no better than the Right version (which includes ‘tax-cuts for the rich’) which the Left like to lampoon. And the Right indulge in much more collectivism – albeit private sector collectivism – than they would ever want to admit. (Proper macro-accounting, incorporating public equity, helps to reveal the over-distribution of resources to elite private interests.)

It is clear that Christopher Luxon and David Seymour would have preferred not to have Winston Peters and Shane Jones as lead rhetoricians for their government. The irony is that, with one small adjustment to National’s tax policies, National would probably have got at least five percent more votes, and we would have a two-party rather than a three party coalition today. The adjustment was to have an income tax policy which only gave tax cuts to people earning less than $180,000 a year. National’s rhetoric of tax cuts to “low and middle income earners” was hollow, because everyone knew that high income earners were also getting the maximum tax cut (not counting a contrived higher amount only envisaged for a few thousand families). All National had to do was to bring the top tax threshold down to about $160,000 (refer my Christopher Luxon is tone deaf, 14 Nov 2023); but it did not do this, on account of its own lack of imagination and unwillingness to seek or take advice from outsiders.

Māori are important to Aotearoa New Zealand, not because of their ‘race’ but because they were Aotearoa’s first boat people. The Tiriti is not about ethnicity – though it is about indigeneity – and people who want to continue discussing its principles are not racist. Separatist agendas based on distinguishing individual Aotearoans on the basis of their race – their ethnicity, their ancestry – are racist. Collectivism averts the racist problem of individual discrimination, but creates another problem; the growth of an expanded high-earning elite class which leverages off rather than practically addresses socio-economic problems which are there for all to see.

Christopher Luxon operates by a mercantilist metaphor that sees Aotearoa New Zealand as a ship that must “go forward”. While that metaphor represents both shallow politics and shallow economics, the prime minister does at least understand that superstructure sinks ships.

*******

Keith Rankin (keith at rankin dot nz), trained as an economic historian, is a retired lecturer in Economics and Statistics. He lives in Auckland, New Zealand.

Fiji celebrated Constitution Day today virtually due to the ongoing civid-19 pandemic crisis, but many see the day as a hollow event not worth celebrating.

The national holiday marks the eighth year that the adoption of the controversial and contested 2013 Constitution by the Bainimarama government has been observed.

Among the critics this year is opposition National Federation Party (NFP) leader Professor Biman Prasad who says the document is “widely rejected” around the world while being “frequently ridiculed” at home in Fiji.

“Every year the FijiFirst Party desperately attempts to talk up the Constitution,” he declared in a statement today mocking the document.

“It even tries to suggest that it is one of the world’s best. Yet no serious constitutional lawyer believes so. Around the world it is widely rejected. In Fiji, it is frequently ridiculed.”

Prasad said the Constitution was nothing more than “a piece of paper if it is not honoured in spirit”.

“In Fiji, the Constitution does not belong to the people. The people live in fear of its institutions.”

Dr Prasad spelt out the reasons he believed caused this “national fear”:

• “Most people live in fear of the government. Many fear police assaults, which are now routine.
• “Other people fear being identified with the opposition, because they will be denied government benefits.
• “People who do not want to be vaccinated are denied welfare. Those who dissent with the government line on vaccinations are arrested.
• “Laws such as Bill 17 [introducing governance changes for indigenous land] are rammed through the Parliament without consultation. Even MPs who criticise these laws are detained and questioned by police.
• “Under our Constitution people have a right to health. Yet this government’s shocking handling of the covid-19 second wave has led to hundreds of deaths, both from the disease and from denied care. We have had some of the highest covid infection rates in the world.
• “Trade unions are refused the right to march to demand workers’ rights. And the government has not increased the already pitiful minimum wage for nearly five years. Even people with full-time work live in poverty.
• “Our Human Rights Commission is supposed to enforce and protect our constitutional rights. Yet it is widely ridiculed as a pro-government mouthpiece and a national joke.”

Dr Prasad lamented that this was the Constitution as Fiji lived it today – “the so-called ‘reality of the matter’.”

He pledged a National Federation Party government would abolish “Constitution Day” if elected in Fiji’s general election next year.

“We will instead create a Founders’ Day – a day to commemorate the great leaders of Fiji’s past, a reminder to all of us about those who led us in the lead-up to independence and helped to create our country.

“A NFP government will also reinstate Ratu Sukuna Day as a public holiday.

“We have been blessed with sound, wise leadership in the past. One day, good leadership will return to our country.”

Article by AsiaPacificReport.nz

How quickly things change.

If, as the old cliche goes, a week is a long time in politics then a month is an eternity.

As a story on the front page of the Weekend Observer revealed, the caretaker government is once again seeking to shape the outcome of judicial decision-making.

Caretaker Prime Minister Tuila’epa Dr Sa’ilele Malielegaoi and the Attorney-General, Savalenoa Mareva Betham-Savalenoa, have presented the Supreme Court with a motion requesting that certain judges not preside over a contempt of court motion filed against them.

The justices the pair are seeking to have removed via a recusal motion are the Chief Justice, Satiu Simativa Perese, Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren (“Tuilaepa wants judges off contempt case”).

Saturday’s revelation is the latest in a long and complex string of attempts by the caretaker Prime Minister to influence the judicial branch of government in his favour. But is also reflective of a curious trend: that Tuila’epa’s hand-picked jurist has fallen out of the caretaker Prime Minister’s favour.

Efforts to influence and bombard the court have recently reached their peak as the nation undergoes a constitutional crisis over Parliament’s failure to convene after April’s national election.

But these attempts to make the court empathetic to the caretaker Prime Minister were in fact underway long ago. They date back to when Tuila’epa was searching for a Chief Justice to replace Patu Tiava’asu’e Falefatu Sapolu who resigned in April 2019.

That time feels like a different era: before the measles epidemic, the global covid-19 pandemic and our current constitutional crisis.

Tuila’epa took an unhurried approach to choosing a permanent replacement for Patu, the longest-serving Chief Justice in Samoan history, with nearly 27 years of judicial experience under his belt.

In fact, Tuilaepa openly admitted that he was taking a passive approach to selecting the appropriate candidate and waiting for divine inspiration to guide him to select the best candidate.

“I am still praying and once I acquire the whispers from God, then a decision will be made,” Tuilaepa said at the time.

“If it takes up to six months, that’s not a bad thing at all,”

In fact, it took much longer than that. Samoa was without a permanent Chief Justice for more than a year while the Prime Minister waited for that divine whisper.

He eventually settled on Justice Satiu who was sworn-in in June last year.

The Prime Minister did not disclose the contents of any whispers he may have received from on high to guide his choice.

But at his swearing-in ceremony, Tuila’epa defended the amount of time he took in selecting a replacement, again maintaining that Justice Satiu’s installment was guided from above.

“It takes time to seek God’s face and turn to the Bible for guidance. And these things take time and the whispers [from the Holy Spirit],” he said.

As it happens, Justice Satiu has been resolute in changing the direction of the court.

But it has not been in the way that the caretaker Prime Minister perhaps envisioned; he has proven to be more of a thorn in Tuila’epa’s side than a blessing.

Justice Satiu, born in Magiagi, is deeply rooted in Samoan tradition, but he has also been influenced by the principles of judicial independence taught at the universities he attended in New Zealand and America. This commitment has been shown in his rulings on a flurry of post-election legal petitions.

His Honour, has time and time again, shown his loyalty to the principle of judicial independence during a time of intense legal wrangling.

But in doing so, the Chief Justice has countered widely held expectations about how he would rule from the bench.

In an April statement, issued shortly after national elections which are the root cause of our current power crisis he issued a short statement outlining his simple judicial philosophy.

“We are in a state of uncertainty after the General Election, but I wish to reassure ourselves as a community, that the role of the Judiciary as the Independent Branch of Government is to do right by all manner of people, without fear or favour affection or ill will,” he said.

“As sworn members of the Judiciary, we uphold that Oath to the best of our abilities so to adhere to the Rule of Law.”

All jurists know to affirm their commitment to judicial independence; sticking to them in practice is a different question altogether.

It was widely assumed that because such a long time was taken to approve his selection, Justice Satiu would lean towards the constitutional interpretations of Tuila’epa and that of his Human Rights Protection Party (HRPP).

But much to the caretaker Prime Minister’s frustration, Justice Satiu has upset all expectations by remaining cool and composed throughout the current legal onslaught and applied the law completely straight.

Fiame Naomi Mata’afa, the leader of the Faatuatua i le Atua Samoa ua Tasi (FAST) party condemned his early release from quarantine in May as a political manoeuvre “so that he [could] sit in on the electoral petitions.”

That led to Tuila’epa to leap to his defence as a principled jurist, while he was attacking unnamed members in Samoa’s judiciary of being biased against him:

“It’s apparent from the criticism that the Chief Justice is an honest person,” he said on his programme on state-owned radio 2AP.

“[Fiame’s…] criticism is due to the fact [the Chief Justice] is independent.”

But now Tuila’epa is seeking to avoid having him preside over a trial in which he is involved. How quickly perceptions change.

Before the month of May was out and the FAST party held its own swearing-in ceremony on the lawns of a locked down Parliamentary precinct, the appraisal of the Chief Justice’s integrity has changed considerably.

The office of the government’s lawyer, the Attorney-General, maligned his integrity in a later retracted media statement claiming he had too often ruled in FAST’s favour and was even a “close relative” of Fiame’s.

He also drew criticism for walking to Parliament to try and open its doors on May 24 after being on a panel that determined Parliament had to sit on that day. (The doors had been locked on orders of the former Speaker Leaupepe Toleafoa Faafisi, who is himself facing a motion of contempt).

“The actions of the Chief Justice indicate that he may be in contempt of Parliament,” a statement from the Attorney-General’s office said.

But throughout this personal disparagement during our current constitutional crisis, Justice Satiu has maintained cool and composed and methodically applied the law and stayed true to his oath to protect and uphold Samoa’s constitution.

Perhaps His Honour Satiu Simativa Perese was indeed a gift from God — just not the kind that the caretaker Prime Minister was hoping to receive.

Article by AsiaPacificReport.nz

Samoa’s Court of Appeal (CA) ruled yesterday that Article 44(1A) of the Constitution requires that six women should sit in Parliament. With all due respect, I believe that the CA’s decision was incorrect.

This is on the grounds that the CA has overreached its powers by encroaching on the law-making powers of Parliament and has made an unpragmatic (or impractical) decision that has now prolonged and further complicated Samoa’s constitutional crisis.

While the CA’s decision is final and cannot be appealed, I believe that it is still important that this decision be critiqued because the decision has set a dangerous precedent for future judges interpreting the Constitution — a precedent which essentially signals to them that they can disregard the clear and unequivocal words of the Constitution and insert their own words as they see fit.

To be clear, nothing in this critique should be taken as my disapproval or dissatisfaction with the fact that more women are now required to sit in Parliament.

It goes without saying that having only six women in a Parliament with 51 seats is shameful for any country and is representative of a deeply entrenched gender inequity problem in Samoa that must be addressed.

However, I believe that it is important for all Samoans to understand both the dangerous precedent that has been set by the CA and the wider implications of the decision on Samoa’s constitutional crisis.

Accordingly, I set out three reasons here why I believe that that the CA’s decision was incorrect:

1. The CA encroached on the law-making powers of Parliament by ignoring the explicit wording of Article 44 of the Constitution
As stated in the Supreme Court’s judgment, the court’s function is to “give primary attention to the words used, and the Court does not have the power and ability to go beyond the clear and unequivocal words used”. This function was made clear in three previous landmark Court of Appeal cases on constitutional interpretation: Attorney-General v Saipaia Olomalu, Mulitalo v Attorney General, and Jackson & Ors v Attorney General.

This statement of the court’s function recognises the fundamental importance of the doctrine of separation of powers in any democracy. The doctrine of separation of powers follows that it is only for the democratically elected Parliament to make and amend the law (including the Constitution) and the courts, as the unelected independent body, should only interpret and apply the law as Parliament intended and not make or amend the law themselves.

In this case, the “clear and unequivocal words” of Article 44(1A)(a) that the Court of Appeal had to apply are: “…women Members of the Legislative Assembly shall: (a) consist of a minimum of 10 percent of the Members of the Legislative Assembly specified under clause (1) which for the avoidance of doubt is presently 5”.

Therefore, the CA’s decision to ignore the explicit wording of Article 44(1A) demonstrates that it consciously chose not to take the correct approach to interpret the Constitution that has been laid down in key landmark cases.

In the CA’s judgment, they state that “there is a principled way to resolve the two ideas which are presently before the court…guided by well-established principles of interpretation from earlier rulings of this Court”.

In my view, the CA’s approach to constitutional interpretation was not at all “principled”, but bizarre and dubious in a way that hopefully would not be adopted by any courts after them. This dubious approach was supported and encouraged by the arguments submitted by counsel for the appellants, that in my view, were insincere and unduly motivated by political gain.

In adopting this dubious approach, the CA deliberately ignored the great (if not determinative) significance of the passing of the Constitution Amendment Act 2019. This 2019 Act amended Article 44 to increase the number of seats in Parliament from 49 to 51 specifically for the “2021 general elections”

If they gave proper consideration to the impact of the 2019 Act, the CA would have recognised that if Parliament wanted to increase the minimum number of seats for women to six, they would have changed “five” to “six” while amending Article 44 for the “2021 general elections” when they had the chance. However, Parliament did not do this, and the courts are not authorised to do this for them.

Parliament’s choice to leave “five” in Article 44(1A)(a) untouched while amending other parts of the Article 44 specifically should be taken as a clear indication that they intended the minimum number of women to remain “five” and not “six” for the “2021 general elections”. Again, it should be emphasised that under the doctrine of the separation of powers, only Parliament can amend the Constitution as the democratically elected body – not the unelected judiciary.

In an attempt to reason or justify their disregard for the clear and unambiguous wording of the Constitution, the CA looked to the overall purpose of Article 44(1A) and said that: “We consider that Article 44 1A [of the constitution] is ambiguous as to the ideas it promotes and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa.”

However, the CA knew, or should have known, that it is not for them, as a body of unelected apolitical justices, to consider political matters like what “best promotes the establishment of human rights practice in Samoa”. It is only for Parliament to do so as the democratically elected body which has been chosen by the people of Samoa to debate and legislate on these political issues.

This particular separation of powers is in place for a very good reason — Parliament is the only body that has the capabilities, time and resources to consider submissions from people in Samoa, (including experts and groups specialising in the relevant issues) in order to make the best laws possible that represent the will of the people. In contrast, the courts do not have the capabilities, time and resources to fully consider matters of great importance before making or amending the law (including the Constitution).

More fundamentally, judges and justices of the courts have not been elected by the people or appointed by elected officials based on their political views or sensibilities as MPs have. In fact, they have the constitutional mandate to act apolitically and objectively when interpreting and applying the law.

Therefore, I believe that the CA’s decision sets a dangerous precedent for other courts to possibly follow, where they have signalled to other judges and justices who’ll interpret the Constitution that they’re permitted to disregard clear and unequivocal words of the Constitution and insert their own words as they see fit.

2. The CA has encroached on the law-making powers of Parliament by creating its own process for Article 44(1A)

Another major part of the CA’s decision is the finding that a sixth woman can only be added only after all petitions and potential byelections have been completed.

For reasons similar to the ones I have given above, I argue that the CA’s creation of a process for Article 44(1A) was an overreach of their powers because it is only for Parliament to design and explicitly set out this process in the Constitution or any relevant legislation (i.e. the Electoral Act).

This was rightfully respected by Justice Tuatagaloa and Justice Vaai in the Supreme Court, who observed in their joint judgment that Parliament needed to provide:

“Some clarity as to the ‘process’ to be followed when Article 44(1A) is activated. There is no process provided in regards to a woman candidate appointed pursuant to Article 44(1A). Section 84 of the Electoral Act refers to successful candidates or elected candidates. Section 2 of the Electoral Act defines the word ‘election’ means the election of a Member in a general election or byelection to represent a constituency. The woman candidate coming in through Article 44(1A) is (in our view) not ‘elected’.”

Here, Justice Tuatagaloa and Justice Vaai acknowledge that Parliament (in 2013 and 2019) unfortunately did not provide a clear process for the activation of Article 44(1A). However, both justices chose not to go beyond their constitutional powers to engineer and create this process themselves.

Instead, they appreciated that it is only appropriate for Parliament to create this process lawfully and transparently after they have taken the time to fully consider the merits of different options and ideas.

Unfortunately, the CA did not show such respect for Parliament and the separation of powers and decided to engineer and create their own process for Article 44(1A) in less than three days.

In my view, the CA should have simply interpreted the clear and unambiguous words of Article 44(1A) as mentioned above, and stated that it was therefore unnecessary for them to discuss the process as this was a matter for Parliament to determine.

While the CA attempted to design their process with some regard to the practical realities surrounding election petitions, counter petitions and potential byelections — it was still wrong for them to create this process in the fraught context of a dispute in which arguments from parties, namely the appellants, are motivated by political gain.

Therefore, it would not be surprising if the rushed and unprincipled manner in which the CA created the process provides even more confusion, ambiguity, conflict and controversy in the near or distant future. In any case, it is hoped that the new Parliament takes the time needed to fix the problems with Article 44(1A), before designing a new process following its activation, fairly and democratically.

3. The CA’s process for Article 44 is unpragmatic for prolonging and further complicating Samoa’s constitutional crisis

Aside from the issues with the CA’s problematic interpretation of the Constitution, the CA’s decision should also be criticised as being unpragmatic (or in other words, impractical) for having the effect of prolonging and further complicating Samoa’s constitutional crisis.

The CA’s finding that a sixth woman can only be added after all petitions and potential byelections have been completed (and there are still only five women MPs), means that the addition of another woman MP could be several months away. This is due to the sheer volume of petitions that the courts are due to consider next week, a reality the CA was no doubt aware of.

While the courts are not necessarily required to be influenced by what is pragmatic and best for the general wellbeing and smooth running of the country, it is hoped that they at least do not go out of their way to make decisions that would create further uncertainty and delay in a country suffering from an already drawn out constitutional crisis.

Of course, there is already a degree of uncertainty around which party would hold the majority of seats due to the unprecedented number of petitions that have been filed and are yet to be heard,

However, adding the potential activation of Article 44(1A) to the mix does not help things at all. This has already been seen by how both the leaders of the FAST party and the HRPP have interpreted the CA’s decision to mean that their parties hold the majority in judgement and should be able to govern until the election petitions and any potential by-elections are completed.

In my view, had the CA interpreted Article 44(1A) in the correct, honest and principled manner (to find that the minimum number of seats for women is “five” and not six) this would not be a legitimate dispute as the leader of the HRPP would not have any real reason to believe that a sixth woman MP could be added as a 52nd seat in parliament in their favour.

FAST would then have a clearer path for transitioning into the government — a path which I believe they legitimately have because in my view, their convening of parliament was legitimate and constitutional in the extraordinary circumstances Samoa was facing. [NOTE: Although the constitutionality of FAST’s swearing-in on 24 May 2021 is another matter due to be heard by the courts on Friday, I have argued in a previous opinion piece that their swearing-in was constitutional and that the courts should declare this when they do rule on this case — most likely sometime next week.]

Another practical problem the CA could have (and should have) avoided was the risk of creating an even-numbered hung Parliament of 52, with each party having 26 seats. When Article 44(1A) was introduced in 2013, the parliament of that day (and any day up to the 2021 general election) didn’t foresee that its activation could lead to an even-numbered hung parliament which could create major issues in the future. For example, a hung 52 seated parliament (with 26 seats for both parties) could lead the Head of State to use their powers under Article 63 to dissolve parliament and call for a new general election on the grounds that the office of the Prime Minister has vacant beyond a “reasonable period” of time (Article 63(2)) or that the Prime Minister does not command the majority in parliament (Article 63(3)). With due respect, it can only be hoped that this wasn’t the underlying motivation behind the CA’s decision.

In any case, there is an urgent need for a government to come into power to govern Samoa. This is not only because Samoa is in a global pandemic, but also because the government should have already set and announced its annual budget by this time in the year. Therefore, the CA’s decision shows an unfortunate lack of pragmatism for which the people of Samoa will continue to bear the costs.

A case of ‘judicial activism’?
Some might celebrate and defend the CA’s decision as a case of “judicial activism” because it was apparently decided in the interests of gender equality and human rights in Samoa.

“Judicial activism” is a term that refers to when judges go outside their apolitical and objective roles to become “activists” in the courtroom pursuing their political agendas. They do this by interpreting and applying laws in a way that is obviously incorrect and contrary to established legal principles because they believe that the outcome would be morally unacceptable and unjust according to their political beliefs if they did not.

One key instance of “judicial activism” in New Zealand was in the 1985 case of Finnigan v New Zealand Rugby Football. In this case, the Court of Appeal of NZ disregarded well established legal principles in order to prevent the All Blacks from touring South Africa during the nation’s apartheid era.

It is well known now that the justices hearing this case were influenced not only by anti-apartheid protests outside the courtroom but by their own values and beliefs against South Africa’s racist system.

Of course, anyone committed to anti-racism (and the fundamental human right to freedom from discrimination) would not question or fault the Court of Appeal of NZ for being judicial activists in the Finnigan case. However, in my view, the CA’s decision should not be seen or understood as a legitimate and justified case of “judicial activism” like that in Finnigan.

Some may disagree and argue that the need to have six women (rather than five) in Parliament is a critically urgent and important human rights and social justice issue that is analogous or comparable to the moral dilemma the NZ justices faced in the Finnigan case.

However, if anything, this litigation has shown that Article 44(1A) is a deeply flawed mechanism for ensuring the representation of women in Parliament and upholding Samoa’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In my view, instead of further complicating a deeply flawed mechanism during a constitutional crisis, the CA should have upheld the observations of Justice Tuatagaloa and Justice Vaai in the Supreme Court to allow Parliament (and the people of Samoa whose voices they represent) to improve Samoa’s deeply entrenched gender inequity issue in the fair and transparent manner that is expected of a democratic state.

In terms of what a new gender-based quota system for Samoa would look like, it is clear that the new Parliament will need to pay closer attention to the laws and experiences of other democratic countries that have introduced similar gender-based quota laws, such as Finland, Sweden, Norway, and Denmark who have since achieved an average of 40 percent women in their parliaments.

It’s also important that the new Parliament tackle deeply entrenched gender inequity in Samoan politics more broadly. A 2015 report on “Political Representation and Women’s Empowerment in Samoa” by the Centre for Samoan Studies at the National University of Samoa (NUS) found that Article 44(1A) would “not address what this research found to be the core issue: the barriers to women’s equal participation in local government” and that Samoa does not have gender parity laws and candidate pre-selection mechanisms that other countries like France, Timor-Leste, Senegal and Rwanda have introduced to increase the number of women in their parliaments.

Similarly, Kiki Matire has commented that while Article 44(1A) would increase the representation of women in Samoa’s parliament, “much more needs to be done to address the cultural and tangible obstacles to women as political leaders”.

Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland. He holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland. This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Samoa’s Parliament will convene tomorrow as originally planned

The Supreme Court has issued orders to uphold the original proclamation, dated 20 May 2021, by the Head of State of Samoa to convene the country’s 17th Parliament following the April 9 general election.

The orders of the court were signed and issued today in an unprecedented urgent Sunday sitting by Chief Justice Satiu Simativa Perese with Justice Tafaoimalo Tologata Leilani Tuala-Warren and Justice Vui Clarence Nelson.

The court orders declare the original Proclamation of the Head of State as lawful while stating that any subsequent or conflicting declarations were not aligned with the Constitution, and also went against recent judgments of the court.

Speaking to the media outside court, former Attorney-General Taulapapa Brenda Heather-Latu confirmed the court orders had addressed a challenge filed by Latu Lawyers on behalf FAST party, challenging the late night proclamation by the Head of State to suspend the opening of Parliament.

“Those were basically the two orders.”

Is Samoa in a constitutional crisis? https://t.co/ILl6ohKEQM

— Te Ao with MOANA (@TeAoWithMOANA) May 22, 2021

Asked if the nation could expect another move to “sabotage” Parliament convening in the next 12 hours, Taulapapa said her clients, the FAST party, stood prepared for anything further developments.

FAST party ‘prepared’
“Our clients are prepared to address anything else that might come up, and continue to rely on God’s grace.”

A special sitting of the Supreme Court was held 11am today following an application by FAST lawyers led by former Heather-Latu challenging a late night proclamation by the Head of State issued by email from the Government Press Secretariat at 9.09pm last night.

The second proclamation issued within 48 hours by Samoa’s Head of State HH Tuimalealiifano Va’aletoa Sualauvi II sent a wave of shock through the nation, as it proclaimed a suspension on his original writ, and postponed Parliament from convening tomorrow morning.

The court also directed that a copy of the orders be given immediately to the Clerk of the Legislative Assembly.

Meanwhile, in another twist to yesterday’s proclamation, RNZ Pacific reports that the Head of State has departed his official residence in Apia’s Vailele and returned to his village of Matautu-Falelatai on Upolu’s south-west coast.

The move has included a police guard, reportedly for his safety.

Last week, a bus load of matai from the village arrived at his residence in the capital to offer their support after some threats had been made against him on social media.

RNZ Pacific correspondent in Apia, Autagavaia Tipi Autagavaia, said the Tuimaleali’ifano left Vailele yesterday after making the latest proclamation.

“And moved to his village. He’s now there and operating from his village of Matautu-Falelatai. And now you see police officers are there protecting him.”

The Head of State’s village is nearly two hours from the capital, Apia.

Sina Retzlaff is a Samoa Global News website journalist.

So it’s clear: the @nytimes seems to be doing a better and more committed job of covering the Samoan election than the whole NZ media. (Excepting Radio NZ Pacific–which is tasked with Pacific, and which still doesn’t have someone in Samoa). #Embarrassing #nzpol #palota2021 https://t.co/moVXQJI9kP

— Damon Salesa (@DamonSalesa) May 22, 2021

Article by AsiaPacificReport.nz

The United Liberation Movement for West Papua says it is adopting a provisional constitution for a democratic state.

The organisation is seeking a referendum in West Papua on independence from Indonesia.

The movement’s Legislative Council had been holding its third annual session in Jayapura.

It decided that the movement’s bylaws should be upgraded to provisional constitutional status as part of the journey to achieving independence.

The Provisional Constitution would establish a government guided by rules and norms of democracy, human rights and self-determination.

The movement said every element of the Provisional Constitution was democratic, and designed to protect West Papuan culture and way of life.

It also said as well as the rights of indigenous Papuans, customary land ownership and gender equality, the constitution defended the rights of Indonesian migrants in West Papua.

Established environment protections
It also said it established protections in law for the environment, all religions and every living being.

“We have learnt from the world the need to protect and build education, healthcare and renewable energy,” a statement from the ULMWP executive said.

To date, Indonesia’s government has ruled out a referendum on West Papuan independence.

It had also condemned the leadership of the ULMWP’s chairman Benny Wenda, saying Papuans already freely elect their own leaders within the Indonesian republic.

However Wenda’s recent call for Indonesian military forces to pull back from Papua was echoed by Papuan churches which wrote to President Joko Widodo, concerned about security forces’ crackdowns on student protests.

Meanwhile, the movement’s congress adopted a resolution that “fully accepts and supports the political positions taken by the people of West Papua in their rejection of the Law No. 21, 2001 on Special Autonomy for Papua”.

“We are not going to bow down to Jakarta’s renewal of so-called Special Autonomy. We are reclaiming our sovereignty from Indonesia,” Wenda said in a statement.

“We are working towards establishing a government in West Papua, a government that can lead us to our goal of a referendum and beyond.”

Article by AsiaPacificReport.nz

By Felipe F. Salvosa II in Manila

New York-based Human Rights Watch has led a barrage of condemnation against the Duterte government’s “assault on media freedom” by filing a court petition to void the franchise of ABS-CBN, the largest television network in the Philippines.

The petition for quo warranto accuses ABS-CBN of skirting the ban on foreign ownership of mass media and illegally operating a digital for-pay channel and a subsidiary for mobile and digital TV platforms. The publicly listed company denies the allegations.

Shares in ABS-CBN fell 1.76 percent to 16.70 pesos each following news of the quo warranto petition filed by Solicitor-General Jose Calida, who campaigned for President Rodrigo Duterte in the 2016 election.

READ MORE: Duterte top state lawyer asks Supreme Court to shut ‘abusive’ media network

HRW said in a statement that the Philippine Congress should thwart the Duterte government’s “misuse” of regulatory powers, adding that Calida’s action could prevent the renewal of ABS-CBN’s 25-year franchise, which expires on March 30.

“Philippine legislators have a responsibility to uphold media freedom and resist administration efforts to pressure news outlets to toe the government’s line,” said HRW Philippines researcher Carlos Conde.

“President Duterte’s administration should cease its politically motivated legal actions against the network.”

HRW also said the Philippines licence renewal process allowed Congress to put “inappropriate pressure” on broadcast networks.

‘All-out assault’
“The administration’s attempt to cancel ABS-CBN’s franchise or deny its extension is not just an attack on a single network, but an all-out assault on media freedom,” Conde said.

“Complaints against broadcasters should be addressed in the proper forum, such as the National Telecommunications Commission.”

The Foreign Correspondents Association of the Philippines (FOCAP) also denounced the government’s move, citing ABS-CBN as a “cornerstone of Philippine democracy and the free press for its independent and critical reportage and massive following in the country and abroad”.

“The constitutional violation and other legal infractions raised by the Solicitor-General in his quo warranto petition before the Supreme Court have been denied by ABS-CBN and questioned by some members of the legislature, which has exclusive rights to grant such franchises,” FOCAP said.

“These moves politically harass and threaten a pillar of the media industry that employs thousands of Filipinos and has played a crucial part in helping fight official corruption and abuse for decades.

“We call on Congress to act independently. We call on our Supreme Court Justices to side with the people’s right to truthful and independent news, the Constitution and democracy. We call on our media colleagues to close ranks in this perilous time,” FOCAP said.

The University of the Philippines College of Mass Communication said Calida’s action was “another blatant attack on the freedom of the press”.

Silencing media voices
“In filing a ‘quo warranto’ against ABS-CBN, the current administration demonstrates the lengths that they will go to silence critical media voices,” it said in a statement.

“It has been 34 years since we won back our right to information and a free press through the 1986 EDSA Revolution.

“However, government actions such as these show us the volatility of this hard-won freedom, the need to remain vigilant so as to not allow history to repeat itself,” it said.

“As we have seen in the recent past, multiple tactics have been used to attack the media—from the legal harassment of ABS-CBN and Rappler to the use of spurious data and fake news against media institutions like VERA Files and the Philippine Centre for Investigative Journalism.”

Opposition senator Francis Pangilinan criticised the Duterte government for “training its guns” on critics amid the outbreak of the novel coronavirus.

Another opposition lawmaker, Risa Hontiveros, argued that a quo warranto petition wouldn’t succeed.

“The provision attacks a corporation that was not legally incorporated. ABS-CBN, is, of course, legally incorporated,” she said.

‘Vindictive move’
“I see the Solicitor-General’s quo warranto petition against ABS-CBN as an attack on the free press and a vindictive move against critical journalism,” she added.

The leader of the Senate minority, Franklin Drilon, cast doubt on Calida’s motivation, noting that the petition, which would require weeks – if not months – to resolve, would become useless when ABS-CBN’s franchise expired next month.

“If between now and March, Congress decides to hear the franchise renewal of ABS-CBN — all these issues raised by SolGen Calida in his quo warranto petition can be taken up during the hearing,” Drilon said.

Felipe F. Salvosa II is coordinator of the Journalism Programme in the Department of Communication and Media Studies at the University of Santo Tomas in Manila.

Article by AsiaPacificReport.nz

By Ralf Rivas in Manila

After the ousting of the Philippines’ Chief Justice Maria Lourdes Sereno, the six justices who voted against the quo warranto petition have claimed the decision has made the Office of the Solicitor-General more powerful.

The justices raised their concern in their separate dissenting opinions following the Supreme Court’s 8-6 unprecedented and historic vote in favour of the petition – a prerogative warrant – on Friday.

Associate Justice Mariano del Castillo wrote in his dissenting opinion that the decision of the majority had granted the Solicitor-General (SolGen) powers to “remake the composition” of the High Court, “causing the removal of its members”.

READ MORE: Quo warranto v elected impeachable allowed, says Supreme Court

“With the SolGen wielding a quo warranto sword of Damocles over the heads of these officers, the Filipino people cannot be assured that they will discharge their constitutional mandate and functions without fear or favor,” said Del Castillo.

Without such assurance, there can be no guarantee that the primordial interest of the sovereign people is promoted.”

-Partners-

Del Castillo called the SolGen’s move a form of “constitutional adventurism”.

The quo warranto petition to remove Sereno from office was on the basis of an alleged invalid appointment.

The decision is “immediately executory without need for further action,” SC spokesperson Theodore Te said during Friday’s press briefing.

‘Violated requirements’
Nine of the justices said she violated requirements on the Statement of Assets, Liabilities, and Net Worth (SALN). The same number of justices ruled that quo warranto was the proper remedy in the ouster of Sereno.

This is the first time that the Supreme Court has removed its own chief, in a petition widely slammed for violating Sereno’s constitutional right to an impeachment process.

Sereno is the second chief justice to be removed from office after Renato Corona was ousted in 2012. He was found guilty of betraying the public trust and committing culpable violation of the Constitution.

Associate Justice Mariano del Castillo’s sentiment was echoed by the dissenting opinions of Associate Justices Marvic Leonen and Benjamin Caguioa.

Lawmakers, including Senate Minority Leaders Franklin Drilon, a former justice secretary, shared the same concern.

The others who voted against the petition are Senior Associate Justice Antonio Carpio and Associate Justices Presbitero Velasco Jr, and Estela Perlas-Bernabe.

Quo warranto or impeachment?
The six dissenters all agreed that impeachment was the only way to unseat an impeachable officer like Sereno.

Del Castillo stressed that allowing the quo warranto proceeding “impairs the independence of constitutional offices”.

Bernabe wrote in her opinion that the OSG should have questioned the discretion of the Judicial and Bar Council (JBC) to include Sereno in the shortlist of chief justice applicants.

Bernabe pointed out that the OSG “voluntarily admitted that the JBC’s grave abuse of discretion is not at all an issue.”

In his dissenting opinion, Velasco relayed the same sentiment.

“There was no attempt to assail and contest much less nullify the JBC’s findings that the respondent possessed all qualifications, the JBC’s decision must stand,” Velasco said.

Yes to quo warranto but…
Velasco said that the “remedy of quo warranto is available to unseat, in the extreme, even an impeachable officer”.

However, he clarified that the one-year prescribed period for filing such a petition had lapsed. He said that Sereno’s nomination and appointment “has not been timely challenged, much less nullified,” and that “the findings and qualifications should be respected.”

Velasco insisted that the OSG had to file a petition for certiorari against the JBC before seeking Sereno’s removal from office.

Bernabe also said that impeachment was not the sole move of removing impeachable officials as it would be “clearly absurd for any of them to remain in office despite their failure to meet the minimum eligibility requirements”.

She said that there “should be a remedy to oust all our public officials, no matter how high-ranking they are, or how critical their functions may be,” but after clear “determination that they have not actually qualified for election or appointment”.

Bernabe stressed that the JBC’s rigorous process was lenient on the Statement of Assets, Liabilities, and Net Worth (SALN) requirement. In fact, none of the applicants were able to submit all SALNs up to 2012.

Despite voting for the retention of Sereno, Bernabe said she made no claim that Sereno “is or is not a person of integrity.”

“In fact, if there is one thing that is glaringly apparent from these proceedings, it is actually the lack of respondent’s candor and forthrightness in the submission of her SALNs. Integrity must be threshed out in the appropriate case for certiorari,” Bernabe said.

Article by AsiaPacificReport.nz

By Philip Cass of Kaniva News

The King of Tonga has no right to judge the merits of legislation passed by Parliament, according to a New Zealand constitutional legal expert.

Dr Rodney Harrison said that under the 2010 Constitution, review and evaluation of the merits of legislation passed by the General Assembly did not fall within the scope of the king’s powers of sanction and signature.

Dr Harrison said the king had withheld or deferred his signature from a number of pieces of legislation because it was deemed to be inappropriate or unconstitutional.

He said the new Constitution excluded the King and Privy Council from the role of governing the Kingdom.

He said judgements about whether legislation was constitutional went against the doctrine of the separation of powers and the role and independence of the judiciary.

He said the Royal Assent Order 2011, under which the King and Privy Council purported to act, was therefore invalid.

-Partners-

Dr Harrison was asked to give an opinion on the legality of the Royal Assent Order 2011 by the Prime Minister’s Office.

Real problem
However, Dr Harrison said challenging the validity of the Order in court would not solve the real problem, which was the regular deferral or refusal of royal assent for legislation that had been approved by Parliament.

“The underlying problem is not the legal validity of the Royal Assent Order as such,” Dr Harrison said.

“The underlying problem is the view currently held by His Majesty or at least by the Privy Council and, in particular the Law Lords as His advisors, as to the extent of the King’s power to grant or refuse the Royal Assent conferred by Clause 56 of the Constitution.

“It is that in my respectful opinion erroneous view of the King’s constitutional powers that needs to be addressed, hopefully by reasoned persuasion or if not, by judicial ruling.”

Dr Harrison said the old Tongan constitution made it clear that the three arms of government had to be kept separate as a safeguard for the proper running of the country and the safeguarding of the liberties of its people.

The Royal Assent Order 2010 challenged the underlying assumptions of the Tongan constitution. The Order allowed the King to appoint privy councillors as advisers and a Judicial Committee had also been established by the Privy Council in 2011.

Dr Harrison said any powers and functions conferred on any such committee, must be consistent with the overall scheme of the Constitution and any other statutory or fundamental legal principle.

King’s signature
Clause 41 of the Constitution required that “Acts that have passed the Legislative Assembly” must “bear the King’s signature before they become law”.

He said that under the new Constitution the king did not have complete discretion to refuse to sign an Act that had been passed by the Legislative Assembly.

He said changes to the constitution in 2010 had shifted the balance of power from the king to Parliament. This meant that the king should exercise his veto on legislation only in “truly exceptional circumstances and for compelling reason.”

Problems had arisen because the king had deferred assent to legislation passed by Parliament on the advice of Privy Councillors and the Law Lords appointed by the king to the Judicial Committee.

Dr Harrison said the Law Lords played no specific constitutional role, other than that of providing the King with advice.

They could not be permitted to operate de facto as judicial officers and did not have any constitutional function or role as scrutineers of legislation or the legislative process.

“The most fundamental problem with the Royal Assent Order is that it purports to confer on the Judicial Committee and ultimately the Privy Council power to review Acts duly passed by the Legislative Assembly and ultimately to determine whether each such Act is an ‘appropriate’ or ‘inappropriate’ recipient of the Royal Assent; and whether any such Act is or even may be unconstitutional,” Dr Harrison said.

Merits of legislation
“Under the new Constitution, review and evaluation of the merits of legislation passed by the General Assembly do not fall within the scope of the King’s powers of sanction (and signature).

“The ‘inappropriateness’ assessment falls foul of the new Constitution’s exclusion of the King and Privy Council from the role of governing the Kingdom. The constitutionality assessment does likewise, and in addition offends against the constitutional separation of powers and specifically the role and independence of the judiciary.

“If the assessments which the Royal Assent Order purports to authorise fall outside the constitutional powers of the King Himself, it necessarily follows that they cannot be empowered by means of the Royal Assent Order, as a mere Order in Council purportedly made pursuant to Clause 50(3) of the Constitution. On that basis, the Royal Assent Order must be seen as invalid.”

Dr Harrison said the Royal Assent Order was also invalid because it purported to confer the ultimate power of decision and assessment on the Privy Council, when it was only intended to provide a mechanism for giving advice to the King.

Media academic Dr Philip Cass is an adviser to the Kaniva News website. This article is republished by arrangement.

Article by AsiaPacificReport.nz

By Lian Buan in Manila

Philippine Solicitor-General Jose Calida says nothing – not the Supreme Court (SC) and not even the Constitution – can stop President Rodrigo Duterte and Congress from further extending martial law.

“The Court cannot, in the absence of any express or implied prohibition in the 1987 Constitution, prevent the Congress from granting further extensions of the proclamation or suspension,” Calida said in his 99-page memorandum sent to the Supreme Court yesterday.

Calida said further extensions were possible “for as long as the Congress believes that the invasion or rebellion continues to exist, and the public safety requires it”.

READ MORE: Justice pushes for ‘broader criteria’ for declaring martial law

This is what the House minority bloc warned against.

In their petition seeking to nullify the re-extension of martial law in the southern island of Mindanao to the end of 2018, the lawmakers said the Philippines was heading towards a “martial law in perpetuity.”

-Partners-

Presidential Spokesperson Harry Roque said there was no need to fear this because the Constitution did not allow a perpetual martial law.

Calida does not share the same opinion.

“The period for which the Congress can extend the proclamation of martial law and suspension of the privilege of the writ of habeas corpus is a matter that the august body can itself define, unshackled by any predetermined length of time, contrary to the petitioners’ erroneous submission,” the Solicitor-General said.

If Calida’s line of argument is to be upheld, Edre Olalia of the National Union of People’s Lawyers (NUPL) said: “Congress can extend martial law until kingdom come and the SC cannot do anything but to genuflect and grovel. Preposterous!”

Supreme Court’s power of judicial review
Calida also insists in his memorandum that extending martial law is not within the Court’s power of judicial review.

“The determination of the length of the extension is a power vested only in the Congress. It involves the exercise of its wisdom. The issue is a political question that judicial review cannot delve into,” Calida said.

But oddly enough, when it came to addressing the fear of a perpetual martial law, Calida changed tone and said one of the constitutional safeguards against abuse of the executive was that the Supreme Court can always step in.

“The extension is subject to judicial scrutiny upon the exercise of any citizen of his or her right to question the sufficiency of its factual basis, as exemplified by the very action now before this Honourable Court,” Calida said.

The paragraph above contradicts Calida’s many statements within the same memorandum that insists SC does not enjoy that power.

For example, one of Calida’s main arguments is that “the extension may not be impugned on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction”.

In fact, that argument is contained in his very first pleading to the SC, saying that proclamation is different from extension. SC had already ruled that it has the power to review martial law proclamations.

Political question
Petitioners said that one of the grounds to nullify the extension was that the Congress leadership approved it in undue haste.

In response, Calida said that the Congress’ approval is a perfect example of a political question. The doctrine of political question is invoked when the executive and the legislative resist being reviewed by the judiciary.

“The Congress has full discretionary authority to decide how to go about the debates and the voting. In other words, the issues that the petitioners raise are political and non-justiciable. The questions presented essentially go into the wisdom of the Congressional action,” Calida said.

Calida dedicated 3 pages of his memorandum to stressing that the judiciary cannot interfere in the business of the executive and legislative branches, if the business is a political question.

“This despite the fact that political question limitation has already been debunked and abandoned by Article VIII, Section 1 of the Constitution,” Olalia said.

Olalia was referring to the constitutional power given to the judiciary to review whether the two other branches of government exercised grave abuse of discretion.

A sub-committee at the House of Representatives is proposing to delete that provision once and for all, something that retired Supreme Court justice Vicente Mendoza warned against.

“It needs serious study because deletion of this phrase mght be used to render SC powerless,” Mendoza said.

• Pacific Media Centre reports: President Duterte placed Mindanao and its nearby islands under martial law on 23 May 2017 in response to the Battle of Marawi against Islamic State (ISIL), including Maute and Abu Sayyaf Salafi jihadist groupsNon-Muslim indigenous Lumad people of Mindanao have opposed martial rule and many human rights violations have been recorded by independent human rights organisations.Duterte has threatened to extend martial law across the whole country. The Philippine Congress on 17 December 2017 endorsed Duterte’s request to extend martial law until the end of 2018.
  

Lian Buan is a journalist writing for Rappler.

Article by AsiaPacificReport.nz

Indonesia is set to lose its first and only female constitutional justice, whose term is up next year, potentially dealing a blow to women’s rights in a country where they’re being challenged in the face of growing religious conservatism.

Maria Farida Indrati will end her second and final term in about eight months, leaving the nine-member board of justices entirely male on one of the two highest courts in the country — where cases on discrimination, domestic violence, early-age marriage and female political participation continually arise.

The constitutional court differs from the supreme court, where the top judges are all male and which determines final appeal in legal matters not deemed to be constitutional.

“The point of view I bring to the table is different from what my male colleagues present,” the 68-year-old judge told Bloomberg in an interview.

It’s not a certainty that Indrati’s replacement, who likely will be chosen by President Joko Widodo from a list of three candidates picked by a committee, will be male.

While her successor won’t be known for several months or even until after her departure, Indrati said there are several qualified women to consider. She herself was chosen by former President Susilo Bambang Yudhoyono in 2008 after decades of lecturing in law at the University of Indonesia and assisting lawmakers in drafting legislation.

In Indonesia, female law students prefer a career outside the courtroom rather than in it because “women don’t like to be seen as argumentative or to debate,” said Indrati, who plans to return to teaching full time when her term finishes. Quotas aren’t the solution to increasing women’s participation in public life, including on the bench, she said.

‘Be unafraid’
“It is important that women take this role and be unafraid to take this role,” said the judge, who suffered from polio as a child and walks with a limp.

Although when she was young she aspired to be a piano teacher, Indrati listened to the advice of her father, a journalist and former teacher who had wanted to complete his unfinished law degree.

He encouraged his daughter to study to become a law professor instead, according to her official biography.

When the constitutional court in 2015 declined a judicial review to raise the decades-old minimum legal marital age for women from currently 16 years old to 18, Indrati was the only justice with a dissenting opinion.

Raising the marriage age to 18 would allow girls more of a chance to secure their futures, Indrati said. The challenge was brought by a group promoting women’s health. Activists are again appealing, seeking to have the case heard again.

Last week, Indrati cast a decisive vote in the court’s decision rejecting by 5-4 a petition by conservative academics seeking to deem extramarital and gay sex as crimes punishable by prison terms.

She has also ruled in favour of other gender and minority-related cases such as pornography and blasphemy.

More difficulties
“It’s not always the case where the existence of a female justice means the law will take the side of women,” said Indri Suparno, a commissioner at the National Commission on Violence Against Women. “But the absence will give more difficulties to women to become more progressive.”

Southeast Asia’s biggest economy is considered a model of moderate Islam.

The president, known as Jokowi, has put more women into senior roles compared with other Muslim-majority countries — a record nine of 34 cabinet ministers, the most among the world’s most populous countries.

High profile officials include Finance Minister Sri Mulyani Indrawati, Foreign Minister Retno Marsudi — a first in the country’s history — and Maritime and Fisheries Minister Susi Pudjiastuti. Rosmaya Hadi became Bank Indonesia’s only female deputy governor this year.

The country also imposes gender quotas for political party candidates put forward for public office.

In 2016, Jokowi launched the first nationwide survey on violence against women and children. However, he’s been silent on calls from human rights groups to end virginity tests for women applying to the military and the police.

Polygamy app
Worries over women’s rights have increased as attempts to hamper equality have been made more openly. A Tinder-like app, AyoPoligami, or Let’s Do Polygamy, and a seminar called “The Quickest Way of Getting Four Wives” have sparked controversy.

Indonesia allows Muslim men to take up to four wives if granted by a court and approved by the first wife.

Some 26 out of 153 countries have women as chief justices, or 17 percent, according to a World Bank report in 2016 called “Women, Business and The Law.”

Outside court
It’s possible that the challenge to the law legalising the age of marriage at 16 may be heard again while Indrati is still on the bench.

Campaigners for women’s rights say that women who marry young will miss out on what’s being called a demographic bonus by 2030 — when the numbers of working-age people are greater than the numbers of elderly — by not being able to further their educations and embark on careers.

The government wants to improve its professional workforce, but allowing women to marry at 16 means they likely will have to stay home and raise families instead of being able to participate, said Zumrotin Susilo, chairwoman of the Women’s Health Foundation, who was involved in the first appeal of the marriage law.

A Central Statistics Agency census in 2010 found 6.7 million out of 78 million women age 15 to 64 hold a bachelor’s degree, or 8.5 percent. About 500,000 women have postgraduate degrees.

“Women have to fight for the presence of female justices and build strong communications and perspective at the constitutional court,” said Suparno of the women commission.

The Jakarta Post

Article by AsiaPacificReport.nz