Justice Shepherdson's reasoning rested, as I thought might happen, on where the presentation of o'o is made. Section 97A of the Electoral Act, which sets out the regulations surrounding 'o'o' and 'momoli' speaks of "Constituencies", "Members" (of parliament) and "Candidates for Parliament". As such, Shepherdson has argued that
There remains the vital question which is whether the "o'o" and "momoli", in order to gain exemption from illegality, must be held within the territorial limits for the particular constituency.
In my opinion, s97A should be construed so that a "o'o" and "momoli" referred to in the section is limited to those made within the territorial limits of the constituency of the Member or Candidate for Parliament who makes the particular presentation.
Justice Slicer's reasoning is, I think, more interesting. He reflected on the nature of modern life in Samoa and how custom changes over time. Specifically, he argued that
Culture and traditions adapt to new conditions. If they do not they die or are lost...More people come to work and live in Apia. Their children live and are educated in the city. Apia is a significant provider of facilities and employment. But the electors retain their identity and voting rights through their villages and through those villages their constituency. But there are compelling reasons to conclude that the traditional presentation ought not be adapted to permit the holding of 'o'o' and 'momoli' in Apia. If Apia, why not somewhere else? Should there be one for each constituency and each member or candidate?...Will the extension of custom harm the villages as political units? These are complex and important matters requiring time for consideration. They are matters which ought, at this time, remain the province of the Parliament. I do not conclude that as of November 2005 the traditional presentation, because of change of custom, permitted its making outside of the Constituency. This Court ought not legislate change, but only determine whether change has occured. I am not satisfied that there has been a change of custom.
Despite their different reasoning, both Justices agreed that Mulitalo committed bribery and found him guilty of corrupt practices. The election result for his constituency was declared void and a by-election will have to be held. Mulitalo will be ineligible to run for candidacy. Su'a will be able to run in the by-election, although events since the court ruling may convince him that to do otherwise.
Mere hours after the court ruling was handed down, the maota (headquarters) of the Su'a family in Lano village burnt to the ground. Su'a family members residing in Lano have suggested that the residence appeared to have been doused with fuel before being set alight.
Su'a matai Fa'atoafe Kaisala said that "the persons who burnt down the house were weak of mind because ahead of them was a possible fine of 100 sows and baishment from the village." Not to mention the potential for legal proceedings.
Police are currently investigating the fire and have been questioning many Lano village members. Lano's top ranked orator Malaeulu Lafaele told the Observer that "the matter [of the fire] would be dealt with when their village meets next, perhaps next week."
In spite of the arson attack, Lano village elders are insistent that conflict has not broken out in their village. I'm not so sure. Over the weekend a group of matai publicly supported Su'a even after the pulenu'u of Lano had stated that the ostracism order against Su'a would not be dropped. It would appear that this is no longer just about the tensions between village and legal rule. The tension now seems to exist within the village power structure itself.