PacLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of Tonga
You are here:  PacLII >> Databases >> Court of Appeal of Tonga >> 2024 >> [2024] TOCA 1

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Fasi v Speaker of the Legislative Assembly of Tonga [2024] TOCA 1; AC 1 of 2024 (28 May 2024)

IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY


AC 1 of 2024

[CV 43/2023]


BETWEEN

DR ‘UHILA-MOE-LANGI FASI AND ORS
- Appellants


AND

1. SPEAKER OF THE LEGISLATIVE ASSEMBLY OF TONGA

2. LEGISLATIVE ASSEMBLY OF TONGA

- Respondents


__________________________________________________________________________


JUDGMENT OF THE COURT
___________________________________________________________________________


Court: Randerson J
Harrison J
de Jersey J


Counsel: Mrs F Fa’anunu and Ms F Afu for Appellants
Mrs D Stephenson KC for Respondents

Hearing: 20 May 2024
Judgment: 28 May 2024


[1] This appeal is the second of two challenges heard in this sitting in respect of proceedings in the Legislative Assembly of Tonga. The appeal raises similar issues to those in the first appeal. This Court is issuing a contemporaneous judgment in the first appeal[1] which should be read together with the judgment in this appeal.
[2] The appellants are Members of the Legislative Assembly who sought to challenge the validity of processes in the Assembly relating to a motion for a vote of no confidence (VONC) in the Prime Minister. They now appeal against the judgment of Cooper J who dismissed the appellant’s application for judicial review on 8 January 2024.[2] In that judgment, Cooper J accepted a submission by the respondent that the Court had no jurisdiction to hear the application for judicial review by virtue of the doctrine of Parliamentary privilege.

The brief facts

[3] The Chief Clerk of the assembly gave notice of the motion for a VONC stating that notification of the date when the motion would be tabled would be issued and that it would be “read out and debated before it is put to a vote”. On 5 and 6 September 2023, the motion for the VONC was tabled before the Assembly. Over the course of two days both the motion and the Prime Minister’s written response were read out in full. Both documents were lengthy, running to hundreds of pages. The Prime Minister then moved orally asking the Assembly to forego the requirement to debate the motion for a VONC and to proceed immediately to vote on it. The Prime Minister’s motion was then put to the vote. It was passed by a majority. The substantive motion for the VONC was then voted on and lost without further debate.
[4] The appellants claimed they were deprived of the opportunity to debate the motion for the VONC. They filed an application for leave to bring judicial review proceedings accompanied by an application for an interim injunction to restrain the respondents from convening Parliament pending the judicial review proceedings.
[5] On 9 October 2023, Cooper J granted leave to seek judicial review of the lawfulness of proceeding to the vote on the VONC motion without debate. He refused leave on a further ground alleging that unelected Members had been allowed to vote on the motion.
[6] On 10 November 2023, the respondents filed an application for a declaration that the Court had no jurisdiction in respect of the subject matter of the appellants’ claim on the ground that it required the Court to inquire into the internal proceedings of the Assembly which they asserted the Court had no jurisdiction to do in the absence of a breach of a discrete provision of the Constitution.
[7] The application for an interim injunction was refused on 1 December 2023.

The judgment under appeal

[8] Cooper J recorded the “accepted starting point” that the Court has no power to inquire into the internal proceedings of the Assembly unless there has been a breach of a discrete clause of the Constitution. In reaching the view that the Court had no jurisdiction to hear the application for judicial review he considered the leading authority, the decision of the Tongan Privy Council in Fotofili & Ors v Siale;[3] the Constitution of Tonga (including the key provision relied upon by the appellants namely clause 62; the Bill of Rights Act 1689; the Cabinet Manual:[4] the Latimer House principles; and the obligations of members by virtue of their oath of office. The primary Judge also placed weight on the ability of the Assembly to control its own processes, drawing attention to rule 49 of the Rules of Procedure and clause 70 of the Constitution.
[9] Ultimately, the appellants’ claim that there had been breaches of the Constitution (clauses 62 and 83) was dismissed on the ground that there was no jurisdiction to inquire into the internal processes of the General Assembly. The judgment below did not enter on any discussion of the Rules and their interpretation.

Parliamentary privilege

[10] It is unnecessary for us to repeat the principles applicable in the Kingdom of Tonga relating to Parliamentary privilege and the circumstances in which the Court has the ability to adjudicate upon the internal proceedings of the Assembly. These principles were reviewed and summarised in the companion judgment of this Court.[5] It is not in dispute that there is no jurisdiction for the Court to inquire into the validity of the Assembly’s internal proceeding where there has been no breach of a discrete provision of the Constitution. Given the importance of the principle of the supremacy of Parliament, the court will assume jurisdiction only where a clear mandate is demonstrated. The circumstances in which the Court may intervene are discussed in more detail in the companion judgment. In short, a compelling case must be demonstrated before the Court will be willing to grant leave for judicial review in this context.

The argument on appeal

[11] The appellants rely principally on the ground that in allowing the motion for the VONC without debate on the motion the rules of procedure of the Assembly were not followed and, in consequence, there was a breach of clause 62 of the Constitution which provides:

62 Rules of procedure

(1) The Legislative Assembly shall make its own rules of procedure for the conduct of its meetings.

(2) Any member of the Legislative Assembly may, in accordance with its rules of procedure –

(a) introduce a Bill in the Assembly;

(b) propose a motion for debate in the Assembly;

(c) or present a petition to the Assembly,

and it shall be dealt with in accordance with the Assembly’s Rules of Procedure (the Rules).

[12] The appellants rely in particular on rules relating to a motion for a VONC in Part 5 of the Rules.[6] Rule 84F(1) provides that the Speaker shall table a VONC in the Prime Minister “for debate in the Legislative Assembly”. Rule 84F(2) states that when a motion for a VONC is debated in the Legislative Assembly there shall be no other matter debated until the motion is concluded. Rule 84F(3) provides that the procedure for deliberation on VONC “shall be in accordance with the Rules of Procedure and as set out under Part 4, Division 3 of the Rules”. In that respect, rules 36 to 61 provide an elaborate set of Rules governing debate procedures.
[13] In essence, the appellants submit that, in terms of clause 62(2), Members of the Assembly have exercised their power in accordance with the Rules to propose a motion for debate in the Assembly. Accordingly, it is submitted that motion “shall be dealt with in accordance with the Assembly’s Rules of Procedure”.
[14] Other grounds relied upon by the appellants are:

Consideration

Clause 62 of the Constitution’

[15] We accept that the motion proposing a VONC in respect of the Prime Minister was a motion in terms of clause 62(2)(b) of the Constitution. On that premise, the Constitution requires that the motion must be dealt with in accordance with the Assembly’s Rules. We also accept that rule 84(f) provides that the Speaker shall table a motion seeking a VONC “for debate in the Legislative Assembly”. Further, that in terms of rule 84F(3) the procedure for deliberation on a motion for a VONC shall be in accordance with the Rules including those set out in Part 4 Division 3. As earlier noted, there are detailed rules of debate in that part of the Rules.
[16] On this footing there is a basis to argue that there is a prima facie breach of clause 62(2) since no debate of the substantive motion for a VONC occurred. However, the Rules must be read as a whole. In this respect, there are three matters of significance. First, clause 62(1) of the Constitution empowers the Assembly to make its own rules of procedure as we have observed in the companion appeal. This is a broad power conferred on the Assembly to make such rules as the Members see fit, subject only to any such rules being consistent with the Constitution.
[17] Secondly, under the Rules, broad powers are conferred on the Speaker. Rule1(2), vests authority in the Speaker to make a ruling whenever any question arises as to the interpretation and application of the rules, as well as to decide cases not otherwise expressly provided for in the Rules. In doing so, the Speaker is guided by previous rulings and the established practices of the Assembly. In terms of this rule, the Speaker’s ruling is binding and final.
[18] Thirdly, the Assembly is itself responsible through the authority vested in the Speaker for controlling the performance of its constitutional functions and regulating itself in the observance of its constitutionally mandated rules. As detailed in the Speaker’s affidavit, the motion introduced orally by the Prime Minister was procedural in nature. Rule 81 obliged the Speaker to propose a discussion of it. It was voted upon in the Assembly with the result that it became a resolution of the Assembly to dispense with the requirement for a debate in the Assembly as otherwise required by rules 84F and 84G.
[19] The power to suspend a Rule is contained in Rule 3:

Any of these rules may be suspended in whole or in part by the Legislative Assembly.

[20] Rule 3 is a key provision recognising that the collective membership of the Assembly has the power to decide to suspend the application of any Rule in whole or in part. This Rule may be exercised at any time and is unlimited in scope. The term “suspend” is not limited to postponing the application of a Rule. It includes determining to dispense with the application of a Rule altogether, or in part, in any given situation. This Rule is a powerful recognition that the Constitution and the Rules together enable the Assembly to govern its own processes.
[21] We are satisfied that in accepting the Prime Minister’s motion to proceed to an immediate vote on the substantive motion without the debate ordinarily required, the Assembly was exercising its power of suspension under Rule 3 as it was entitled to do. It might be thought there was considerable justification for this step given two days had already been spent on reading out the extensive material from the substantive motion and the Prime Minister’s response.
[22] We accept the submission made by the respondents that no breach of s 62 of the Constitution has been established. Where a breach of s 62 of the Constitution relies on an alleged breach of the Rules, the Court will not lightly be drawn into a detailed examination of compliance or otherwise with those Rules. To do so, risks blurring the distinct constitutional roles of the Court on the one hand and the Assembly on the other. As the Privy Council has made clear in Fotofili, a clear mandate and breach of a specific requirement of the Constitution must be established. In future cases, the Court will require compelling reasons to delve into matters that are properly the province of the Assembly to determine for itself.

Clause 83 of the Constitution

[23] Members of the House are required to take an oath of office in which they undertake to conform to and keep the Constitution of Tonga and to zealously discharge their duties as Members of the Assembly.
[24] There is nothing to support any failure by Members of the Assembly to fulfil their oath.

Clause 90 of the Constitution

[25] We accept the submission by the respondents that the Privy Council in Fotofili has clearly stated and settled the jurisdiction established by article 90 of the Constitution. Our companion judgment describes and confirms this.[7] In summary, by virtue of the Civil Law Act (CAP. 14) the common law of England is to be applied regarding the Parliamentary privilege to determine the regularity of its own proceeding provided the Assembly does not act contrary to the provisions of the Constitution. If there has been a breach, as the Privy Council has clarified, the Courts of Tonga are given jurisdiction by article 90 of the Constitution which relevantly provides:
  1. The Supreme Court shall have jurisdiction in all cases in law and equity arising under the Constitution and laws of the Kingdom. ...

[26] The Privy Council confirmed there is no jurisdiction for the Court to inquire into the validity of the Assembly’s internal proceedings where there has been no breach of the Constitution.

Conflict of interest by the Prime Minister

[27] It was submitted that the Prime Minister had a conflict of interest in introducing his procedural motion to put the motion for a VONC to the vote without debate. We accept the respondents’ submission that this matter was not raised in the Court below and should properly be disregarded on appeal. We see no merit in the point in any event.

The evidence should be contested in the full hearing

[28] We are satisfied that no purpose would be served by requiring a full hearing with further evidence. As it stands, there was extensive affidavit evidence on both sides in the Court below and there is no material dispute as to the relevant facts as we have outlined.

Conclusions and result

[29] We find that none of the grounds of appeal are established.
[30] The appeal is dismissed.
[31] There is no reason to depart from the usual rule that costs should follow the event. Costs in both this Court and the Court below are to be paid by the remaining appellants to the respondents in an amount to be agreed or, if not agreed, as fixed by the Registrar. We record that the 4th , 5th and 7th respondents have withdrawn as parties to the appeal without objection. They are not responsible for any costs payable to the respondents in this Court but they remain responsible with the remaining appellants in respect of costs payable in the Court below.

________________________
Randerson J


________________________
Harrison J


________________________
de Jersey J

[1] Speaker of the Legislative Assembly of Tonga & Anor v M Tapueluelu AC 16 of 2023.
[2] Fasi & Ors v Speaker of the Legislative Assembly of Tonga & Anor CV 43 of 2023, 8 January 2024.
[3] Fotofili & Ors v Siale [1998] LRC (Const) 102; [1996] Tonga LR 227.
[4] Cabinet Manual of His Majesty’s Cabinet, Revised Edition 2020.
[5] Speaker of the Legislative Assembly of Tonga & Anor v M Tapueluelu AC 16 of 2023 at [21]–[28].
[6] Rules of Procedure 84A–84G.
[7] Speaker of the Legislative Assembly of Tonga & Anor v M Tapueluelu AC 16 of 2023 at [26].

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOCA/2024/1.html