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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY
AC 16 of 2023
[CV 14/2023]
BETWEEN
1: SPEAKER OF THE LEGISLATIVE ASSEMBLY OF TONGA
2: LEGISLATIVE ASSEMBLY OF TONGA
- Appellants
AND
MATENI TAPUELUELU
- Respondent
___________________________________________________________________________
JUDGMENT OF THE COURT
___________________________________________________________________________
Court: Randerson J
Harrison J
de Jersey J
Counsel: Mr D Laurenson KC and Mrs D Stephenson KC for Appellants
Mrs F Fa’anunu and Ms F Afu for Respondent
Hearing: 20 May 2024
Judgment: 28 May 2024
Judgment
[1] The respondent is a Member of Parliament who has been granted leave[1] to bring judicial review proceedings in the Supreme Court challenging the validity of two resolutions of the Legislative Assembly. The resolutions were passed in 2018 and a decision to implement them was made on 14 June 2022. The resolutions had the effect of granting Members and staff of the Legislative Assembly a pay rise of 14%, backdated to 2018. As a consequence of the resolutions and the later decision, the 2022/2023 Appropriation Act (the Act) included an additional TOP$6.7 million for the Assembly’s pay rises and for a cost of living adjustment for civil servants. We were told that the great bulk of the total sum was for the cost of living adjustment and that the total sum has been paid. The respondent has declined to accept the pay rise at issue.
[2] In essence, the respondent contends that the 2018 resolutions of the Assembly were passed by way of circulars in breach of the Rules of Procedure (Rules) of the Assembly and clause 62 of the Constitution of the Kingdom of Tonga. It is argued that there is no provision in the Rules for the use of circulars and the resolutions should have been put formally before the Assembly by way of a motion by a Member that could be debated. In consequence, the respondent contends that the resolutions were unlawful and of no legal effect. He does not seek to impugn the validity of the Act.
[3] Clause 62 of the Constitution 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.
[4] Without taking any other step in the proceeding, the appellants applied for a declaration that the Supreme Court had no jurisdiction in respect of the respondent’s claim. They contended that the Court had no jurisdiction to inquire into the internal proceedings of the Assembly and that, to do so, would breach common law privileges of the Assembly. It was further said that clause 90 of the Constitution permitted the Court to inquire into the internal proceedings of the Legislative Assembly only where the Constitution had been breached. In this case, the appellants say there was no breach of clause 62 of the Constitution.
[5] By a comprehensive ruling delivered on 24 August 2023, the former Lord Chief Justice Whitten KC refused the appellants’ challenge to jurisdiction; granted the respondent leave to proceed; and required the appellants to file a Statement of Defence by 22 September 2023.[2]
[6] The appellants have filed an appeal against this ruling and sought a stay of execution of the proceedings in the Supreme Court pending the final determination of their appeal. A stay was granted by Randerson J.[3]
Preliminary question – is this appeal moot given the passage of the Act?
[7] A preliminary issue arises as to whether this appeal is moot given the passage of the Act which authorises the appropriation.
[8] We have given this issue close attention given that the respondent does not seek to impugn the validity of the Act and the Court has no authority to set aside an Act of Parliament except in very limited circumstances that have no application here. Moreover, the Court does not offer advisory opinions on issues that have no practical consequence. As well, the Supreme Court, sitting in its judicial review capacity has a discretion to refuse relief in such circumstances. However, both parties seek a ruling and we are satisfied that it is appropriate in this case to determine the issues raised by the appeal given the constitutional importance in the Kingdom of Tonga in determining the validity of the practice of the use of circulars in the Assembly.
The facts in more detail
[9] The following summary of the factual background is drawn from the statement of claim and the ruling of the former Lord Chief Justice Whitten KC granting leave to the respondent to apply for judicial review. The essential facts are not materially disputed by the appellants.
16 March 2018: The resolutions stemmed from a report from the Privileges Committee No. 1/2018.
[10] This resolution was distributed to Members of the Assembly by way of a circular to secure the votes of Members on it. The letter “A” is a category of resolution approved through the use of a circular rather than a motion put by Members to be debated and voted upon. The resolution was not based on a motion prior to its circulation for Members to approve. Rather, voting to approve the resolution was by placing a tick next to the name of the Member and by adding the Member’s signature. The respondent says he signed this on the understanding that it related only to benefits and not pay rises.
[11] The resolution had four main recommendations:
(i) To approve and pay as soon as possible in the current financial year the benefits of Members of the Assembly at the current rate for annual constituency payments, annual housing payments and constituency visits.
(ii) To approve the Ministry of Finance and National Planning to finance the additional funds needed for budgetary votes of the Assembly in the current financial year to include the financing of benefits in (i) above.
(iii) To task the relevant Standing Committee of the Assembly and the Legislative Office to review in general the various benefits and assistance needed for Members of the Assembly.
(iv) To approve Report No. 01/2018 of the Privileges Committee.
[12] The resolution did not contain any reference to salary increases for Members or staff of the Assembly.
Reports 0/2018 21 May 2018
[13] Two reports each numbered 0/2018 dated 21 May 2018 were produced by the Standing Committee on Privileges and the Standing Committee on Finance. These were separate but similar reports. Each recorded that it pertained to resolution 58A/2018 of 22 March 2018. A consultant, Dr ‘Aisake Eke, was engaged to assist both Committees. He provided independent reports to both.
[14] The report by Dr Eke for the Privileges Committee contained:
(v) A summary of the then current support services, benefits and salaries of the Members of Parliament;
(vi) Recommendations to approve his report in respect of Members’ benefits to take effect from 1 July 2018;
(vii) A recommendation to refer the matter to the Standing Committee on Finance;
(viii) A recommendation to employ himself to work with the Office of the Legislative Assembly to develop policies/guidelines for the implementation of the recommendations that had been approved to take effect from 1 July 2018.
[15] The corresponding report by the Standing Committee for Finance contained four main recommendations:
(ix) To approve the earlier Report No. 2/2018 of the Privileges Committee;
(x) To approve the recommendations in Dr Eke’s report for an overall increase to finance the recommendations for the next full financial year in stated amounts totalling in excess of TOP$7million;
(xi) To refer the matter to the Minister for Finance and the Government to finance the approved recommendations to take effect from 1 July 2018.
Between 22 and 30 May 2018: Resolution 60A/2018 dated 30 May 2018
[16] This resolution was also distributed by circular to Members for their vote. It proposed:
(xii) To approve the 21 May 2018 reports by the two Standing Committees;
(xiii) To employ Dr Eke and any other consultant required to work with the Office of the Legislative Assembly to create policies or desired Bills for implementing the report proposals, to co-operate with other relevant authorities if needed and to be effective from 1 July 2018;
(xiv) To employ an independent consultant to review the salaries and benefits of all staff of the Assembly according to policies set out by the Speaker and to review the recommendations and reports of the Remuneration Authority and to report to the Speaker; and
(xv) To permit the Speaker to make decisions arising from the two reports concerning the staff of the Legislative Assembly.
[17] None of the reports from the Standing Committees or Dr Eke were referred back to Parliament for debate and vote. Resolution 60A/2018 was approved or adopted by circular on 30 May 2018. The respondent did not receive this or sign it. A majority of Cabinet members (including the respondent) wrote to the Speaker on 5 June 2018 in respect of the second resolution seeking that work on salary rises for Members be dealt with at a later time and withdrawing their support for the proposal. There is no evidence before us about what happened as a result of this letter but it is clear that it did not seek a debate in the Assembly. We are satisfied that at least by the date of this letter the respondent was aware there was a proposal to increase the salaries of Members as well as their benefits. It is not in dispute that even without the Members who signed this letter, there remained a majority who had signed the relevant circulars supporting the resolutions at issue.
[18] During a sitting of the Assembly, the Ministers presented their respective budgets for the 2022/23 financial year. In his presentation, the Minister of Finance at the time referred to a provision of TOP$6.7 million partly for salary increases for Members of the Legislative Assembly and staff. During lengthy proceedings that day, the respondent says there was no clear discussion recorded about any decision to pay out the proposed salary increases or to backdate them to 1 July 2018.
30 June 2022: The Appropriation Act
[19] The Appropriation Act 2022/23 was assented to. A note at the foot of one page of the budget referred to a sum of TOP$6.7 million without any explanation or detail.
1 July 2022: Further resolution to implement
[20] The Assembly resolved to implement the salary increases and backdate the payments to commence from 1 July 2018. This decision was not the subject of any motion presented to, or debate within, the Assembly. There is no record of any proper resolution to that effect.[4]
Parliamentary privilege
[21] In England, it is well established that the validity of an Act of Parliament is not open to challenge on the ground that its passage through the House was attended by any irregularity. This has been the case since at least the promulgation of Article 9 of the Bill of Rights 1689 which provides:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
[22] The principle that the courts do not intervene or adjudicate upon the internal proceedings of a Parliament is based on the supremacy of Parliament and considerations of comity between the legislature and the courts.[5] Each is ordinarily expected to operate within their respective spheres.
[23] However, the Tongan Privy Council has determined that the same principle is not true in Tonga where there is a written constitution. In the leading case Fotofili & Ors v Siale,[6] the Court held:[7]
If, on a true construction of the Constitution some event or circumstance is made a condition of the authentic expression of the will of the Legislature, or otherwise of the validity of a supposed law, it follows that the question whether the event or circumstance has been met is examinable in the Court notwithstanding the question may involve internal proceedings of the Assembly. ...
The position is then that the Assembly of Tonga, and indeed any Parliamentary body based on the written Constitution, does not have the privilege of supremacy over the courts enjoyed in the United Kingdom.
[24] Addressing specifically the scope of Parliamentary privileges, the Privy Council confirmed[8] that one of the most important privileges available to Parliament in the United Kingdom is the exclusive right to determine the regularity of its own proceedings.[9]
[25] The Privy Council noted that the Constitution in Tonga is silent on the role the courts might play in inquiring into proceedings in the Assembly, providing simply in Article 62 that the Assembly shall make its own rules of procedure for conduct of its meetings. However, the Civil Law Act (Cap. 14) requires the application of the common law of England in the absence of any relevant provision under any Act or Ordinance of the Kingdom. The Privy Council concluded:[10]
It follows that in determining its jurisdiction to inquire into internal proceedings of the Assembly it must apply the English common law regarding the privilege of Parliament to determine the regularity of its own proceedings, provided of course the Assembly has not acted contrary to the provisions of the Constitution in the course of those proceedings, for in such a case, the Court is given jurisdiction by Article 90 of the Constitution, which reads, so far as is relevant:
‘The Supreme Court shall have jurisdiction in all cases in law and equity arising under the Constitution and the laws of the Kingdom of Tonga.’
We conclude then that there is no jurisdiction in the Court to inquire into the validity of the Assembly’s internal proceedings where there has been no breach of the Constitution.
[26] The Privy Council noted the need for a “clear mandate” before the court would intervene.[11]
[27] In Fotofili the respondent’s claim related to the performance of payments made by way of Parliamentary allowances for their services as Members of the Assembly. There being no breach of the Constitution, the Privy Council struck out the substantive proceedings.
[28] The principles established by the Privy Council have been applied in Tonga on several occasions since[12] and are accepted by the respondent. It is not in dispute that this proceeding entails an inquiry into the internal proceedings of the Assembly. The parties agree that the question is whether the practice of using circulars to obtain the votes of Members constitutes a breach of the Constitution and, in particular, a breach of clause 62. An important second question is the extent and nature of any constraints on the circumstances in which the Courts may or should intervene in the internal workings of the Assembly.
The rules of procedure
[29] The Rules are made by the Assembly in exercise of the power conferred for the conduct of its meetings by clause 62. There are several relevant interpretation provisions in clause 2:
“Meetings” includes a Standing Committee
“Motion” means a written or verbal proposal made by a Member to the Legislative Assembly to act or express an opinion on a particular matter.
“Resolution” means any motion passed by the Legislative Assembly.
[30] The Speaker has extensive powers set out in Rule 1(2) :
The Speaker is responsible for ruling whenever any question arises as to the interpretation and application of these Rules and deciding cases not provided for. In all cases he shall be guided by previous rulings and established practices of the Legislative Assembly and his decision shall be final.
[31] Rules 79 and 80 make provision for motions. Rule 79(1) specifies that a Member giving notice of a motion must ensure, amongst other things, that it is clearly written, signed, states the issue to be debated and is delivered to the Clerk of the Assembly. Rule 80, consistently with the definition of a motion, provides that a Member may make a motion without the submission of any previous written notice subject to a proviso about when the Member may rise to speak.
The competing arguments
[32] The respondent alleges that the practice of using circulars to secure Members’ votes on a resolution breached the Rules and clause 62(2) of the Constitution because the resolutions authorised by the circulars did not arise from a motion passed by the Assembly. It followed the respondent says that the resolutions were in breach of s 62(2) because they were not based on motions dealt with in accordance with the Rules relating to motions. Even if the circulars were not motions as defined, they were treated as such and a debate should have followed in the Assembly. By using this process it was submitted the respondent had been deprived of a right to a debate as the Constitution required.
[33] The respondent also relied upon an alleged breach of clause 83 of the Constitution which prescribes the oath of office required by Members but we not intend to address this contention further. We are not persuaded that any relevant obligation arises in this case from that provision and certainly not one warranting any inquiry by the Court.
[34] The argument relied upon by the appellants in support of its contention that the Supreme Court had no jurisdiction in respect of the respondent’s claim was made on the basis that:
(b) Although accepting that the Court would have jurisdiction to inquire into the internal proceedings of the Assembly if there were a breach of the Constitution, there was no breach in this case.
(c) Clause 62(2) of the Constitution has no application because it can only apply in respect of motions if a motion is proposed by a Member and this did not occur, nor was it alleged.
(d) Rather, the allegation is that the practice of using circulars for resolutions breached the Rules which require motions for resolutions.
(e) It followed, the appellants contend, that, the Court is precluded from inquiring into the internal proceedings of the Assembly given the absence of any breach of the Constitution.
(f) There was no clear mandate for the Court to intervene in accordance with the principles in Fotofili.
The findings in the Court below
[35] The former Lord Chief Justice Michael Whitten KC proceeded on the basis that the issue was whether the circulars in question constituted a breach of clause 62 of the Constitution. He found this should be established at the level of an arguable case given that the affidavit material before the Court in support of the leave application was considered by his Lordship to be minimal and had not been tested. His Lordship considered that, on a plain meaning, the text of s 62(2) was clear and unambiguous. Bills, motions and petitions must be proposed and dealt with by the Assembly in accordance with the Rules required by s 62(1).
[36] Noting that s 62(2) had been added in 2010 in the context of political and other constitutional reforms, he considered that the intent and purpose of the requirement for compliance with the rules was to provide a safeguard to the integrity of the political process on the basis that the Assembly not only makes rules for the conduct of its meeting and empowers Members to introduce bills, motions or petitions, but also that the Assembly must abide by its rules in dealing with any such matters. Authorities relied upon by the appellants for the proposition that compliance with the rules is not a condition of the validity of a supposed law were distinguishable by reason of the language of clause 62(2) and, in any event, were, His Lordship considered, of limited application in the present case since the respondent did not seek to impugn the validity of the Act.[13]
[37] His Lordship rejected an argument advanced by the appellants that arguments advanced by the respondent would render the work of the Assembly unworkable and untenable if it were required to defend itself every time a breach of a procedural rule, however minor or technical, was alleged with the result that the privilege relied upon would be circumvented altogether.
[38] The key reasoning and conclusions reached in the Court below are set out in full:
61.1 The subject resolutions, prior to being approved, were in truth motions;
61.2 As such, they should have been dealt with as motions;
61.3 They were neither proposed nor dealt with in accordance with the Rules applicable to motions; and
61.4 Such non-compliance can constitute a breach of clause 62(2) of the Constitution.
Consideration
[39] Although we recognise the clear risk of being drawn into matters that are ordinarily the province of the Assembly, we consider this appeal is capable of final determination by interpretation of the Constitution and the Rules on the basis of the largely undisputed affidavit material before the Court. We agree with the Court below that clause 62 is clear in its terms but we disagree with the conclusion reached.
[40] Clause 62(1) is a mandatory requirement that the Assembly must make its own rules of procedure for the conduct of its meetings. The Rules of Procedure have been made in exercise of that requirement. In contrast, clause 62(2) is permissive at least in part. It empowers a Member of the Assembly to introduce a Bill, propose a motion for debate in the Assembly or present a petition. If any of these things occurs, then it must be dealt with in accordance with the Rules. However this means all the Rules including, for example, the dispensing power enjoyed by the Assembly under rule 3 and the wide powers conferred on the Speaker as we discuss below.
[41] In this case, no motion as defined in the rules was proposed in the Assembly whether in writing or orally. Indeed, the Statement of Claim does not allege the circulars constituted a motion. The circulars did not propose any matter for debate in the Assembly and were not prepared by a Member. Rather, they were provided to Members by the Chief Clerk under the supervision of the Speaker. The first circular was signed by the Speaker and the second by the Acting Speaker, clearly demonstrating their approval of the practice of using circulars in this way.
[42] The Constitution does not provide the Standing Committees and other administrative machinery and procedures necessary to enable the Assembly to undertake its work in an effective manner. Provision for matters such as this is enabled by clause 62(1) so long as any rules are not inconsistent with the Constitution. The Speaker enjoys wide powers under Rule 1(2) to rule on any question arising as to the interpretation or application of the rules including cases not provided for. This rule requires the Speaker to be guided by previous rulings and “established practices” of the Assembly and his decision shall be final.
[43] The Rules themselves do not provide for the passing of resolutions by Members signing circulars without debate and the circulars once signed by a majority of Members could not constitute “resolutions” as defined since they did not result from a “motion” as defined. They may constitute an established practice and may be convenient where Parliament is not sitting or in the case of emergency but the existence and scope of any such practice is clearly within the role of the Speaker to determine.
[44] Separately, Standing Order 4 of the Assembly provides for circulars when the Assembly is not sitting. If “anything” is required in that circumstance, “a circular submission” shall be made and taken to each member present in Tongatapu. If approved by the majority the Speaker shall complete all requirements to effect such matters and the circular submission shall be referred to the next sitting of the Assembly “for information” (but, we note, not for debate). This process was not used in this case but its availability demonstrates the flexibility the Assembly has seen fit to adopt in the exercise of its broad powers to govern its own procedures under clause 62(1) of the Constitution.
Conclusions
[45] In summary, we have concluded for the reasons given that it has not been shown on the interpretation and application of the Rules of Procedure that there has been any breach of clause 62 (2) as alleged. Even if a breach of the Rules had been established, there is no justifiable basis for the intervention of the Court. That is because the Assembly is given wide powers under clause 62(1) to make its own Rules for the conduct of its business and the Speaker has been given the primary role of interpreting and applying the Rules whenever any question arises. His decisions are final and it is not for the Courts to function as a form of review, especially when the Speaker is uniquely well placed with his knowledge of past rulings and practices which all have their part to play in the effective management of the work of the Assembly.
[46] The Court has jurisdiction to inquire into the inner workings of Parliament but only within narrow limits. We accept the appellants’ submission that the clear mandate referred to in Fotofili only arises where there has been a demonstrated breach of a discrete provision in the Constitution. An example is a breach of the provisions of Clause 56 which prescribes specific processes that must be followed in enacting legislation, or the requirement under clause 62(1) for the Assembly to make its own rules of procedure for the conduct of meetings.
[47] The appellant addressed extensive submissions before us on whether the Supreme Court applied the correct test of an arguable case in granting leave. In its submission the good arguable case test was appropriate, postulating a higher threshold for leave. In our view neither test is appropriate here. Given the constitutional importance of Parliamentary supremacy and the doctrine of the separation of powers, we are satisfied that leave to bring judicial review proceedings in this context should only be given where a compelling case is established to warrant the grant. To do otherwise would tend to undermine the wide powers for the Assembly to govern its own procedures under the supervision of the Speaker as well as the rationale for Parliamentary privilege.
[48] We understand the concerns of the respondent that the approval of expenditure at the very substantial levels involved in this case ought to have been debated in the Assembly. However, the opportunity under clause 62(2) to propose a motion for such a debate was available but not pursued. Importantly, clause 19 of the Constitution provides that expenditure of public money must be authorised by the prior vote of the Assembly or by legislation. The latter occurred in this case with the passage of the Appropriation Act.
Result
[49] We are satisfied that clause 62(2) of the Constitution was not breached in this case for the reasons given. It follows that the application to dismiss the respondent’s proceeding on the ground that the Court has no jurisdiction by virtue of Parliamentary privilege must succeed.
[50] We observe however that if the practice of the use of circulars as described is to continue, it is obviously desirable that the Rules of Procedure be amended to authorise them and the circumstances in which they may be invoked.
Disposition
[51] The appeal is allowed.
[52] The appellants are entitled to costs in this Court and in the Court below to be fixed by the Registrar if not agreed.
______________________
Randerson J
______________________
Harrison J
______________________
de Jersey J
[1] Tapueluelu v The Speaker of the Legislative Assembly of Tonga and Anor CV 14 of 2023, 21 April 2023.
[2] Tapueluelu v The Speaker of the Legislative Assembly of Tonga and Anor CV 14 of 2023, 24 August 2023.
[3] The Speaker of the Legislative Assembly of Tonga and Anor v Tapueluelu AC 16 of 2023, 19 October 2023.
[4] As required by clause 19 of the Constitution.
[5] British Railways Board and Anor v Pickin [1974] UKHL 1; [1974] 1 All ER 609 per Lord Reid at 614 and most emphatically by Lord Morris at 619
[6] Fotofili & Ors v Siale [1998] LRC (Const) 102; [1996] Tonga LR 227, applied by this Court in Minister of Police v Moala [1997] Tonga LR 210 at 213., see also Namoi Shire Council v Attorney- General [1980] 2 NSWLR 629, upon which Mr Laurenson relied in argument.
[7] At 229.
[8] At 230.
[9] Citing Stockdale v Hansard [1839] EngR 139; (1939) 9 Ad & EL 1; Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 Q.B.D. 271 and British Railways Board and Anor v Pickin (supra) at 619.
[10] At 231.
[11] At 230.
[12] Minister of Police v Moala and Ors [1997] Tonga LR 210, Lasike v Noble Tu’iha’angana [2006] Tonga LR 161 and Sevele v Pohiva [2013] TOSC 49.
[13] His Lordship ( at [48]) was influenced in this view by his understanding that Mr Laurenson conceded that a contravention of what
he described as the second limb of clause 62(2) , the requirement that a motion be proposed and dealt with in accordance with the
rules of procedure, could constitute a breach of that provision , thereby enlivening the Court’s jurisdiction under clause
90 and rendering the breach examinable notwithstanding any necessary requirement to inquire into the Assembly’s proceedings.
That concession appears to be directly antithetical to a central element of the appellant’s argument on appeal, and before
us. Mr Laurenson advised that his Lordship’s recital represented an apparent misunderstanding of what was said in an exchange
in oral argument.
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