Sanft v Fotofili [1987] TOSC 2; [1987] LRC 247 (9 January 1987)

[1987] LRC (Const) 247

IN THE SUPREME COURT OF TONGA

SANFT AND ANOTHER

v

FOTOFILI AND OTHERS

Supreme Court:
Martin, J.
9th January 1987

Constitutional law - Separation of powers - Jurisdiction - Proceedings of Legislative Assembly - Alleged breaches of procedure - Members denied opportunity to speak on Bill - Journal of Assembly alleged not to be full record - Minister soliciting support for Bill outside Assembly - Whether judicial review available - Whether part of "informal proceedings" of Assembly.

The plaintiffs, two members of the Legislative Assembly of Tonga, sought an order that a Bill to amend the Bank of Tonga Act 1972 had not been validly passed by the Assembly on the ground of several alleged procedural irregularities, viz, (1) they had not been allowed to speak in debates on the Bill; (2) the Journal of the House was not a full record of the debate; (3) the Minister of Finance had solicited support for the bill outside the Assembly. The defendants, the Speaker and other members of the Assembly, applied to have the action struck out for want of jurisdiction in the court.

HELD: Action struck out for want of jurisdiction.

The court had no power to pronounce on the validity of the "internal proceedings" of the Assembly, which included the procedure adopted by it to conduct its business. Bradlaugh v Gossett (1884) 12 QBD 276 and Siale v Fotofili and Others, ante, p.240 applied. Thus, even if the rules of procedure had been breached, this was a matter over which the court had no jurisdiction, nor had it power to direct the Assembly what to include in its Journal. Nor could it declare unlawful the Minister's actions in seeking support outside Parliament for the legislative measure. (See p.249 post.)

Per curiam: It is not the function of the court to become involved in the legislative process. (See ibid.)

Cases referred to in judgment:
Bradlaugh v Gossett (1884) 12 QBD 276
Siale v Fotofili and Others, ante, p.240

Legislation referred to in judgment:
Bank of Tonga Act 1972
Constitution of Tonga, section 72
Rules for Proceedings of the Legislative Assembly, rule 51

Action
The plaintiffs sought an order that a Bill to amend the Bank of Tonga Act 1972 had not been validly passed by the Legislative Assembly because of various alleged irregularities in its proceedings. The defendants, the Speaker and other members of the Assembly, applied to have the action struck out for want of jurisdiction in the court. The facts are set out in the judgment.

9th January 1987

MARTIN, J.:

The plaintiffs are representatives of the people in the Legislative Assembly. They seek an order that a Bill to amend the Bank of Tonga Act 1972 has not been validly passed by the Legislative Assembly to become law.

On 21st November 1986 I directed the trial of a preliminary issue, namely: whether this court has jurisdiction to determine the issues raised in this action. The defendants have applied to strike out the plaintiff's claim on the grounds that this court has no such jurisdiction and that the action is "frivolous, vexatious and an abuse of process," which is a long-winded way of saying "hopeless."

For the purpose of this hearing I must assume that the matters pleaded in the statement of claim are correct. If the plaintiffs prove all they allege, are they entitled to the orders which they seek?

What is alleged, and as I understand it not seriously disputed, is this. On 1st September 1986 the Minister of Finance introduced into the Legislative Assembly "A Bill for an Act to Amend the Bank of Tonga Act." It was given its first reading in the normal way and referred to a Committee for its second reading. The Committee debated the Bill for 2 days. There was opposition to the Bill, including from the plaintiffs. Eventually, without a vote being taken, the Bill was withdrawn.

There followed certain discussions outside the Legislative Assembly, during which certain members were persuaded to withdraw their objections. On 9th September 1986 the Minister of Finance re-introduced the Bill. It was referred again to the Committee, where further debate was not allowed by the Chairman. The first plaintiff, Mr. Sanft, wished to speak. He was not allowed to do so, and he then left the House. The Bill was voted upon and passed by 14 votes to 2. The Committee resolved into the Assembly and the Bill was ordered to be read a third time. The second plaintiff, Mr. Fuko, wished to speak. He was not allowed to do so, and he too left the House. The Bill passed its third reading by 15 votes to 1.

It is alleged that the refusal to allow the plaintiffs to argue their case invalidates the action taken by the Legislative Assembly. Consequently, the plaintiffs say, the Bill has not been properly passed and the Act is, therefore, invalid.

It is also alleged that the journal of the House does not contain a full record of the discussion and I am asked to direct the Legislative Assembly in that respect. I am also asked to declare that the action of the Minister of Finance, in soliciting support for the measure outside the House, is unlawful; and that the actions of the Speaker and the Chairman of Committee in forbidding the plaintiffs to speak were unlawful.

Like the previous action, this claim raises issues which are more important than the proposed amendment to the Bank of Tonga Act, important as that is. The Rules for Proceedings of the Legislative Assembly provide (Rule 51) "A member may speak to any question before the House. . . ." It is fundamental to the democratic process that a member should not be prevented from speaking without good reason. If elected members were refused the right to speak, and if there were no sufficient reason for that, there is cause for grave concern. But that has not yet been investigated. I do not know what happened, and I express no opinion.

As in the previous action, the issue I have to decide is whether this court has any power to adjudicate on those proceedings in the Legislative Assembly.

For the reasons given in my previous judgment, which I will not repeat here, I hold that this court does have the power to decide whether a constitutional or statutory requirement has been observed. If not, any act of the Legislative Assembly in contravention of that condition would be invalid. But this Court has no power to pronounce on the validity of the "internal proceedings" of the House. That, in my view, includes the procedure adopted within the House to conduct its business.

I turn back to the words of Stephen, J., in Bradlaugh v Gossett (1884) 12 QBD 276 at 280:

". . . the House ... has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and ... even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly."

Even if the Rules of Procedure were breached (and I can make no finding whether or not this was so), this is a matter over which this court has no jurisdiction.

Nor has this court the power to direct the House what to include in its journal. Section 72 of the Constitution merely requires a journal to be kept. The form of the journal is not specified. It is for the members to ensure that the record is adequate and correct. It is not subject to the supervision of the court.

Nor can this court declare that the actions of the Minister of Finance were unlawful; and if the power existed, I would unhesitatingly say that there is nothing objectionable in any member seeking support for his cause in discussions with other members outside the House. Such discussions happen all the time.

Accordingly, I hold that this court has no jurisdiction to make any of the orders sought by the plaintiffs. If I were to hold otherwise, any member dissatisfied with a decision of the House could come and ask the court to overturn that decision. It is not the function of this court to become involved in the legislative process.

The claim will be struck out on the grounds that this court has no power to make the orders sought.