Lasike v Noble Tu'iha'angana [2006] TOSC 22; CV 431-2006 (19 June 2006)

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

CV 431/2006

BETWEEN:

1. NOBLE LASIKE
2. SAMUELA ‘A POHIVA
3. ‘ISILELI PULU
4. WILLIAM C EDWARDS
5. ‘ULITI UATA
6. VILI KAUFUSI HELU
7. SUNIA FILI
8. LEPOLO TAUNISILA
Plaintiffs

AND:

1. NOBLE TU’IHA’ANGANA
Speaker of the Legislative Assembly

2. FELETI SEVELE
Prime Minister

3. THE KINGDOM OF TONGA
in respect of the Legislative Assembly and Government of Tonga
Defendants

HEARD AT NUKU’ALOFA ON 17 JUNE 2006

Before Hon Chief Justice Webster

Counsel: Plaintiffs: Mr Edwards (4th Plaintiff)
1st Defendant: Mr Taumoepeau
2nd Defendant: Mr Waalkens QC
3rd Defendant: Acting Solicitor-General (Ms Simiki), Mr Kefu

DECISION GIVEN ON 19 JUNE 2006

Preliminary

This case arises from the purported Opening of the Legislative Assembly on 1 June 2006 by HRH Princess Salote Mafile’o Pilolevu Tuita as Princess Regent, in the absence of His Majesty The King, abroad in Auckland. There was no dispute that that event took place - I myself was an eyewitness - and it has been taken for the purposes of this case that HRH Princess Pilolevu had been duly appointed as Princess Regent.

The legality of that Opening has been challenged by the Plaintiffs on the grounds that section 17 of the Legislative Assembly Act (Cap 4), which provides:

'Opening and closing of the Legislative Assembly.

17. The sessions of the Legislative Assembly shall be opened and closed by the King either in person or by a commission of 3 nobles appointed by him.'

was not complied with. The Plaintiffs seek a declaration that the Session has not been legally opened. If the Opening was not valid, it may cast doubt on the validity of what the Assembly does during the session.

The Defendants disputed that claim, broadly on the basis that regard had to be had to clause 43 of the Constitution, under which the Princess Regent was appointed; that section 17 had to be read with clause 43, and if that could not be done section 17 was ultra vires the Constitution; and that in any event the Opening of the Legislative Assembly was a matter of the internal proceedings of the Assembly and the Court could not inquire into that.

As I have made clear from the outset, this case is a legal case to decide legal issues and I have taken this decision on grounds of law, not for any political reasons. Under the judicial oath prescribed in clause 95 of the Constitution the Judges of the Supreme Court must be impartial, and under clause 82 the Court must uphold the Constitution.

In view of the statements in the media, it is also appropriate to mention that after the Statement of Claim was filed with the Court on 6 June, under normal civil procedure the initiative lay with the parties if they wished to seek an expedited hearing, but no request for that was made by any of the parties. It was only after the Legislative Assembly had been suspended on 12 June to await the Court’s decision that I took the initiative and invited Counsel to Chambers to see whether an early hearing could be arranged in view of what I considered to be the urgency of the matter. I am grateful to all Counsel for cooperating so that the hearing could take place on Saturday 17 June.

Because of that urgency I am making this a brief decision concentrating on the essential factors in this case, but I was grateful to Counsel for the care they had all taken to make detailed submissions on the law at the hearing. I have taken them all into account in reaching this decision and because I may not mention some of them, it simply means that I did not see them as crucial to the essential points in the decision, not that I have neglected them.

Constitution of Tonga

One of the most important duties of the Supreme Court is to uphold the Constitution of Tonga and I believe that the Constitution and in particular clause 43 is at the heart of this case. The Court's decision on all the issues in this case is coloured by the fact that Tonga has a written Constitution, which is the supreme law in terms of clause 82, and that fact affects all the issues in this case, so that what happens in other countries, especially in the United Kingdom which does not have a written Constitution, is not necessarily helpful in coming to a decision here in Tonga.

Clause 43 provides:

'Prince Regent, how appointed

43. Should the King wish to travel abroad it shall be lawful for him to appoint a Prince Regent who shall administer the affairs of the Kingdom during his absence. And if the King should die whilst his heir is not yet arrived at the age of eighteen years and he has not declared in his will his wishes regarding a Prince Regent during his heir's minority the Prime Minister of the Cabinet shall at once convoke the Legislative Assembly and they shall choose by ballot a Prince Regent who shall administer the affairs of the Kingdom in the name of the King until the heir shall have attained his majority (but the representatives of the people shall have no voice in such election).'

the Court also has to look at the clause 38:

'King’s relations with Parliament

38. The King may convoke the Legislative Assembly at any time and may dissolve it at his pleasure and command that new representatives of the nobles and people be elected to enter the Assembly. But it shall not be lawful for the Kingdom to remain without a meeting of the Assembly for a longer period than one year. The Assembly shall always meet at Nuku'alofa and at no other place except in time of war.'

and clause 82:

'82. This Constitution is the supreme law of the Kingdom and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.'

as well as clause 90:

'Jurisdiction of Supreme Court

90. The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the court of appeal in other land matters) and in all matters concerning Treaties with Foreign States and Ministers and Consuls and in all cases affecting Public Ministers and Consuls and all Maritime Cases.'

Internal proceedings of Legislative Assembly

The logical starting place is whether or not the Supreme Court can inquire into the internal proceedings of the Legislative Assembly. In this field there is an authoritative decision of the Tongan Privy Council in 1987 in Fotofili v Siale [1987] TOPC 2; [1988] LRC (Const) 102; [1987] SPLR 339 (PC), which, as well as being binding on this Court as the decision of a superior court, puts the issue in a Tongan context. The relevant passage in that decision is very brief and straightforward:

'... 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.'

The case from Kiribati referred to by Mr Waalkens, while interesting, thus has no binding force on this Court.

I consider that it is very much borderline whether the formal ceremonial Opening of the Legislative Assembly, attended by a great number of guests and following on the exercise of the power to convoke it under clause 38, is actually part of the internal proceedings of the Assembly. However the long title of the Legislative Assembly Act, which the Court can consider when interpreting its provisions, is 'An Act to regulate the [Elections and] Sittings of the Legislative Assembly' and the Opening of the Assembly is referred to in section 17 of the Act and the Assembly's Rules, so that it is certainly possible to argue that the Opening is part of the internal proceedings. But against that there is the constitutional provision in clause 38 for The King to convoke the Assembly, which on the other hand can be argued to take the Opening out of the internal proceedings.

But I do not think that it is crucial in this case whether or not the Opening is part of the internal proceedings, because, even if it is, the issue before the Court is clearly a matter involving the interpretation, and thus a possible breach, of the Constitution and so in terms of clause 82 and the authority of Fotofili v Siale this Court has jurisdiction to inquire into it.

That being the case, although I accept that in terms of the case in the Privy Council in London of Bahamas Methodist Church [2000] UKPC 31 (referred to by the Solicitor-General) I have a discretion as to whether or not I should inquire into issues concerning the Assembly, I do not consider it is appropriate to refrain from hearing what I see as a case necessarily involving interpretation of the Constitution of Tonga.

Interpretation of Constitution

I was surprised that no Counsel specifically raised the issue of the principles to be applied in the interpretation of the Constitution (as distinct from ordinary Acts of Parliament, which I shall mention later). Some of these principles are the same as those applicable to ordinary Acts, but there are important differences, in particular that in the Constitution words are to be given a wide meaning and not interpreted literally or rigidly; restrictions are to be interpreted narrowly; and there must be flexibility for changing circumstances. In recent years there have been a number of cases in Tonga in dealing with this, particularly the recent case of Taione v Kingdom of Tonga [2004] TOSC 48; [2005] 4 LRC 661 and the older case of Tu’itavake v Porter [1989] Tonga LR 14 (both mentioned in submissions by Mr Taumoepeau), where the principles are set out in full.

Where there is inconsistency between the Tongan and English texts of the Constitution the Tongan text must prevail: Vaikona v Fuko (No 2) [1990] Tonga LR 68,76; Fuko v Vaikona [1990] Tonga LR 148,150 (CA).

Clause 43

Many submissions were made during the hearing about the meaning of clause 43 and especially the words 'Prince Regent who shall administer the affairs of the Kingdom during his [The King's] absence'. There is nothing remarkable about the meanings of the words 'administer the affairs' and these are very wide words. I do not consider there is any inconsistency, as submitted by Mr Edwards, with the literal translation of the Tongan version 'carry out Government’s work', which are also very wide words and are the expression in Tongan of the English words. So in my view these words give the Prince or Princess Regent - and no issue was taken throughout this case by any of the parties that references to the masculine include the feminine - very wide powers to do what His Majesty The King would do if he were in Tonga. In the context of the whole Constitution, apart from clauses 42 (which deals with the appointment of a Prince Regent during the majority of the heir) and 43 there is no other mention of the Regent, which indicates clearly that what is said in clause 43 is taken to be sufficient to give the Regent the necessary powers without restriction. Even if there were an implied restriction, that has to be interpreted narrowly in terms of the principles of constitutional interpretation.

The position in the United Kingdom, referred to by Mr Edwards, and the UK Acts of Parliament spelling out the powers of a Regent in the UK, is not comparable because as already mentioned the UK does not have a written supreme Constitution.

Nor do I consider that the additional words in clause 43 in reference to the Regent during minority 'in the name of The King' detract from the wide powers given to the Regent during The King's absence abroad. Nor is the absence of any provision for the Regent to take the oath a significant determinative factor.

So I find that the Tongan words interpreted as 'carry out Government’s work' and the English words 'administer the affairs of the Kingdom' are to be given a wide meaning.

Looking at the nature of the power exercised in convoking and/or opening the Assembly, it is not a one-off power and it is clearly envisaged in other clauses of the Constitution that it will happen from time to time, and at least once every year. There is nothing in the Constitution to indicate that convoking and opening the Assembly is outwith the powers of the Regent. While this may have been the first time that the Assembly has been opened by a Regent (at least in recent years), in practice the Regent has regularly exercised other weighty powers such as assenting to Acts passed by the Assembly.

So I hold that in terms of the Constitution the act of opening the Legislative Assembly is within the powers of the Regent appointed under the first sentence of clause 43.

In passing I mention that even section 17 of the Legislative Assembly Act, though not strictly relevant to the interpretation of the Constitution, except perhaps in its evolving historical context (and the Assembly's much more recent Rules), clearly envisage that the Assembly can be opened by a commission of 3 nobles appointed by His Majesty The King, which does indicates that when The King assented to the Legislative Assembly Act he did not count the opening of the Assembly as a matter of such importance that only the reigning monarch could perform it.

Section 17

Turning to the meaning of section 17 of the Legislative Assembly Act, the real basic principle of the interpretation of statutes or Acts of the Assembly can be summarised as ascertaining the intention of the Assembly through the plain and natural meaning of the words in their context in the statute as a whole: see eg Halsbury’s Laws (4th Ed Reissue) Vol 44(1) Para 1369 onwards. While I was referred to a number of presumptions for interpretation as set out in Halsbury's Laws (4th Ed Reissue) Vol 44(1) para 1474 onwards, these are only presumptions and are not binding on the Court and I believe that they have to be applied with great care.

In the interpretation of a statute made under a written Constitution, some guidance can be obtained from the comparable position in Australia when looking at the compatibility of state legislation with the Commonwealth Constitution. The broad principle is that words in the Act should be so construed that the application of the Act will not infringe the supreme Constitution: D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91 (HC). That position is supported by Para 83 in Joseph's Constitutional Law, to which I was referred.

Therefore although the words 'Prince Regent' are not used in section 17 or the Legislative Assembly Act as a whole, taking into account as part of the context the provisions of clause 43 of the Constitution, the Court must construe the words 'The King in person' as comprehending the Regent in person when there is a Regent administering the affairs of the Kingdom. Thus, even if this is the only reference in the laws of Tonga to The King in person (as submitted by Mr Edwards, though I cannot verify that), it does not affect the construction of section 17.

I believe that position is supported (rather than the reverse) by the definition in section 2(1) of the Interpretation Act of 'His Majesty' or 'The King' as:

'His Majesty,' 'The King' means His Majesty the King of Tonga or the Sovereign reigning for the time being over the Kingdom of Tonga;

It has to be borne in mind that under section 11(2) of the Laws Consolidation Act 1988:

'(2) In the event of any doubt arising with respect to the meaning of any passage in the Revised Edition, or of any difference existing between the English text and the Tongan text of any such passage, the English text shall be held to give the true meaning of such passage.

However an Act such as the Laws Consolidation Act cannot give the English text of the Constitution priority over the Tongan text: see Vaikona v Fuko (No 2) & Fuko v Vaikona.

I thus consider that the use of the words 'the Sovereign reigning for the time being' must be seen as referring to someone other than The King, and I accept that in this context the words mean the person exercising supreme jurisdiction or power and must include the Regent when acting for the time being. The two words 'reigning' and 'Regent' have the same derivation from Latin. So the particular terms of the definition in section 2(1) of the Interpretation Act support the general approach I have taken to interpretation of section 17.

I also accept that it would make no sense to apply a literal interpretation to section 17 to mean that the Regent could appoint 3 nobles as commissioners to open the Assembly but could not do so himself or herself. That interpretation would produce an absurd result and cannot be supported in law, and here I accept that the presumption against absurdity would apply: Halsbury Vol 44(1) para 1477.

If I were wrong in that interpretation of section 17, then I would find the section inconsistent with the provisions of clauses 38 and 43 of the Constitution and so null and void to that extent in terms of clause 82.

I have to add that, even if I had taken a different view on the construction of section 17, I would have accepted that the requirements of section 17 should be construed as directory, as they relate to the formal performance of a public duty. I would have gone on to hold that, even if the action such as the opening of the Assembly had been done in neglect of the requirements in section 17, it should not be held void as that would work serious general inconvenience or injustice to those who had no control over the action: see Halsbury Para 1238.

Conclusion

Therefore for all these reasons I cannot find for the Plaintiffs and I find in favour of the Defendants. I find that the Opening of the Legislative Assembly on 1 June 2006 by HRH Princess Salote Mafile’o Pilolevu Tuita as Princess Regent, during the absence of His Majesty The King abroad, was lawful.

Costs

As I made clear at the hearing, I did not hear submissions on the issue of costs, which is adjourned to a future hearing at which Counsel can make submissions.

19 June 2006

R M Webster
Chief Justice