Attorney General v Tapueluelu [2015] TOSC 55; CV45.2015 (11 December 2015)

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

CV 45 of 2015

BETWEEN:

ATTORNEY GENERAL
Plaintiff

AND:

MATENI TAPUELUELU
Defendant

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mr. 'A. Kefu SC for the plaintiff
Mr. 'O. Pouono for the defendant

Date of Hearing : 12 November 2015
Date of Ruling : 11 December 2015

RULING

Introduction

[1] At issue in this action is whether the election of Mr. Mateni Tapueluelu as the People's Representative for the Tongatapu 4 Electoral Constituency in the General Elections of 27 November 2014 was unlawful and invalid in breach of clause 65 of the Constitution.

[2] The Attorney General asserts that at the date of his nomination for election (and incidentally when he was registered, elected and took his oath of office) there remained outstanding a judgment of the Magistrate's Court of 27 June 2011 that Mr. Tapueluelu pay Mr. William Clive Edwards Senior $10,000 in damages and $4,500 in costs. The Attorney General is seeking declarations that Mr. Tapueluelu's nomination, registration for election, election, taking of the oath of office and holding of office as a People's Representative for the Tongatapu 4 Electoral Constituency are all unlawful and invalid. The Attorney General had also applied for a declaration that Mr. Tapueluelu return to the Crown all salary and remuneration benefits received as a People's Representative since 27 November 2014, but this is no longer pursued.

The facts

[3] Mr. William Clive Edwards Senior commenced a civil action in the Magistrate's Court against Mr. Tapueluelu, Ms Laucala Pohiva and the Ko e Kele'a newspaper alleging that they had defamed him. On 17 June 2011, Mr. Edwards obtained judgment against Mr. Tapueluelu and his co-defendants for $10,000 in damages and $4,500 in costs.

[4] Mr. Tapueluelu and his co-defendants filed an appeal from the judgment of the Magistrate's Court to the Supreme Court. On 10 February 2012, Mr. Edwards applied to strike out the appeal. On 5 June 2012, Lord Chief Justice Scott did strike out the appeal on the ground that there had been inordinate and inexcusable delay in the prosecution of the appeal.

[5] On 27 June 2012, Mr. Tapueluelu and his co-defendants applied to the Supreme Court for leave to set aside the ruling of the Lord Chief Justice of 5 June 2012 and for a stay of execution of the Magistrate's Court's judgment of 17 June 2011. On 3 August 2012 Lord Chief Justice Scott dismissed those applications.

[6] On 7 August 2012, Mr. Tapueluelu and his co-defendants filed an ex parte application for leave to appeal to the Court of Appeal against the Lord Chief Justice's ruling and a further application for a stay of execution of the judgment of the Magistrate's Court. On 30 August 2012, Lord Chief Justice Scott, sitting as a member of the Court of Appeal, allowed the application to appeal and granted a stay of execution of the judgment of the Magistrate's Court. There the litigation was to rest for some time.

[7] On 30 September 2014, His Majesty the King issued the writs of election to hold elections of the representatives of the nobles and of the people to the Legislative Assembly on 27 November 2014. The Supervisor of Elections published notice that the nominations of candidates would be received on 23 and 24 October 2014.

[8] On 23 October 2014, Mr. Tapueluelu submitted his nomination as a candidate for election as a People's Representative for the Tongatapu 4 Electoral Constituency and he was registered as a candidate that same day. In support of his nomination Mr. Tapueluelu submitted letters of clearance from the Supreme Court and Magistrate's Court, dated 29 September 2014 and 1 October 2014 respectively, as required by section 9(4) of the Electoral Act.

[9] As will be apparent from the preceding paragraphs, on the day that Mr. Tapueluelu was nominated and registered as a candidate for election he did have a judgment of the Magistrate's Court entered against him. The judgment was unpaid but subject to a stay of execution ordered by the Lord Chief Justice on 30 August 2012.

[10] On 27 November 2014, Mr. Tapueluelu was elected as the People's Representative for the Tongatapu 4 Electoral Constituency. He took his oath before the Legislative Assembly on 19 January 2015 and he has served as the People's Representative for that constituency to the present time.

[11] In late March 2015, the Court of Appeal heard Mr. Tapueluelu's appeal. On 31 March 2015 the Court of Appeal ruled that the appeal from the Magistrate's Court's judgment was, subject to conditions, remitted back to the Supreme Court to be heard on its merits. The conditions included that Mr. Tapueluelu and his co-appellants pay Mr. Edwards the amount of the judgment, costs and interest upon Mr Edward's written undertaking to repay the money (with interest) if the appeal was successful. The conditions imposed by the Court of Appeal were not satisfied and as a result on 24 June 2015 the Court of Appeal ordered that the appeal was dismissed with costs to Mr. Edwards.

Mr. Tapueluelu's affidavit

[12] Mr. Tapueluelu has filed an affidavit. He does not deny the facts as I have set them out above.

[13] Mr. Tapueluelu says that as far as he was concerned the stay of execution of the Magistrate's Court's judgment had the effect that his candidacy and election did not contravene clause 65 of the Constitution. He says that the clearances obtained from the Supreme Court and the Magistrate's Court were consistent with his belief and reliance on the stay of execution of the judgment as sufficient to address any issues raised in relation to clause 65.

[14] In relation to the conditions imposed by the Court of Appeal, Mr. Tapueluelu says that his wife's mother required hospitalization and major medical treatment in Auckland and that he was not in a position to both fund her medical treatment and to make payment as ordered by the Court of Appeal in the time available.

[15] Mr. Tapueluelu notes that the Magistrate's Court's judgment was public knowledge and that no one filed an election petition seeking to challenge his election. Although Mr. Tapueluelu alleged that the judgment was "certainly known to the Attorney General" his Counsel, Mr. Pouono, accepted for the purposes of this proceeding that this was not the case.

The issues

[16] I have received helpful written submissions for both parties. From those submissions it is evident that the issues that arise are the following:

[16.1] Whether, a Court judgment (or order) for the payment of a specific sum of money, the operation of which is stayed, imposes a payment obligation which remains 'outstanding' within the meaning of clause 65 of the Constitution.

[16.2] Whether sections 25-27 of the Electoral Act provide an exclusive means of challenging an election outcome, including any challenge based on a lack of constitutional qualifications of an elected candidate.

[16.3] Whether the Attorney General has standing to bring this proceeding.

[16.4] Whether the Court should decline to grant the declaratory relief that is sought in the exercise of its discretion.

Breach of clause 65 of the constitution

[17] Clause 65 was re-enacted in its present form by the Act of Constitution of Tonga (Amendment) Act 2010. The words in issue in this proceeding were not changed at the time. Clause 65 of the Constitution relevantly provides as follows:

Representatives of the people shall be chosen by ballot and any person who is qualified to be an elector may nominate as a candidate and be chosen as a representative for the electoral constituency in which he is registered, save that no person may be chosen against whom an order has been made in any Court in the Kingdom for the payment of a specific sum of money the whole or any part of which remains outstanding ....on the day on which such person submits his nomination paper to the Returning Officer.....

[18] Mr. Tapueluelu argues that an order of the Court for the payment of money which is subject to a stay of execution does not impose a payment obligation which remains outstanding because the judgment creditor cannot take steps to enforce it. He also argues that consistent with the purpose of the proviso to clause 65, the words 'remains outstanding' can and should be interpreted as applying only to a Court order which continues in full force and effect at the material time.

[19] The parties submitted to me that no decided case on clause 65 has been concerned with the precise issue which arises in this case. I now turn to consider the most directly relevant decided cases which guide my consideration of the issues between these parties.

[20] In Vaikona v Fuko (No.2),[1] Webster J. considered the meaning of the words 'remains outstanding' in clause 65 and said at page 73:

As already stated, the words of clause 65 are clear and precise: "remains outstanding" means in the dictionary "remains unsettled, unpaid, unresolved or owing, payable." It would be almost impossible for the Court to give a wider meaning to the words, even if other factors pointed that way. The words "the whole or any part of which" shows that the provision was meant to apply strictly, leaving no scope for a candidate qualifying if he had paid most but not all of the sum due; even if $10 remained unpaid he would still be disqualified.

[21] And at pages 76-77 Webster J. said:

If it is said that this is a harsh result for what the Respondent says is merely an oversight rather than inability to pay, the Court must make it clear that its task is to interpret the law; it is the Legislative Assembly which makes the laws. ....

Where the meaning of words is plain and unambiguous it is not for the Court to invent fancied ambiguities as an excuse for failing to give effect to the plain meaning of the words because the judge may consider that the result would be harsh or unjust or unsuitable.

[22] The decision of Webster J. was appealed. The Court of Appeal upheld his ruling in Fuko v Vaikona.[2] The Court of Appeal's decision is notable for its rejection of the argument that it should not adopt a literal interpretation of clause 65 because it could result in injustice, and for the Court's conclusion that it is the fact of simple indebtedness rather than insolvency which is the bar to nomination under clause 65. At pages 149-150 the Court said:

It follows that the bar to nomination for election was, until the present clause 65, insolvency rather than simple indebtedness.

We see no way in which we can import into clause 65 the notion that the failure to pay a sum of money ordered by the Court, and unpaid, was only a bar to election if the candidate did not have the means to pay. In the present case the Appellant did in fact pay the costs before the election but not before he submitted his nomination paper to the Returning Officer as required by clause 65.

There is no ambiguity in the wording of the clause, no obscurity, and simply no room for holding that the clause does not mean exactly what it says in clear terms. The Appellant fell fairly and squarely within its terms.

[23] In Attorney General v Tupouniua and 'Ilavalu,[3] the respondent argued that a judgment debt was not outstanding as a warrant of distress had been issued and a computer seized which, she contended, had a value greater than the judgment debt. Ward CJ. rejected that argument holding, at page 23, that even where a judgment debtor knows that goods seized pursuant to a warrant of distress will be sold for more than the total debt, he is still indebted to the judgment debtor until the sum has been paid.

[24] Mr. Tapueluelu placed special reliance upon the decision of the Court of Appeal in Attorney-General v Fuko.[4] The facts were that the respondents, who were candidates as People's Representatives, had reached agreement with judgment creditors to pay the judgment debts by instalments. The instalments had been paid up to date when the respondents were nominated for election. The issue in the case was said by the Court to be, at [2]:

...whether the whole or any part of an order for payment of a specific sum of money 'remains outstanding' in a case where an order has been made by a Court for the payment of a sum of money and agreement has been reached for payment of the sum by instalments, all of which that are then due for payment have been made at the nomination day.

[25] The Court of Appeal held, at [9], that the respondent candidates were not in breach of the proviso to clause 65, in that "no part of the sum ordered to be paid was 'outstanding' because, by the agreement [to pay by instalments], no part was payable on the day of nomination". I take no issue with the Court of Appeal's decision and set out below paragraph [7] of the judgment which encapsulates the Court's view:

[7] In our opinion, the context of Clause 65, also requires that it be understood as referring to an order for payment that is "outstanding" in the sense that it stands unpaid, though payable.

[26] Finally, I should mention Pohiva v Mafi and Ors,[5] in which the Supreme Court had to consider the implications of granting a stay of execution of a Court order for the purposes of clause 65. Mr. Pohiva sought a stay of a substantial costs award made against him in the Magistrate's Court on the ground that the costs award would prevent him from nominating as a candidate in the 2014 General Election. Lord Chief Justice Scott refused to grant a stay and was of the view that nothing but satisfaction of the costs order was required before there could be said to be compliance with clause 65. It is useful that I set out his reasons, with which I agree, at paragraphs [16] – [19], as follows:

[16] ...[Clause 65] does not differentiate between orders of the Court which have been appealed but upheld or which have not been appealed on the one hand and orders which are still, or may be still, the subject of appeal or review and which are therefore, at least in theory, still liable to be overruled or modified. The Clause does not differentiate between orders which are highly likely or likely or somewhat likely or not at all likely to be successfully appealed. The merits of the orders which have not been complied with are not, in my opinion, relevant to the operation of the Clause at all.

[17] Secondly the Clause operates as a complete and final bar to a particular nomination. It contains no provision for its suspension pending review by the Court followed by retrospective operation if the review fails. In other words, any candidate who owed money could apply for relief, obtain a stay, nominate, lose his appeal or review without his nomination being at risk of later being declared invalid.

[18] Thirdly, it must be borne in mind that this is a constitutional provision enacted by Parliament of which the Applicant is a prominent member. The Supreme Court should be very careful not to interfere in the processes which Parliament has laid down to govern election to its membership.

[19] In my opinion this application is an attempt to circumvent the effect of clause 65. However fervently the Applicant believes he has been wronged cannot, in my opinion, affect the plain meaning of the Clause. Despite everything that has been urged upon me I find it clear beyond doubt that there is an order of the Court which has not been satisfied and therefore until the order has been complied with, Clause 65 applies.

[27] Much in this case rests upon whether Mr. Tapueluelu is correct that the Magistrate's Court's judgment did not impose a payment obligation which was outstanding because of the stay of execution that had been granted in relation to it. Despite the importance of this issue his submission was unsupported by any authority. It is necessary that I now consider the nature of a stay of execution.

[28] In Clifton Securities Ltd v Huntley and Ors,[6] the lessor plaintiffs obtained judgment for possession of leased premises. Execution of the judgment was stayed pending the hearing of an appeal. In his judgment the Judge said that even if the notice to quit that the plaintiff's had relied upon was invalid the plaintiffs were in a position to give a further notice at any time in order to meet the possibility that that the original notice might be declared invalid on appeal. This the plaintiffs did, and upon the expiry of that notice they cut services to the premises and barricaded the right of way to prevent the defendants having access. The plaintiffs were held to be entitled to take this action notwithstanding the stay. In describing the effect of a stay Lord Denning said:

A stay of execution only prevents the plaintiffs from putting into operation the machinery of law – the legal processes of warrants of execution and so forth – in order to regain possession. It does not take away any other rights which they have. It does not prevent their exercising any right or remedy which they have apart from the process of the Court. In this case, there was no reason why the plaintiffs should not regain possession if they could.

[29] Clifton Securities Ltd has been followed on many occasions.[7] In Pollack v Commissioner of Taxation,[8] it was held by the majority of Pincus and Gummow JJ. (Beaumont J dissenting) that a stay did not, of itself, deprive a judgment debt of its character as an obligation payable immediately. Pincus J. said at page 51:

Counsel for the Commissioner argued that the debt was payable immediately......He said that if there was a stay of enforcement of the judgment, the debt nevertheless remained payable. That appears to me to be correct. I have found no authority in support of the proposition that a stay of enforcement of a judgment produces the result that the debt ceases to be payable; surely the judgment creditor could, despite the stay of enforcement, plead the debt as a common law set-off.

[30] In the same case, Gummow J. at page 56 said:

Enforcement is concerned with the means of compulsion, whether of the debtor or of third parties such as those to whom orders for a garnishee are directed, whereby the creditor receives satisfaction in whole or part of the outstanding obligation represented by the judgment debt. The debt may be payable by the debtor although the means of enforcement are denied to the creditor.

[31] It is therefore not the case, as Mr. Tapueluelu contends, that "...in the event of a stay the judgment creditor (or other beneficiary of a Court order) cannot take steps to enforce it, and the judgment debtor is under no present obligation to pay it." The effect of a stay of execution is to prevent the judgment creditor from compelling payment by use of the processes of the Court, but it does not release the judgment debtor from his present obligation to pay the judgment debt nor does it deprive the judgment creditor of any other rights he may have available to him to obtain payment (such as exercising a right of set off). Applied to this case, the fact that the Magistrate's Court's judgment was subject to a stay of execution did not release Mr. Tapueluelu from the obligation to pay the judgment debt. The judgment debt remained both unpaid and payable on the day Mr. Tapueluelu nominated as a candidate in the General Election.

[32] Mr. Tapueluelu advances the further argument that as a matter of construction the Court should interpret clause 65 as applying only to a Court order which is "in full force and effect" at the material time. He submitted that the purpose of the proviso to clause 65 "must be to ensure that only solvent (and perhaps, fiscally responsible) candidates stand for election". That submission is not correct. As the Court of Appeal made clear in Fuko v Vaikona, it is the simple fact of indebtedness pursuant to a Court order and not insolvency that is the bar to nomination.

[33] It was then submitted for Mr. Tapueluelu that the interpretation of clause 65 must be approached as having occurred against the background of two significant features of the Tonga legal system. The first feature is said to be, the Electoral Act 1989, and in particular Part III of that Act, dealing with elections and nomination of candidates, and Part V dealing with election petitions. It was suggested that the Electoral (Amendment Act) 2010, which introduced the section 9(4) written clearance procedure, was particularly important and that the obvious legislative intent was that clause 65, as re-enacted in 2010, and the existing Electoral Act provisions should 'peacefully co-exist'. That submission was not developed. It was not explained why the interpretation of clause 65 for which the Attorney General contends here does not co-exist peacefully with the Electoral Act provisions and I cannot see anything to suggest that is the case. Although mention was made of section 9(4) I see nothing there that supports Mr. Tapueluelu's submission. As the Court of Appeal said in Supervisor of Elections v Tupouniua,[9] section 9(4) does not seek to replicate the requirements of clause 65 and it is:

..simply an attempt to give practical effect to clause 65 and to minimize the risk of mischief arising from a false or mistaken declaration of compliance.

[34] The second feature was said to be the system of appeals, and discretionary stays of execution pending appeal in place in relation to appeals. The 'absolute' approach of the Attorney General to clause 65 would, it was argued, disapply this entire area of civil law - effectively rendering rights of appeal nugatory for candidates for election and was to be avoided if at all possible. For reasons I have already given, this submission is based on a mistaken view that a stay of execution releases the judgment debtor from the obligation to pay. The approach contended for by the Attorney General does not disapply this area of the civil law but is entirely consistent with it.

[35] A further submission for Mr. Tapueluelu was that the Attorney General's approach to the interpretation of clause 65 was unsatisfactory because it meant, in effect, that the moment a judgment (or any other Court order) for the payment of money was given, no matter how unjustified or substantial the judgment (or order) and even if the judgment or order in question was stayed or ultimately overturned on appeal, the recipient is debarred from standing for election. What that submission overlooks is that the recipient is only debarred from election if the judgment or order remains outstanding. The recipient may pay the judgment or enter into a binding arrangement with the judgment creditor to compromise the debt if he wishes to stand for election. Furthermore, the case law makes clear, clause 65 is not concerned with whether a judgment (or order) is justified or unjustified, whether it is substantial or paltry or whether it has been appealed or is beyond challenge. It does not matter either that it is ultimately successfully appealed or set aside. Pohiva v Mafi at [16].

[36] For the reasons I have given I consider that Mr. Tapueluelu fell within the disqualification imposed by clause 65. At the date of his nomination there was a judgment of the Magistrate's Court against him for the payment of a specific sum of money that remained outstanding. He was, as a consequence, ineligible for election in the 2014 General Elections.

Sections 25-27 of the Electoral Act

[37] Section 25 of the Electoral Act provides that no election shall be questioned except by an election petition "complaining of an unlawful election or unlawful declaration" presented in accordance with Part V of the Electoral Act. Section 26(1) provides that the only persons who may present an election petition are, a person who voted or had the right to vote at the election, a person claiming to have had the right to be elected or returned at the election and a person alleging himself to have been a candidate at the election. Section 27(1) provides that an election petition shall be presented within 28 days after the day on which the result of the poll has been declared.

[38] Mr. Tapueluelu argues that sections 25-27 provide an exclusive means for the challenge of election outcomes in the Kingdom. He submits that the Constitution provides for the franchise and for elections of both Peoples' Representatives and Nobles' Representatives, in only the most general of terms and must contemplate that the detail of how elections are to be conducted and disputes concerning their conduct resolved should be regulated by statute. It was further submitted that sections 25 – 27 of the Electoral Act require that allegations of a lack of qualification of the successful candidate (or electoral misconduct) be brought before the Court promptly and by utilizing the electoral petition process only and that this procedure is not inconsistent with the proviso to clause 65 or its proper ambit and purpose.

[39] I do not accept the submission that sections 25-27 provide an exclusive means for the challenge of election outcomes in the Kingdom. Challenges to an election result may be made other than by electoral petition. Clause 66 of the Constitution provides that if it is proved to the satisfaction of the Assembly that any person elected as a representative has used threats or offered bribes "for the purpose of persuading any person to vote for him" that person may be unseated by the Assembly. This process is as much a challenge to an election result as the filing of a petition under the Electoral Act. However, my principal objection to Mr. Tapueluelu's submission is at a deeper level and is that sections 25-27 are inconsistent with the Constitution.

[40] The Constitution is the supreme law of Tonga and by clause 82, if any other law is "inconsistent with this Constitution" that other law shall to the extent of the inconsistency be void. In Touliki Trading Anor. v Fakafanua & Kingdom of Tonga (No.2)[10] the Court of Appeal said at page 152:

It is accordingly not in doubt that an Act of the legislature (or an Order in Council) may be declared invalid by the Supreme Court, or by this Court on appeal if it be found to infringe the Constitution: Fuko v Vaikona [1990] Tonga LR 148 at 150-151, citing Minister of Lands v Pangia (Scott J, unreported, 1932); Fotofili v Siale (Privy Council, unreported, 3 August 1987). In the last case the Privy Council stated the law:

It follows that in England 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. The same is not true in Tonga where there is a written Constitution. If, on a true construction of the Constitution some event or circumstance is made a condition of the authentic expression of the will of 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...

[41] As to what is meant by 'inconsistent', in my view, to say an Act of the Legislature is inconsistent with the Constitution means that it interferes with the ambit of the Constitution in some respect that the Constitution did not intend. In Victoria v Commonwealth,[11] Dixon J. said in relation to inconsistency between Commonwealth and State laws in Australia:

When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.

[42] I have to consider whether on a true construction of clause 65 it was intended that it would be subject to regulation at the will of the Legislature. I do not think there was any such intention. Whilst I accept that the Constitution was not intended to be a complete statement of the law governing elections and that a requirement that a challenge to an election result be made in a timely manner is intended to provide a safeguard against political uncertainty and instability, clause 65 is proscriptive and absolute in its terms (Fuko v Vaikona). Where it is applicable, the effect that clause 65 has on the candidacy of a person nominated for election is simply that that person shall not be chosen by ballot to be a People's Representative (Attorney General v Tupouniua at page 25). The disqualification applies without exceptions and regardless of circumstances. There is nothing in clause 65 to suggest that on its true construction its application was to be circumscribed by Act of the Legislature.

[43] If sections 25-27 are regarded as a code and an exclusive means for challenge of election outcomes in the Kingdom that would certainly 'alter, impair and detract' from the operation of clause 65. The right to bring a challenge to a successful candidate's election in reliance upon clause 65 would be limited to those few persons referred to in section 26(1) of the Electoral Act and would exclude, for instance, the possibility of a challenge by the Attorney General. It would also limit the time within which a challenge could be made to an election in reliance on clause 65 to just 28 days after the result of the election was declared, even in circumstances where a successful candidate's disqualification from election was not and could not have been known. There would appear to be no right to obtain an extension of time for filing a petition regardless of circumstances (Supervisor of Elections v Tupouniua).[12]

[44] It would mean also that should no person eligible to file an election petition have the knowledge, means or inclination to do so, then a candidate, if elected in breach of clause 65, would be immune from challenge and could take their place in the Legislative Assembly for the Parliamentary term in disobedience of the Constitution. The facts of this present case provide evidence that such a circumstance can arise. The observance of the Constitution is far too important to be left to chance in this way.

[45] For those reasons I find that sections 25-27 do not provide an exclusive means of challenging an election outcome where such challenge is based on a lack of constitutional qualifications of an elected candidate under clause 65.

Whether the Attorney General has standing to bring this proceeding.

[46] It was argued that nothing in section 31A of the Constitution empowers the Attorney General to take proceedings to enforce the Constitution contrary to a statutory prohibition and scheme such as that set out in the Electoral Act. Related to this, it was also submitted that it is entirely inappropriate for the Attorney-General to indirectly attack statutory provisions enacted by the Government which he serves, in the manner being undertaken in this case. Again no authority was quoted to me.

[47] The roles of the Attorney General include upholding the integrity of the justice system and the Constitution and he is to be heard on important matters before the Courts affecting the public interest. He has complete discretion to exercise his legal powers and his right to do so is free from interference of any nature. The Supreme Court is the guardian of the Constitution and most regularly it is the Attorney General who is its champion. It has been the Attorney General who has for the last 15 years regularly taken proceedings to enforce clause 65. His right to do so has never before been challenged or subject to criticism or adverse comment as far as I am aware. (Attorney General v Tupouniua, Namoa v Attorney General, Attorney General v Fuko and Attorney General v Helu). There is nothing in Mr. Tapueluelu's objection.

Should the Court decline declaratory relief

[48] By clause 103A of the Constitution the remedy for breach of the Constitution is declaratory relief. Mr. Tapueluelu submitted that the Court should refuse to grant any of the relief sought (declaratory or otherwise) on the grounds of delay, and on the further ground that the grant of relief sought would be entirely disproportionate to the Constitutional breach established.

[49] As far as delay is concerned, it was submitted that it has been a year since the registration of the defendant as a candidate (on 23 October 2014) and his election as a People's Representative (on 27 November 2014). I do not see anything in this point. It was conceded that the Attorney General was not aware that Mr. Tapueluelu had an outstanding judgment at the time that he was nominated and once he became aware of that fact these proceedings were pursued immediately and given urgency. There is no suggestion that Mr. Tapueluelu has been prejudiced by such delay as has occurred.

[50] It was further submitted that Mr. Tapueluelu has acted throughout in good faith by applying for and obtaining a stay of execution of the appeal and by complying with the obligation under clause 9(4) of the Electoral Act to submit written clearances at the time he submitted his nomination. In light of these matters it is argued that the Constitutional breach involved can be sufficiently recognised by a bare finding that the proviso to clause 65 was engaged without the need for going further to declare the election of Mr. Tapueluelu as a People's Representative unlawful or invalid.

[51] Whilst I can readily accept that Mr. Tapueluelu believed that the stay dealt with any issues concerning clause 65 and I have sympathy for the position in which he now finds himself, it is plainly not the case that he sought the stay to comply with clause 65 and there is nothing to suggest he made any enquiry to confirm his eligibility for election. Had he done so he may well have become aware of the decision in Pohiva v Mafi which would have put him on notice that the position was not as he thought.

[52] I am not prepared to create an exception to the application of clause 65 based on the existence of good faith. That would be contrary to the spirit of the Constitution, it would introduce uncertainty into the law and encourage non-compliance with the Constitution. It would also be contrary to precedent as the Courts have never refused to enforce clause 65 on this ground even though the bona fides of the candidate or member has been raised (Vaikona v Fuko and Helu v Attorney General).

[53] A further submission advanced for Mr. Tapueluelu was that a declaration of invalidity as to his election would leave his constituency unrepresented in Parliament. This was because, it was said, that there does not appear to be any provision in the Electoral Act (or the Constitution) for the calling of bye-elections in circumstances where a member's election is declared invalid. It was submitted that it was a better course to permit Mr. Tapueluelu to continue as the People's Representative for his constituency. The short answer to this is that any lacuna in the legislation can, and no doubt would, be quickly filled allowing for a bye-election to be called.

[54] For those reasons I see nothing that suggests to me that it would be appropriate in the exercise of my discretion to refuse the Attorney General declaratory relief.

Summary of conclusions

[55] I summarise my findings on the issues that arise in this action as follows:

[55.1] A Court judgment or order for the payment of a specific sum of money, the operation of which is subject to a stay of execution, does impose a payment obligation which remains outstanding within the meaning of clause 65 of the Constitution. On the date that Mr. Tapueluelu was nominated for election in the 2014 General Election the judgment obtained against him by Mr. Edwards in the Magistrate's Court on 27 June 2011 remained outstanding in that it was both payable and unpaid. Mr. Tapueluelu was as a consequence a person who was disqualified by clause 65 of the Constitution from being chosen by ballot as a People's Representative in the 2014 General Election.

[55.2] Sections 25-27 of the Electoral Act do not provide an exclusive means of challenging an election outcome where such challenge is based on a lack of constitutional qualifications of an elected candidate under clause 65 of the Constitution.

[55.3] The Attorney General has standing to bring an action for a declaration that the nomination, registration and election of a People's Representative to the Legislative Assembly was unlawful and invalid due to a lack of constitutional qualification under clause 65 of the Constitution.

[55.4] There are no grounds in this case which would justify the Court exercising a discretion to decline to grant the declaratory relief that is sought by the Attorney General.

The result

[56] I make declarations as sought by the Attorney General in the following terms:

[56.1] A declaration that the nomination of Mr. Mateni Tapueluelu on 23 October 2014 as a candidate for election as a People's Representative of the Tongatapu 4 Electoral Constituency was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[56.2] A declaration that the registration of Mr. Mateni Tapueluelu on 23 October 2014 as a candidate for election as a People's Representative of the Tongatapu 4 Electoral Constituency was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[56.3] A declaration that the election of Mr. Mateni Tapueluelu on 27 November 2014 as the People's Representative of the Tongatapu 4 Electoral Constituency was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[56.4] A declaration that the declaration of Mr. Mateni Tapueluelu on 9 December 2014 in the return of the writ of elections to His Majesty the King as the People's Representative of the Tongatapu 4 Electoral Constituency was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[56.5] A declaration that the taking of the oath by Mr. Mateni Tapueluelu on 19 January 2015 as the People's Representative of the Tongatapu 4 electoral constituency was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[56.6] A declaration that the holding by Mr. Mateni Tapueluelu of the office of the People's Representative of the Tongatapu 4 Electoral Constituency since 27 November 2014 was in breach of clause 65 of the Constitution and it is unlawful and invalid.

[57] In relation to costs, I know of no reason why the Attorney General would not be entitled to costs but if there is any disagreement about that I will receive submissions by memoranda within 28 days.

O.G. Paulsen
LORD CHIEF JUSTICE

NUKU'ALOFA: 11 December 2015.

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^[1] [1990] Tonga LR 68.
^[2] [1990] Tonga LR 148.
^[3] [1999] Tonga LR 21.
^[4] [2002] Tonga LR 184.
^[5] (Unreported, CV 75 of 2014, 17 October 2014, Scott LCJ).
^[6] [1948] 2 K.B.D 283, 284.
^[7] Re Brent Hughes; Ex Parte Westpac Banking Corp [1997] FCA 1324 (28 November 1997), Australian Beverage Distributors Pty Ltd v Tate Premium Wines Pty Ltd [2007] NSWCA 57 (22 March 2007), Scope Data Systems Ltd Pty Ltd v BDO Nelson Parkhill (2003) ALR 56, Alam v Quest Enterprises [2006] NSWSC 752, Darcoum Borough Council v Horne [2000] EWCA Civ 178 (CA) and Parker Flowerbulbs Pty Ltd v Coulter [2004] FCA 1486.
^[8] (1991) 32 FCR 40.
^[9] (Unreported, AC 32 of 2014, Court of Appeal).
^[10] [1996] Tonga LR 145.
^[11] (1937) 58 CLR 618.
^[12] (Unreported AC 32 of 2014, Court of Appeal).