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Tapueluelu v Speaker of the Legislative Assembly of Tonga [2023] TOSC 43; CV 14 of 2023 (24 August 2023)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU'ALOFA REGISTRY


CV 14 of 2023


BETWEEN:

MATENI TAPUELUELU Plaintiff

-and-
[1] SPEAKER OF THE LEGISLATIVE ASSEMBLY OF TONGA
[2] LEGISLATIVE ASSEMBLY OF TONGA Defendants


Defendants’ challenge to jurisdiction


RULING


BEFORE: LORD CHIEF JUSTICE WHITTEN KC

Appearances: Mrs F. Fa’anunu with Ms F. Afu for the Plaintiff

Mr D. Laurenson KC with Mrs D. Stephenson KC for the Defendants

Hearing: 23 August 2023

Ruling: 24 August 2023


Introduction

  1. In this proceeding, the Plaintiff, who is a Member of Parliament, challenges the validity of two resolutions of the Legislative Assembly[1] passed in 2018 by way of circulars, and a decision on 14 June 2022 to implement those resolutions, which had the effect of granting Members and staff of the Legislative Assembly a 14% pay rise backdated to 2018. As a consequence of the resolutions and decision, the 2022/2023 Appropriation Act (“the Act”) included an additional TOP$6.7 million for the Assembly’s pay rises.
  2. This ruling is concerned with a challenge by the Defendants to the Court’s jurisdiction to entertain the Plaintiff’s claim.

Leave ruling

  1. On 22 March 2023, the Plaintiff sought leave, pursuant to Order 39 of the Supreme Court Rules, to apply for judicial review in respect of the said resolutions and decision.
  2. On 21 April 2023, leave was granted. The leave ruling has since been published as Tapueluelu v Speaker of the Legislative Assembly of Tonga [2023] TOSC 38 and contains a detailed background of the events in question.
  3. In the course of the leave ruling,[2] I had occasion to consider whether the Court had jurisdiction to entertain the Plaintiff’s claims in light of the Privy Council’s decision in Fotofili and Others v Siale [1988] LRC (Const) 102,[3] to effect that “there is no jurisdiction to inquire into the validity of the internal proceedings of the Legislative Assembly where there has been no breach of the Constitution”.
  4. At the time of that decision, and others which followed it, as discussed in the leave ruling,[4] clause 62 of the Constitution, entitled Rules of Procedure, provided solely that “[T]he Legislative Assembly shall make its own rules of procedure for the conduct of its meetings”. In 2010, as part of wide-ranging political reforms, clause 62 was replaced with the following:[5]
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; or
(c) present a petition to the Assembly,
and it shall be dealt with in accordance with the Assembly’s rules of procedure.
  1. After considering that provision and the relevant authorities,[6] I concluded, on a necessarily provisional basis, that:
“[84] One may interpolate therefore that the Applicant is contending, broadly, that not only is the Legislative Assembly required by the Constitution to make its own Rules, it is also required by the Constitution to follow them. The corollary to that, so the Applicant appears to contend, is that if the Legislative Assembly adopts a procedure that is not provided for by its Rules, then it will be in breach of clause 62. For the purposes of this application for leave, I am of the tentative view, that those propositions may be regarded as both unremarkable and uncontentious.
[85] It ought be noted at this juncture that, on its face, clause 62 applies to Rules for the conduct of Legislative Assembly’s meetings and for the procedure by which Bills, motions and petitions are to dealt with. On one view, the alleged procedure here of using circulars for voting on the subject Resolutions may be said to not constitute a meeting and that the proposals in those Resolutions were neither Bills, motions or petitions. However, any such argument itself risks circularity because the Applicant contends that the Rules do not provide for the use of circulars for the type of proposals conveyed by the Resolutions (i.e. not merely administrative issues) and that, in any event, the Rules required the proposals to be dealt with by way of motion.
[86] For those reasons, I am satisfied that even though the Applicant’s claims require the Court to inquire into the internal proceedings of the Legislative Assembly, they also comprise allegations of breaches of the Constitution, and that therefore, they are justiciable before this Court.”

Plaintiff’s pleaded claim

  1. By his Statement of Claim filed on 5 May 2023, the Plaintiff seeks declarations, inter alia, that the use of circulars to secure votes on the resolutions and the 2022 decision approving them were in breach of the Rules of Procedure of the Legislative Assembly of Tonga (“Rules”) and clause 62(2) of the Constitution, and that they are therefore unlawful and of no legal effect. The Plaintiff does not seek to impugn the validity of the Act.
  2. The leave ruling also contains a detailed outline of the Plaintiff’s complaints. For present purposes, it suffices to summarise his pleaded contentions as follows:

Defendants’ challenge

  1. Order 7 rule 2 of the Supreme Court Rules provides, relevantly, that a defendant who wishes to dispute the jurisdiction of the Court in an action may, within the time limited for service of a defence,[7] and before taking any other step in the action, apply to the Court for ... (f) a declaration that the Court has no jurisdiction in respect of the subject matter of the claim or the relief sought in the action.
  2. On 19 June 2023, the Defendants filed an application for a declaration that the Court has no jurisdiction in respect of the Plaintiff’s claim.
  3. The grounds for the application are stated as:
A. The case requires the court to inquire into the internal proceedings of the Legislative Assembly;
B. One of the common-law privileges of the Assembly is the exclusive right to determine the regularity of its own proceedings, a fundamental constitutional principle that:
(i) reflects the Latimer House Principal separation of powers and the principle of comity;
(ii) enables the Assembly to discharge its functions effectively;
C. The Assembly’s privileges may be abrogated, but only if there is a "clear mandate" or "clear, unambiguous" language to that effect;
D. Under clause 90 of the Constitution the Court has jurisdiction to inquire into the internal proceedings of the Assembly, but only if the Constitution has been breached;
E. The Plaintiff’s allegation of a breach of clause 56 is based on a misinterpretation of the clause (which only relates to Bills);
F. The Plaintiff’s allegation of a breach of clause 62 is based on a misinterpretation of the clause:
(i) clause 62(1) empowers the Assembly to make its own rules of procedure but does not provide - either expressly or by implication - that a breach of those rules comprises a breach of the Constitution;
(ii) clause 62(2) confirms the right of individual members of the Assembly to introduce a Bill, propose a motion or present a petition; and
(iii) the Plaintiff does not allege that he attempted to introduce a Bill, propose a motion or present a petition.
G. The Plaintiff does not otherwise allege a breach by the first and second defendants of a discrete clause of the Constitution.
  1. The application is supported by an affidavit from Mrs Gloria Poleo, the Clerk of the Legislative Assembly, sworn 19 June 2023. Mrs Poleo confirmed the existence of the two 2018 circulars and deposed that the Plaintiff signed the first and was a signatory to a letter dated 5 June 2018 in response to the second. That letter to the Speaker was signed by eight members including the Plaintiff and the then Prime Minister. They stated, in terms, that the proposed salary increases should be deferred to a later date because there was more work to conduct in response to His Majesty’s speech at the opening of Parliament including the need to expedite assistance to families who still resided in tents; a need to revisit the salary review to include the rest of the public servants and not just the Members of the Assembly; and "there will be a lot of noise because of salary review that is solely for” the Members of the Assembly. Mrs Poleo did not explain what, if anything, happened as a result of those representations. She did add, however, that it is open to a Member of the Assembly who wishes to object to a circular to propose a motion for debate in the Assembly in respect of the circulars,[8] and that she had found no record of any written or verbal motion in the Assembly proposed by the Plaintiff or any other Member seeking to debate the circulars.[9]
  2. On 3 July 2023, the Plaintiff filed a notice of opposition to the challenge and a further affidavit by him disputing parts of Mrs Poleo’s affidavit evidence while the balance of his affidavit comprised legal submissions.

Defendant’s submissions

  1. The Defendants’ written submissions,[10] may be summarised as follows.
  2. At common law, the jurisdiction of the English House of Commons over its internal proceedings was absolute and exclusive. The courts respected the need for the House to be able to regulate its internal processes without impediment. This parliamentary privilege was considered to be essential for the effective functioning of the House.[11]
  3. The Legislative Assembly of Tonga is also vested with this common law privilege, in accordance with the Civil Law Act. However, in Tonga the privilege is not absolute. The Supreme Court has jurisdiction, in certain circumstances, to inquire into the Assembly’s internal proceedings. In particular, it has jurisdiction if there has been a breach of the Constitution affecting a “condition of the validity of the law”. An example of such a breach is if a Bill is enacted without a majority vote (clause 56) or without a proper quorum (clause 69).
  4. On the other hand, compliance with internal rules of procedure in the course of the passage of legislation is not a “condition of the validity of the law”.[12] This is so even where the Constitution requires internal rules to be made, and deems those internal rules to be “binding and of force”.[13] The rationale for this position is that internal rules are detailed, complex and contain relatively insignificant procedural directions, and it is not appropriate for the Court to be intervening at that level.
  5. In Tonga, the position was stated by the Privy Council in Fotofili v Siale, ibid, as:
‘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 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 that the question may involve internal proceedings of the Assembly.’
  1. In Minister of Police v Moala, ibid, the Court of Appeal held that the Supreme Court did have jurisdiction to consider whether charges were lawfully brought by the Assembly against the plaintiffs, even though that would necessitate a consideration of the Assembly’s internal proceedings, because the plaintiffs alleged that the Assembly had acted in breach of cl 70 of the Constitution.
  2. In the 2013 decision in Lord Sevele of Vailahi v Pohiva, ibid, the Supreme Court held that, notwithstanding that a breach of the Assembly’s rules of procedure had been alleged, it did not have jurisdiction as there was no breach of a “discrete provision of the constitution”.
  3. The Tongan authorities are consistent with Australian jurisprudence, where there is also a written Constitution in place. In Cormack v Cope,[14] Barwick CJ said that the Court will not interfere with “the intra-mural deliberative activities of the Parliament” but has a duty to interfere if the “constitutionally required process of law-making” is not properly carried out.
  4. In order for the Court to have jurisdiction, it is incumbent on the Plaintiff to identify a discrete provision of the Constitution which is said to have been breached. The Plaintiff’s Statement of Claim refers to clauses 56 and 62.
  5. Clause 56 sets out the “methods of law-making” that are required to be observed before a Bill is lawfully enacted.[15] The Court would have jurisdiction to consider an alleged breach of clause 56, even though this may involve an inquiry into the internal proceedings of the Assembly. However, the Plaintiff does not plead a breach of clause 56.
  6. Having regard to its language and legislative history, the proper ambit of clause 62 is to empower the Assembly to make its own rules of procedure and affirm the right of Members of the Assembly to introduce a Bill, propose a motion for debate, or present a petition.[16] The Defendants accept that the Court would have jurisdiction to consider a proceeding if it was alleged that an individual member was deprived of the right to introduce a Bill, propose a motion for debate, or present a petition to the Assembly. But that is not the Plaintiff’s case. The Plaintiff’s case appears to be that, because cl 62(1) provides that the “Legislative Assembly shall make its own rules of procedure for the conduct of its meetings”, a breach of any such rules is a breach of the Constitution. In order for that argument to succeed, the Plaintiff would have to establish that the intent of clause 62(1) was to abrogate the parliamentary privilege relating to internal proceedings. It is only clear, unambiguous provisions that will override or abrogate an aspect of parliamentary privilege.[17]
  7. Compliance with the Assembly’s rules of procedure is not a condition of the validity of a law. In Namoi Shire Council v Attorney-General,[18] the plaintiff sought a declaration that an Act was invalid because in the course of the Bill’s passage through the Legislative Assembly, there were alleged contraventions of the Standing Orders which were prescribed by s 15 of the (NSW) Constitution Act to be “binding and of force”. The New South Wales Supreme Court, in adopting the same language as the Tongan Privy Council in Fotofili v Siale, determined that it did not have jurisdiction to consider the application because compliance with the procedural rules was clearly not a “condition of the validity of a law otherwise validly enacted”, given “the great variety of subject matter, including relatively insignificant procedural directions, with which Standing Orders might, and do, deal”. The Court cautioned that, otherwise, “there would be the possibility of a challenge to legislation many years after its enactment on the ground that some, perhaps minor, procedural direction of the Standing Orders ... had not been fulfilled”. Further, even in the face of the express language in ss 15(2) that the procedural rules would “become binding and of force”, the Court determined that “the very nature and function of Standing Orders of a legislative House indicates that they should be considered as directory, rather than mandatory” by the Court. Clearer language would be needed if the intention of ss 15(2) was to “impose a condition upon the effective exercise of the legislative power”.
  8. Clause 62(1) empowers the Assembly to make its own rules. It does not provide, expressly or by implication, that its meetings must be conducted in accordance with those rules. Even if cl 62(1) provided to effect that its rules of procedure were “binding and of force”, for the reasons traversed in Namoi, that would not be sufficient to vest jurisdiction in the Court to scrutinise the internal workings of the Assembly.
  9. In contrast to cl 62(1), cl 62(2) contains the phrase “and it shall be dealt with in accordance with the Assembly’s rules of procedure”. Clause 62(2) does not apply to the Plaintiff’s claim as it is not alleged that there was a Bill, motion or petition that was not dealt with in accordance with the Assembly’s rules of procedure. However, even if clause 62(2) did apply, it is clear from the explanatory note that this amendment to clause 62 was intended only to affirm the right of Members to introduce a Bill, propose a motion for debate, or present a petition to the Assembly.
  10. The Rules and the Standing Orders contain considerable detail, as well as a number of minor/inconsequential procedural directions. Non-compliance can be enforced by the Assembly, but it cannot be regarded by the Court as impacting the validity of the law, or as comprising a breach of the Constitution on its own. The position would otherwise be entirely unworkable and untenable: the Assembly could not discharge its functions effectively if it were required to defend itself every time a breach of a procedural rule, however minor or technical, was alleged. It would circumvent the privilege altogether.

Plaintiff’s submissions

  1. In his submissions, the Plaintiff also referred to the decisions in Fotofili, Moala and Sevele. I will not repeat here the same salient passages. Otherwise, the Plaintiff’s submissions[19] may be summarised, relevantly, as follows.
  2. Unlike in Fotofili, the circulars here, presented as both motions and resolutions, were neither decisions made by the Assembly collectively, nor were they decisions based on any express provisions of the Rules.
  3. As there was no reference to any pay rise in resolution 58-A/2018, which was the basis for resolution 60A/2018, there was no authority for the budget allocation for payment of the pay rises.
  4. The resolutions directly breached cl 62(2) because they were not introduced by any member of the Assembly, and they did not comply with the second mandatory requirement of cl 62(2), namely, that a motion, Bill or petition, ‘shall’ be dealt with in accordance with the Rules. The constitutional obligation to make its Rules also imposes a mandatory obligation on the Assembly to follow them. Thus, a breach of the Rules is an “automatic breach” of cl 62(2).
  5. By the definitions provided by the Rules, a resolution is the outcome of a motion that has been debated, voted on and passed. That did not happen with the subject resolutions, which were not trivial but rather had significant financial implications.
  6. The importance of resolutions is demonstrated by other provisions of the Constitution such as clauses 70 (imprisonment for offences against the Assembly), 50B (vote of no confidence) and 75 (impeachment). The seriousness of those matters supports an interpretation of cl 62(2) that it is not merely a direction, but that mandatory compliance is required. Resolutions and motions must be recorded in the Assembly’s journal of proceedings pursuant to cl 72. The Defendants have admitted herein to having no record of the subject resolutions – a clear breach of cl 72.
  7. If the legal system in Tonga is to function effectively and lawfully, the Defendants must be seen to be the guardians of their own Rules and to uphold them. To downplay the importance of the Rules as is apparent from the Defendants’ submissions, to justify breaching their own Rules, does not assist them.

Defendants’ reply

  1. In reply, the Defendants submitted as follows.
  2. The basis for the Plaintiff’s claim cannot constitute a breach of the Constitution, and the Court is therefore precluded from determining the claim by Parliamentary privilege, because “the Defendants accept that the resolutions were not motions; therefore they were not required by cl 62(2) to be dealt with in accordance with the Rules”. In any event, whether the resolutions were dealt with in accordance with the Rules, Standing Orders or practices cannot constitute a breach of clause 62(2).
  3. The authority for the budget allocation for the increased salary payments was the Act and the Minister of Finance’s authority under the Public Finance Management Act.[20]
  4. “The Plaintiff is asking the Court to invalidate an Act of Parliament based on an enquiry into the internal proceedings of Parliament - which the Court cannot do”.
  5. The Plaintiff's submission in relation to a breach of cl 72 has not been pleaded, but in any event, there was no breach of cl 72 in not recording the resolutions as motions "because everyone accepts they were not motions".

Consideration

  1. The common law of England on Parliamentary privilege is well-known and not in issue here. Pursuant to ss 3 and 4 of the Civil Law Act, that English common law is to be applied in Tonga only so far as no other provision has been made by or under any Act in force in the Kingdom, and only so far as the circumstances of the Kingdom and of its inhabitants permit and subject to such qualifications as local circumstances render necessary.
  2. Since Fotofili v Siale, the law in Tonga, with its unitary written Constitution, on the issue raised by this application is well-settled: 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. As the Privy Council stated, where the Assembly has acted contrary to the provisions of the Constitution in the course of its proceedings, the Court is given jurisdiction by cl 90, which provides, relevantly:
"The Supreme Court shall have jurisdiction in all cases in law and equity arising under the Constitution and laws of the Kingdom ..."
  1. As noted in the leave ruling, there is no issue that the Plaintiff’s claim seeks to have the Court enquire into the Assembly’s internal proceedings. The primary issue then is whether the alleged conduct complained of could amount to a breach of the Constitution. Counsel for the Defendant accepted that on an application such as the present, the test is not whether there has been a breach but, as Chief justice Scott framed the issue in Sevele v Pohiva,[21] whether a breach has been alleged. As noted above, by his Statement of Claim, the Plaintiff has alleged breaches of, inter alia, cl 62(2). However, and as counsel for the Defendants also agreed, I consider the appropriate question to be whether the Plaintiff’s pleaded allegations present an arguable case that the Defendants breached the Constitution.
  2. It was also accepted by counsel for the Defendants during oral submissions that in circumstances where there is a minimum of evidence before the Court in the form of affidavits filed for the leave application and now this, and none of that evidence has been tested, the Court ought proceed in relation to any factual matters relevant to a consideration and determination of the central issue similar to that for summary judgment applications, that is, that the Plaintiff’s pleaded allegations are to be taken at their highest.
  3. Even though in their written primary submissions,[22] the Defendants deny that there were any irregularities in their internal proceedings in relation to the subject resolutions, for the reasons stated in the leave ruling,[23] I remain of the view, and only for the purpose of the present application, that the Plaintiff’s pleaded claims, taken at their highest, do establish an arguable case that the subject resolutions, through the use of circulars, were not dealt with in accordance with the Rules.
  4. The controversy then reduces to this: whether non-compliance with the Rules in respect of the subject resolutions can constitute a breach of cl 62(2)?
  5. The Defendants’ acceptance in its written primary submissions[24] that the Court would have jurisdiction to consider a proceeding if it was alleged that, in breach of cl 62(2), a Member was deprived of the right to introduce a Bill, propose a motion for debate, or present a petition to the Assembly, which might be regarded as the first limb of the provision, did not extend to consideration of the second limb, namely, that any such Bills, motions and petitions shall be proposed and dealt with in accordance with the Rules. During oral submissions, Mr Laurenson KC conceded (rightly with respect) that a contravention of that second limb could constitute a breach of cl 62(2), thereby enlivening the Court’s jurisdiction under cl 90 and rendering the alleged breaches examinable notwithstanding any necessary requirement to enquire into the Assembly’s proceedings.
  6. The Defendants’ following argument[25] that the Plaintiff would have to establish that the intent of cl 62(1) was to abrogate parliamentary privilege relating to internal proceedings, is, with respect, not to the point. In my opinion, the preferable and more poignant question is whether the intent of cl 62(2) was to abrogate or modify parliamentary privilege?
  7. As noted in the introduction above, at the time of the decisions in Fotofili and Moala, cl 62 only provided that the Assembly shall make its own rules of procedure for the conduct of its meetings and is retained in the current subclause (1). Subclause (2) was introduced in 2010 as part of the political reforms. Therefore, those decisions which pre-dated it are distinguishable from the present. In the 2013 decision of Sevele v Pohiva, cl 62(2) was not considered. To date therefore, cl 62(2) has not been the subject of any curial interpretation.
  8. In Fotofili, the Committee observed that:
“A Court in Tonga faced with a plea that it should inquire into the internal proceedings of the Assembly will obtain no help from any Act or Ordinance in force in Tonga in determining its jurisdiction so to do. In such a delicate constitutional situation the Court would look for a clear mandate to proceed.”
  1. In my opinion, and for the reasons which follow, in the circumstances of the present case, cl 62(2) represents “another provision” under an Act in force in the Kingdom for the purposes of the Civil Law Act, thereby displacing or at least qualifying the importation of the English common law on parliamentary privilege, and provides a “clear mandate” for the Court to proceed as a “Court of Constitutional protection”.[26]
  2. Firstly, on a plain reading, the text of what I have dubbed the second limb, is clear and unambiguous. Bills, motions and petitions must be proposed and dealt with by the Assembly in accordance with the Rules required by cl 62(1). If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or meaning: Gough Finance Ltd v Westpac Bank of Tonga [2005] Tonga LR 390 at 394. As such, I do not consider it necessary to resort to extrinsic aids such as the explanatory note to the 2010 amendment Bill referred to by the Defendants. But even if one does, the absence in that note of a reference to the second limb of cl 62(2) cannot derogate from or diminish its plain meaning and effect.
  3. Secondly, in my view, the evident intent and purpose of the requirement for compliance with the Rules, viewed in the context of the 2010 political and other Constitutional reforms, is to provide an express safeguard to the integrity of the political process by ensuring, through the Supreme law,[27] that the Assembly not only makes Rules for the conduct of its meetings, and empowers Members to introduce Bills, motions or petitions, but that the Assembly abides by its Rules when dealing with Bills, motions or petitions. To suggest otherwise would have the impermissible effect of converting the word "shall" to "may". For that reason, the Defendants’ submission that the provision should be considered as directory, rather than mandatory, cannot be accepted. In my view, the language of cl 62(2) is clearer and goes further than that in Namoi (“binding and of force”).
  4. Thirdly, the UK, Australian and New Zealand decisions referred to by the Defendants for the proposition that compliance with the Rules is not a condition “of the authentic expression of the will of the legislature, or otherwise the validity of a supposed law”, are distinguishable by reason of the language of cl 62(2) and, in any event, are of limited application to the present case for the simple reason that the Plaintiff’s claim does not seek to impugn the validity of the Act.
  5. Fourthly, and in the Tongan context, I reject the Defendants’ submission[28] that “the position would otherwise be entirely unworkable and untenable: the Assembly could not discharge its functions effectively if it were required to defend itself every time a breach of a procedural rule, however minor or technical, was alleged. It would circumvent the privilege altogether”. There is no evidence on this application, whether from the First Defendant himself, any other Member of the Assembly or even Mrs Poleo to support that assertion. It must be presumed that in 2010 when cl 62(2) was enacted, without limitation, qualifications on the extent of compliance or distinction between minor or technical breaches compared to say major or substantive ones, that the then Parliament intended that when it comes to, specifically, Bills, motions and petitions, all the applicable Rules are to be followed. Conversely, had Parliament at the time intended some form of distinction between seriousness of breaches and their ramifications, the provision could easily have been worded to reflect that. It must also be presumed that the legislature intended to pass legislation that would work[29] and that therefore the workability or otherwise of the requirements of cl 62(2) was known and understood by Parliament when it was enacted.
  6. By comparison, it was not suggested, for example, that strict compliance with the requirements of cl 56 for the passing of a Bill would be unworkable or untenable. And, as counsel accepted, just as a non-compliance with that clause would constitute a breach of the Constitution, it must follow that non-compliance with the second limb of cl 62(2), which is expressed in equally mandatory terms, must also be capable of constituting a breach.
  7. Further, apart from conveying an impression that the Defendants’ position is that its Rules are optional when dealing with Bills, motions or petitions, this submission also elicits a rhetorical question: what can be so difficult about dealing with Bills, motions and petitions, as opposed to all its other business not caught by cl 62(2), in accordance with the Rules? After all, Members of the Assembly swear oaths to “righteously and perfectly conform to and keep the Constitution”.[30] No discernible answer to that was proffered in submissions or during the hearing.
  8. The available evidence and pleaded allegations here also raise a corollary question: why wouldn’t the Assembly follow its Rules when dealing with Bills, motions or petitions? Those Rules, as referred to in the leave ruling, provide, in terms, for those modes of business to be tabled in Parliament, debated on in Parliament and voted on in Parliament. Ordinarily, those events are recorded and are accessible to the media and the public. It appears that a practical effect of the ‘business’ of the proposed pay rises, approved by the use of circulars here, whether intended or not, was their omission from Hansard and public view.
  9. The final plank to the Defendants' objection to jurisdiction was that the Plaintiff cannot mount an arguable case because the resolutions were not Bills, motions or petitions and therefore cl 62(2) cannot be engaged. The submission suffers, with respect, from circular reasoning and cannot be accepted. It is more than tolerably clear from the Plaintiff’s pleaded case that his main complaint is that the resolutions ought to have been dealt with as motions. It is common ground in all the material filed thus far that the proposals in the circulars relating to the pay rises, once passed by a majority ticking their approval on the circulars, were treated thereafter and consistently referred to as “resolutions”. As set out in the Statement of Claim, a “resolution” is defined in the Rules as any motion passed by the Assembly. A “motion” is defined as a written or verbal proposal made by a member to the Assembly to act or express an opinion on a particular matter. In my view, it is more than arguable that the proposals in the circulars constituted “motions” as defined and, that once passed, they became “resolutions” as defined.
  10. For those reasons, I am of the view that the Plaintiff has, at this stage of the proceeding, established an arguable case that:

Result

  1. The Defendants’ challenge to jurisdiction is refused.
  2. The Plaintiff has leave to proceed.
  3. The Defendants are to file a Statement of Defence by 22 September 2023.
  4. The Plaintiff is to file any Statement of Reply by 13 October 2023.
  5. The matter will be listed for further directions before Tupou J on 20 October 2023 at 9 AM in court 2 or such other date as Her Honour may advise.
  6. The costs of the Defendants’ application shall be costs in the cause.

NUKU’ALOFA
M. H. Whitten KC
24 August 2023
LORD CHIEF JUSTICE

[1] Resolution Number 58-A/2018 (dated 22 March 2018) and Resolution 60A/2018 (dated 30 May 2018).

[2] Paragraphs 67 to 86.

[3] Also reported at [1996] Tonga LR 227.

[4] Moala v Minister of Police (No. 3) [1996] Tonga LR 211; Lasike v Noble Tu'iha'angana [2006] Tonga LR 161.

[5] Act of Constitution of Tonga (Amendment) (No.2) Act 2010, s 20.

[6] Including Sevele v Pohiva [2013] TOSC 49, which post-dated the 2010 amendments.

[7] The Defendants were served with the Writ and Statement of Claim on 22 May 2023. Pursuant to Order 8 rule 3(1), the 28-day period in which the Defendants were required to file a defence expired on 19 June 2023. The application was therefore out of time, but the Plaintiff has not taken issue with that.

[8] [7]

[9] [8]

[10] Filed 21 July 2023.

[11] Citing Blackstone’s Commentaries (1765) 1 Comm 163; Bradlaugh v Gossett [1884] UKLawRpKQB 20; (1884) 12 QBD 271; Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (25th edition, 2019) at [16.3]; McGee, David Parliamentary Practice in New Zealand (4th ed, Oratia Books) at p 706, 713 and 742; Huata v Prebble [2004] NZCA 147; [2004] 3 NZLR 359 (CA) at [44] - [55].
[12] Namoi v Attorney-General of New South Wales [1980] 2 NSWLR 639 (SC) at 644.
[13] Namoi v Attorney-General of New South Wales [1980] 2 NSWLR 639 (SC) at 645.
[14] Cormack v Cope (1974) 131 CLR 432 (HCA) at 453.

[15] The King and the Legislative Assembly shall have power to enact laws, and the representatives of the nobles and the representatives of the people shall sit as one House. When the Legislative Assembly shall have agreed upon any Bill which has been read and voted for by a majority three times it shall be presented to the King for his sanction and after receiving his sanction and signature it shall become law upon publication. Votes shall be given by raising the hand or by standing up in division or by saying “Aye” or “No”.

[16] Citing the explanatory note to the 2010 amendment Bill: “Subclause (1) is the same as before, but sub-clause (2) is new and is designed to improve the effectiveness of individual members of Parliament by confirming their right to introduce a Bill or propose a motion or present a petition”.
[17] McGee, David Parliamentary Practice in New Zealand (4th ed, Oratia Books) at p 713.
[18] Namoi Shire Council v AG [1980] 2 NSWLR 639.

[19] Filed 15 August 2023.

[20] Referring to the Minister’s affidavit in opposition to a separate application by the Plaintiffs to join the Minister as a defendant to the proceedings which is yet to be heard or determined.

[21] Ibid at [13].

[22] [39]

[23] [87] to [98].

[24] Recited at paragraph 25 above.

[25] Also summarised paragraph 25 above,

[26] Moala v Minister of Police (No. 3), ibid.

[27] Cl 82.

[28] Recited at paragraph 29 above.

[29] Edwards v Fifita [1999] Tonga LR 75.

[30] Clause 83 of the Constitution.

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