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Fasi v Speaker of the Legislative Assembly of Tonga [2024] TOSC 8; CV 43 of 2023 (8 January 2024)


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


CV 43 of 2023


BETWEEN:
1. DR. ‘UHILA-MOE-LANGI FASI
2. MATENI TAPUELUELU
3. DR. ‘AISAKE VALU EKE
4. PAULA PIVENI PIUKALA
5. KAPELI LANUMATA
6. DR. TANIELA L. FUSIMALOHI
7. MO’ALE FINAU
PLAINTIFFS


AND:
1. SPEAKER OF THE LEGISLATIVE ASSEMBLY OF TONGA
2. LEGISLATIVE ASSEMBLY OF TONGA
DEFENDANTS


PARTIES
Miss Afu and Miss Fanunu for the Plaintiffs
Mrs Stephenson KC for the Defendants


CORRIGENDUM


ORDERS MADE BY: COOPER J
DATE OF ORDER: 8 JANUARY 2024


THE COURT ORDERS THAT:


  1. It has no jurisdiction to hear the application for judicial review and dismisses the Plaintiffs’ action.
  2. The Plaintiffs pay the costs of the Defendants of and incidental to the hearing.

At paragraph 22 the word “vote” was incorrectly inserted instead of “debate”, as was the intention. This has been corrected.


Reasons for Judgement


  1. On 11 September 2023 an ex parte application on behalf of Dr. Fasi and six other members of Legislative Assembly was filed seeking leave to bring judicial review proceedings against the decision of Lord Speaker, Lord Fakafanua and Legislative Assembly on three grounds, in summary:
  1. The Motion of no confidence in the Prime Minister was tabled and before the House on 5 September 2023.
  2. In tandem to the application for leave, the Applicants submitted an ex parte application for an interim injunction to prohibit the Legislative Assembly from sitting until the judicial review hearing had been decided upon.
  3. That application for an interim ex parte injunction was adjourned and then further stayed.
  4. Application for leave to bring judicial review was granted on 9 October 2023.
  5. The ex parte application for an interim injunction was then heard inter parties.
  6. On 24 November 2023 submissions were made on both sides. The Attorney General at the invitation of the Court joined those proceedings as Amicus.
  7. That application was refused 1 December 2023.
  8. In the meantime, on 10 November 2023 the Defendants, pursuant to Order 7, rule 2 (f) Supreme Court Rules, challenged the Plaintiffs’ jurisdiction to bring the application for judicial review. Their application was filed along with the affidavit of Lord Speaker of same date.
  9. They argue
  10. The Plaintiffs filed their response 30 November with affidavits deposed by The Right Honourable Mateni Tapueluelu filed 29 November 2023, The Right Honourable Dr. Aiseke Eke filed 11 September 2023, a second affidavit of The Right Honourable filed 11 September 2023, The Right Honourable Piveni Piukala filed 11 September 2023 and The Right Honourable Kaeieli Lanumata filed 11 September 2023.
  11. I acknowledge that none of the evidence has been tested by cross-examination and so take the plaintiffs’ claims at their highest.
  12. Turning to each argument in turn
  1. The Plaintiff’s submission can be summarised in this way; Clause 62 of Constitution provides for the Assembly to make its Rules of Procedure (the Rules). In so doing it must be implied that they are bound to follow those Rules.
  2. If there is a breach of the Rules that effectively means, there has been a breach of the Clause 62 of Constitution.
  3. It is agreed on both sides that where there has been a breach of a discrete provision of the Constitution a court has jurisdiction to review the House’s proceedings that involve the alleged breach.
  4. The Plaintiffs submit this is precisely what has happened by there being no debate of the vote of no confidence in the Prime Minister.
  5. The sequence of events was that a vote of no confidence in the Prime Minister was tabled correctly under the Rules 84 A to 84 D. This has not been argued against.
  6. The Plaintiffs contend that Rules 84 F dictates that Motion having been received, it is for the Lord Speaker to then table it for debate:

Rule 84 F


(1) The Speaker shall, in compliance with the time allowed under Rule 84A (1), table a Motion for a Vote of No Confidence in the Prime Minister for debate in the Legislative Assembly.


(2) When a Motion for Vote of No Confidence in the Prime Minister is debated in the Legislative Assembly, there shall be no other matter debated in the Legislative Assembly until the Motion is concluded.


Provided that no Motion for a vote of no confidence in the Prime Minister shall be tabled or discussed when the Annual Estimates are being discussed.


(3) The procedure for deliberation on a Motion for Vote of No Confidence in the Prime Minister shall be in accordance with the Rules of Procedure and as set out under PART 4, Division 3 of these Rules; the Rules on debate Rules 36 to 61.


  1. Thus the Plaintiffs rely on Clause 62 (2) (b) of Constitution, to argue that proposing the Motion for the vote of no confidence in the Prime Minister, requires the Members of the House to debate that Motion.
  2. They submit this is so because a vote of no confidence in the Prime Minister has its own specific requirement that there is a debate on that Motion, which is a mandatory requirement imposed under Rule 84 F (1).
  3. If there was no debate, the Rules have not been followed and so have been breached. The making of the Rules (and following them, it is submitted) are enshrined in the Constitution. Not to follow them is a discrete breach in the Constitution and so the Court has jurisdiction to review that decision of the House to not debate the vote of no confidence in the Prime Minister (the Argument).
  4. The Defendants argued, inter alia

The burden is on Plaintiffs to demonstrate they have a good arguable case the Court has jurisdiction to entertain the judicial review.


In so assessing the Plaintiff’s claims, the Court needs to consider


Discussion


  1. The burden rests upon plaintiffs, this was not argued against.
  1. The Defendants submitted that the Plaintiffs had to establish a ‘good arguable case’. The Plaintiffs argued the test has always been establishing an arguable case.
  2. What is the distinction between an arguable case and a ‘good’ arguable case?
  3. I see none.
  4. If it is not good, it would be a bad argument, so not an arguable case at all.
  5. In respect of each head of claim I have approached each separate ruling asking myself whether there was an arguable claim.

Judicial review and The Legislative Assembly


  1. The accepted starting point is that the Court has no power to inquire into the internal proceedings of the Legislative Assembly unless there has been a breach of a discrete Clause of the Constitution.
  2. The argument pivots on this point: a breach of Clause 62 wherein the Legislative Assembly has the right to make its own rules; it follows it means that those rules must be complied with.
  3. I apprehend that submission requires the Court to make an interpretation that goes beyond the plain words of the Constitution.
  4. The Legislative Assembly did indeed make its own Rules pursuant to the Constitution. No party has argued otherwise and both have referred me to the current set of Rules.
  5. Can or should a Court take the further step of inquiring into the question of whether those Rules have been followed, because an argument that they potentially have not, falls under the head: a breach of a discrete clause of the Constitution?
  6. In analysing that question I have gone on to consider the material and affidavits before me and all the written and oral submissions.
  7. In the final analysis, the following material has played an important role in shaping the answer to that question
  8. I pause to consider a discrete argument raised by the Defendants that there is authority to support their contention that a Court may inquire into the procedure of the Legislative Assembly’s in following Rules.
  9. I have had my attention directed to Moala v Kingdom of Tonga [1996] TOSC 6 and the appeal of that decision Minister of Police v Moala, Akau’ola & Pohiva [1997] Tonga L.R. 210.
  10. I consider the Appeal decision does not support that contention. The appeal approved the lower court’s decision that natural justice applied to trials under Clause 70, as per the decision of Hampton CJ, but was finally decided upon the question of whether the defendants had been convicted for an offence that existed at law. The finding was they had not.
  11. Therefore, that series of cases does not appear to answer the point raised in the argument.
  12. Moving on with the argument, the Privy Council in Fotofili v Siale noted that

In a delicate constitutional situation, the Court would look for a clear mandate to proceed. [3]


  1. Turning next to the Cabinet Manual, it acknowledges the importance of the three heads of government. It seeks to reflect the law accurately and notes it is neither “regulation or statute.”[4]
  2. It states

The judicial power also enables the Supreme Court, if asked to do so, to examine actions by the Cabinet or a Minister or a Public Official – and to interpret all law in appropriate cases to ensure that it is not inconsistent with the “supreme law” of the Constitution.[5]


  1. The role of courts in holding Minsters accountable is stressed[6] and the role of judicial review in holding the Executive accountable is highlighted under Part 8, paragraphs 149 to 154.
  2. The Manual is silent on any role a Court may have in reviewing the workings of the Legislative Assembly.
  3. Moving on again, Sir Nicholas Blake described a court’s powers of judicial review in this way:

Judicial review allows ordinary people to ask an independent judge to decide whether a public body has acted lawfully or not. There is an imbalance of power between individuals and the state, which judicial review bridges-it must be effective and accessible to all. The availability of this test drives good governance. It also enhances trust in state institutions and public decision making. [7]


  1. The powers of the judiciary are essential in any such question, not least because “Governments sometimes make mistakes and an independent judiciary equipped with strong judicial review powers is essential to confine government action to its lawful sphere.”[8]
  2. In this case it is not just any state institution nor an action brought by an ordinary person, but a challenge to the proceedings of the Legislative Assembly by a number of its members.
  3. The argument needs to be seen in the light of the doctrine of separation of powers and the delicate balance that needs be struck, in this case, between judiciary and Legislative Assembly.
  4. The separation of powers doctrine protects the liberty of the citizen by preventing the concentration of power in, and pursuant abuse of power by, any one branch.
  5. In considering where judicial inquiry may start, in keeping with these factors, I have also considered ,the Latimer House Principles, the Practitioner’s Handbook[9], especially the chapters on Separation of Powers in a Democratic Country and Principal 1: The Three Branches of Government.
  6. Both sides in their arguments have endorsed the importance of the Latimer House Principles.
  7. The Commonwealth, which the Kingdom of Tonga joined on June 4 1970, is a voluntary association of 54 member countries that support each other and work together within agreed set of standards and principles, those are set out in the Commonwealth Charter which consolidates previous Commonwealth Declarations and other instruments, including the Latimer House Principles.
  8. These are the principles that were adopted by the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association meeting at Latimer House in the United Kingdom from 15 to 19 June 1998. The intention was to adopt the Principles and Guidelines proposed by the Commonwealth Heads of Government Meeting and for their effective implementation by member countries of the Commonwealth. The statement of Principles went on

The successful implementation of these Guidelines calls for a commitment, made in the utmost good faith, of the relevant national institutions, in particular the Executive, Parliament and the Judiciary, to the essential principles of good governance, fundamental human rights and the rule of law, including the independence of the judiciary, so that the legitimate aspirations of all the peoples of the Commonwealth should be met.


Each institution must exercise responsibility and restraint in the exercise of power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by the other institutions.


  1. Preserving the independence of Parliamentarians was re-affirmed in their quoting article 9 of the Bill of Rights 1688 under the section entitled, Preserving the Independence of Parliamentarians

“That the freedom of speech and Debates and Proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”


  1. Thereafter these principles have been debated and adopted by the Heads of Government in Abuja in 2003, and “...they greatly strengthened the existing body of beliefs and goals of [the United Kingdom’s Commonwealth Parliamentary Association], as set down in Singapore in 1971, Harare in 1991 and Millbrook in 1995.”[10]
  2. That the application of these guideline Principles were recognised throughout the Commonwealth, not least in Tonga[11] was noted with approval by Dr. Karen Brewer and Dr. Peter Slinn, in their essay; The Commonwealth Principles (Latimer House) on the relationship between the three branches of Government: Twenty years on.[12]
  3. Most recently at the Rule of Law seminar at Marlborough House in London on 7 December 2023, this was said

Each Commonwealth Country’s Parliaments, Executives and Judiciaries are the guarantors in their respective sphere of the Rule of Law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standard of honesty, probity and accountability.


One of the key strengths of the principles is that they go beyond the pure doctrine of separation of powers into the grey areas. The principles recognise the complex and interlocking network of the relations between the Legislature, Executive and the Judiciary, acknowledge the need for oversight mechanism through which officers may be held responsible for their actions.[13]


  1. When reviewing these Principles, the extent of implementation in the Commonwealth and the fundamental aims they are built on, acknowledging their key purpose as enshrined in the Bill of Rights and therein held up as a touch stone, I conclude it cannot be going too far, and must simply be a reflection of the jurisprudence of each Commonwealth Country to conclude:
  2. No Court can competently rule on an application to challenge a decision or process of the Legislative Assembly without taking account and acknowledging the Latimer House Principles.
  3. The question for me is when, if ever, should the Court’s powers impinge upon the governance of the Legislative Assembly in conducting its business as permitted under their Rules?
  4. In considering this question I turn to a word repeated in these declarations; “governance”. It would do as well to consider this for a moment, because governance means something more than just exercising power.
  5. The Oxford English Dictionary lists this definition

The manner in which something is governed or regulated; method of management, system of regulation


  1. It may be seen as the use of authority properly administered and controlled. I conclude that governance is the application of power, through the use of rules, which must of itself, and all the while, acknowledge the scope of those Rules, and not to the exclusion of checks and balances accommodated within those Rules.
  2. With that in mind, I move on to the heart of the Plaintiffs’ claim articulated in the argument.
  3. The Latimer House Principles are clearly aimed at ensuring any interference by, in this case, the Judiciary upon the Legislative Assembly, happens as infrequently as possible, if at all.
  4. Raised in legal submissions before me on behalf of the Defendants (though not spoken to in their oral submissions on behalf the Plaintiffs in reply) the argument that the Rules already cater for and provide sanctions for non-compliance is, in my estimation, a key consideration.
  5. On a plain reading, good governance is the establishment and use of purposeful, workable Rules; using them to their ends and in so doing using them to their full scope.
  6. A debate that is to proceed a vote of no confidence in the Prime Minister, as argued by the Plaintiffs, is to be governed by the Rules of Debate as set out at Rules 36 to 61.
  7. Therein Rule 49 that deals with non-compliance

or in the Committee of the Whole House, -


  1. fails to comply with these Rules;
  2. behaves in a disorderly manner, or
  1. has been warned once but persists or continues to obstruct a meeting,

and has been named by the Speaker or Chairman,

is in breach of these Rules.


  1. Rule 49 (2), (3) and (4) and Rule 50 then provide for the manner of sanctioning the breach, the offender can be subject to an order to vacate the House and to a period of suspension for up to 14 days.
  2. Therefore that provides for the Legislative Assembly to govern itself in the exercise of its powers[14].
  3. The House has power to regulate itself when a breach is complained of.
  4. It is not for a Court to say whether those Rules on non-compliance go far enough, as that would be an inquiry into the Rules, which are for the Legislative Assembly itself to make. Therefore, that forms an internal process of the House.
  5. It may also be instructive to return to the Constitution at this point.
  6. Clause 70 governs offences against the assembly, inter alia

Any person who –


70 (1) (b)


by any act or omission, interferes with, obstructs or impedes the Legislative Assembly in the performance of its function;


...


may, by resolution of the Legislative Assembly, be imprisoned for any period not exceeding thirty days and if he is a member of the Assembly he may be suspended from the Assembly for up to thirty days in substitution for or in addition to any other penalty.


Under Clause 70 subsection (2) (e)


The Legislative Assembly may give such directions and authorise the issue of such warrants as are necessary or convenient for carrying this clause into effect.


  1. The Legislative Assembly is empowered under the Constitution to take steps of itself to control “the performance of its function.”
  2. It follows, as a matter of logic, that the starting point for a Court in considering a question as to the application of the Rules, bearing in mind the need, in as far as possible, to not interfere in another’s sphere of governance, is to ask whether the House had used all the remedies available in governing itself?
  3. The answer must be no, it had not.
  4. There is at least one mechanism open to the Legislative Assembly to deal with an alleged breach of the Rules on Debate. But, it was not being explored.
  5. The corollary is that were a Court to interfere in the process at this point, it would stop the House from following its own Rules and would supplant them.
  6. Accordingly, when considering the argument in fact the Rules have not been fully engaged in considering the dispute within the House.
  7. In following the Latimer House Principles, I conclude a Court must step back and let all rules and mechanisms for internal dispute within the Legislative Assembly be allowed to play out, so as to maintain their own sphere of governance.
  8. As noted above, to do otherwise would be to usurp the Rules.
  9. A decision based on these Principles may also tend to strengthen the doctrine of Ministers being accountable to Parliament, a key point where Privilege, responsibility and good governance intersect.
  10. It also serves as a route to identifying that there is no clear mandate that a court ought to proceed with this inquiry. The Latimer House Principles, the Manual and the Constitution itself all suggest the Legislative Assembly has been given its own powers to perform its function and in ensuring it is correctly followed.
  1. The submission that was developed before me by the Plaintiff’s was that by failing to allow the debate in the vote of no confidence in the Prime Minister, the Defendants have breached the Constitution, since Clause 83 of the Constitution states they each had to take an oath to uphold the Constitution.
  2. By breaching the Constitution in not holding the vote they breached their oaths under Clause 83.
  3. The Defendants have argued that Clause 83 only requires a member of the Legislative Assembly to take the oath and imposes no further requirement upon him or her.
  4. The Plaintiffs have argued that it would be meaningless to have a requirement that a Member of Parliament take an oath to uphold the Constitution if it did not require them to abide by the words of the oath.

Discussion


  1. I conclude that the same reasons I have decided the argument apply to this submission.
  2. In the alternative I have concluded this.
  3. The oath is

I solemnly swear before God that I will be truly loyal to His Majesty King Tupou VI the rightful King of Tonga and that I will keep righteously and perfectly the Constitution of Tonga and discharge the duties of my department to the end of my ability for the benefit of the King and his Government.


  1. The keeping of the Constitution “righteously and perfectly” must mean that each Member discharges their duty as a Member of the Legislative Assembly in best keeping with the Constitution.
  2. Ultimately the doing of what a Member believes is best will mean different things to different Members of the House, depending on their ideological and political views.
  3. If every time there was a dispute between Members they could accuse one another of breaching the Constitution because they hold differing views on a matter in issue before the House, then each disputed Motion, or vote, or debate would mean one party or other had breached the Constitution, at least in the eyes of those holding a contrary view.
  4. To put it differently, the exercise of the oath of a Member of the Legislative Assembly must mean it is to be in their individual conscience.
  5. Clearly no court should ever be allowed to inquire into the conscience of a Member of Legislative Assembly, to do so would fetter egalitarianism itself and no political disputes could ever be overcome through democracy.
  6. The application for leave to bring judicial review under this head was refused. It follows that the application for judicial review does not, or cannot include this head of claim. Nothing more needs to be said upon this.
  7. In considering each and every submissions on the jurisdiction arguments before me, and the causes of action in the Statement of Claim, I come back to the conclusion of Fotofili v Siale, wherein quoting the Pickin case[15]

“It would be impracticable and undesirable for the High Court of Justice to embark on an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed.”


Conclusion


  1. I rule the Court has no jurisdiction to hear the application for judicial review and dismiss the Plaintiffs’ action.
  2. The Plaintiffs must pay the costs of the Defendants of and incidental to the hearing, such costs to be taxed if not otherwise agreed within 14 days.
N. J. Cooper
J U D G E
Supreme Court, Nuku’alofa

8 January 2024

[1] Lord Sevele of Vailahi v Pohiva [2013] TOSC 49
[2] The Act received Royal Assent 16 December 1689.
[3] Fotofili v Siale. Ibid. paras 179-180.
[4] Para 7.
[5] Para 52.
[6] Para 81
[7] Journal of the Commonwealth Magistrates’ and Judges’ Association. Vol. 26 No 4 December 2023.
[8] Ibid.
[9] Practitioner’s Handbook pages 15 to 21,
[10] Mr. Kamalesh Sharma, Commonwealth Secretary-General, from his remarks at the Colloquium, July 2009.
[11] Citing the Lord Chief Justice’s decision in Tu’ifua v Public Service Tribunal [2014] 5 LRC 588, [15]
[12] Denning Law Journal 2018 Vol 30 Special Issue pp 101-119.
[13] The Honourable Marlene Malahoo-Forte KC. MP. Minister of Legal and Constitutional Affairs, Jamaica, speaking at the Rule of Law seminar. Marlborough House. 7 December 2023.
[14] Conceivably it could invoke the process of a contempt. Acts amounting to contempt of Parliament, according to Halsbury’s Laws Of England, Volume 98 (2018), Privileges of Parliament: “Among offences amounting to contempt are...disobedience of rules or orders of the House...” Waller’s Case (1720) 21 Lords Journals 429; Brandlaugh’s Case (1880) 135 Commons Journals 235.
[15] Pickin case [1974] UKHL 1; [1974] 1 All E.R. 609, per Lord Morris.

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