Supreme Court rejects Parliamentarians’ call for judicial review, but says House still has internal procedure to resolve dispute

The Supreme Court has declared that it has no jurisdiction to hear an application for judicial review of the Speaker of Parliament’s actions.

Tonga Parliament. Photo/Tonga Parliament

Judge Cooper, presiding, said the House had not exhausted all of its own options and could use contempt procedures to resolve the dispute over the handling of a vote of no confidence in the Prime Minister.

The judge said this would avoid an abuse of the doctrine of the separation of powers, under which no part of the government can interfere in the independent functioning of another.

On September MPs Dr. ‘Uhila-moe-iangi Fasi, Mateni Tapueluelu, , Dr. ‘Aisake Valu Eke, Paula Piveni Piukala, Kapeli Lanumata, Dr. Taniela l. Fusimalohi and  Mo’ale Finau filed an application to bring judicial review proceedings against the decision of the Lord Speaker of Parliament, Lord Fakafanua and the Legislative assembly.

This followed the tabling of a motion of no confidence in the Prime Minister on September 5, 2023.

The plaintiffs argued that:

They were denied their right to debate the motion on a vote of no confidence in the Prime Minister, which amounted to a breach of Clause 62 (2) of the Constitution.

The defendants broke their oaths to uphold the Constitution they were obliged to take pursuant to Clause 83 of the Constitution; and

That upon the vote on the Motion not to debate the vote of no confidence, unelected members voted, contrary to Clause 51 (6)

The defendants challenged the plaintiffs’ jurisdiction to bring the application for judicial review. They argued that the alleged breaches to clauses 62 (2) and 83 were in reality not breaches of a discrete provision of the Constitution and that what was alleged amounted to asking the Court to look into the internal proceedings of the Legislative Assembly. They said this would be impermissible, a limitation all parties accepted was the state of the law.

The plaintiffs argued that Clause 62 of Constitution provided for the Assembly to make its own Rules of Procedure.  In so doing it must be implied that they were bound to follow those rules.

If there was a breach of the Rules this meant there had been a breach of the Clause 62 of Constitution.

They further argued that Rule 84F dictated that if a motion had been received, it was for the Lord Speaker to then table it for debate.

In his summary of the case, Judge Cooper said the plaintiffs relied on Clause 62 (2) (b) of the Constitution, to argue that proposing the Motion for the vote of no confidence in the Prime Minister, required Members of the House to debate that Motion. If there was no vote, the Rules have not been followed and so have been breached. This meant the Court had the jurisdiction to review that decision of the House to not debate the vote of no confidence in the Prime Minister.

“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,” the judge said.

“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.”

The judge said Parliament had not explored all the options available to deal with an alleged  breach of Parliamentary rules. This would avoid  a situation in which one sphere of the government could be seen to be interfering in another’s sphere of governance.

He said Parliament  could invoke the process of  contempt.

“Acts amounting to contempt of Parliament, according to Halsbury’s Laws Of England, Volume 98 (2018), Privileges of Parliament include ” disobedience of rules or orders of the House…”

“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.”

The judge said going down this route might help strengthen the doctrine of Ministers being accountable to Parliament, a key point where Privilege, responsibility and good governance intersect. It also highlighted that there was no clear mandate that a court ought to proceed with such an inquiry.

Judge Cooper dismissed the Plaintiffs’ action and ordered them to pay the costs of the Defendants of the hearing.

Citing an earlier case, he said: “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.”

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