A trial to hear an election petition against Hon ‘Etuate Lavulavu for alleged corruption during his election campaign last year will go ahead on 25 November.

This was after the Chief Justice dismissed two applications by Lavulavu, made on Friday 13 November, for the trial to be adjourned and for the Chief Justice to recuse himself from hearing the petition.

Chief Justice O.G. Paulsen said the court must ensure the just but efficient and speedy hearing of an electoral petition to discourage frivolous applications, which intended to delay a hearing.

The trial, which is expected to run for three-weeks in Vava’u, will hear the election petition filed by Viliami Uasike Latu alleging Lavulavu had committed corruption and illegal activities during his campaign for the 2014 General Election. A second petitioner 'Aisea Silivenusi has withdrawn from continuing with the petition.

Lavulavu’s lawyer has also withdrawn leaving him to find new counsel.

In rejecting Lavulavu's applications in a ruling on 18 November, the Chief Justice also noted that the Tonga government's housing committee, of which Lavulavu is the chairman, had withdrawn a direction for the Chief Justice to vacate the house where he is living. He said Lavulavu’s suggestion that the housing committee would take action against the Chief Justice, “is both fanciful and mischievous.”

Housing Committee

Lavulavu had applied for the Chief Justice to recuse himself from the hearing.

“Mr Lavulavu says that I am not impartial and that he is being deprived of his right to a fair hearing,” said the Chief Justice. “I am dealing with a case of apparent bias.”

“Mr Lavulavu is the Minister of Infrastructure and the chairperson of the Housing Committee responsible for housing assets in Tonga. He says that during 2014 a Cabinet decision was made that upon the retirement of the former Lord Chief Justice his house would be made the official residence of the Prime Ministers of Tonga.

“I was appointed Lord Chief Justice in January 2015 and took up residence in that house.

“Apparently in February or March 2015 the Housing Committee made a decision to give effect to the Cabinet decision and allocated the house to the Prime Minister. Lavulavu says that one of the reasons for the decision was that the Prime Minister's house had burned down. That unfortunate event did not occur until 23 April and so could not have been a relevant consideration before the Housing Committee in February or March 2015,” the Chief Justice said. “He goes on to say that I was given a letter dated 14 May 2015 directing me to vacate the house within two weeks, athough he accepts that this direction was soon withdrawn.”

The CJ said in addition, Lavulavu said there is money owing to the Government by the former Chief Justice for rent, water, electricity and costs associated with the removal of ‘renovations’ from the house. “The Housing Committee is, he says, considering claiming this money from me as the present occupier of the house.”

The CJ said the Lavulavu said that these matters had given rise to a conflict between them since February 2015.

He said while it was correct that he had received a letter asking him to vacate his house within two weeks, "I have never had any contact whatsoever with Lavulavu or the Housing Committee about this direction to vacate the house. To maintain my independence, I passed the letter to the Lord Chancellor," the Chief Justice stated. “The matter was resolved by him....I understand that my occupancy of the house is secure.”

“There is presently no other dispute between me and the committee or him."

“There is no logical connection between the events that Mr Lavulavu describes and the allegation that I am not impartial,” said the Chief Justice.

He added that “the suggestion that the Housing Committee may take action against me to receive debts owing by the former Chief Justice is both fanciful and mischievous”.

The CJ also stated that “The decisions I have made against Mr Lavulavu are not evidence of bias but a reflection of the fact that the applications lacked merit.”

He said the allegation of lack of impartiality was only raised after Lavulavu failed to get the first petitioner's consent to an adjournment, said the CJ.

He pointed out that considerable amount of time and expenses had been devoted towards arranging this trial and in these circumstances Lavulavu had waived any entitlement to object to the Chief Justice hearing this petition.

The application that the Chief Justice recuse himself was dismissed.

Application for adjournment

Lavulavu also applied for the trial to be adjourned so that he could seek legal representation.

Lavulavu’s counsel 'Ofa Pouono had beforehand filed his intention to withdraw as his lawyer. Pouono, who has been the local agent for New Zealand barrister, Nalesoni Tupou, said he could not continue to act for Lavulavu because there was a conflict between his advice and the instructions he received from Lavulavu.

He also said Lavulavu had alleged that he was taking sides with opposing counsel William Clive Edwards and as a result had no trust and confidence in him. Lavulavu collected his file from Pouono on 11 November.

Lavulavu then asked for adjournment to find a new lawyer after he terminated Tupou who he felt was too busy to handle his case.

 The Chief Justice found that there was nothing on the court file to show that Mr Tupou had withdrawn as his counsel or that he was not able to represent him at the trial. 

Lavulavu then argued that he is not a lawyer and he will be prejudiced if he has to present his own case against an experienced lawyer, said the CJ.

“I accept there may be some disadvantage to him if he is not represented by counsel but he makes too much of this. Mr Lavulavu has proven himself a skilled advocate in his own cause on occasions he has appeared before me,” he said.

Lavulavu then asked for the trial to be adjourned because of his outstanding appeals.

"The appeals are weak as demonstrated by the fact that leave to appeal has already been refused in both cases, they raise not important issues. Lavulavu will not be prejudiced in his defence of the petition if they are not heard before the trial."

Fair election

The Chief Justice said in democratic electoral systems throughout the world it is recognized that judicial challenges to an election result must be expedited.

"Free and fair elections are the cornerstone of democracy and public confidence in the electoral system will be eroded if there not be certainty that those in power were fairly elected. In the absence of rules for the conduct of electoral petitions this court must fashion practices to ensure the just but efficient and speedy hearing of an electoral petition and to discourage frivolous applications which have been the intention or effect of delaying the hearing."

He said the public interest in the maintenance of confidence in the electoral system may on occasion transcend the interests of individual litigants.

“Mr Edwards submitted that any further delay in the hearing of this petition is unfair and unacceptable to the people of Tonga. I agree with that assessment,” he said.

The Chief Justice then ruled for Lavulavu’s applications be dismissed and the first petitioner is entitled to costs, which are to be fixed by the Registrar if not agreed.