Tonga's Appeal Court has dismissed an appeal by Paula Piveni Piukala and another, on the dismissal of their application for judicial review against a decision by the Supervisor of Elections, in regards to Lord Nuku’s election as a Noble's Represenatative.

The appeal was by Fatai Helu and Piukala against the respondents, the Electoral Commission and Lord Nuku.

The Appeal Court in a judgment on 6 April in dismissing the appeal, stated that they agreed with the Lord Chief Justice's reasons when dismissing the application.

This was in regards to the election for the Legislative Assembly held on 16 November 2021, where Lord Nuku was elected as one of nine Nobles' Representatives. The respondents are associated with a political party known as PTOA or the Democratic Party.

The Court stated after, the election they sought to challenge Lord Nuku’s election on the ground that there was an outstanding judgment debt against him, which they contended would disqualify him from election by virtue of clause 65 of the Constitution.

The response of the Supervisor of Elections to the issue raised by the appellants was that clause 65 only applies to the election of ‘Representatives of the People’ and not to Nobles’ Representatives.

Apply for judicial review

On 17 August 2022, the appellants then filed an application for leave to apply for judicial review of the decision of the Supervisor of Elections.

In a ruling 29 August 2022, the Lord Chief Justice dismissed the application on a number of grounds including;

• the proposed proceedings were a collateral attack on the validity of Lord Nuku’s election thereby contravening s25 of the Electoral Act, which forbids an election to be questioned except by a petition under the Act
• The application raised a merely hypothetical question
• The appellants had no sufficent interest in bringing the applicaiton
• On the merits, there was no arguable case to support the appellants contentions. That was because, on its true construction, clause 65 is concerned only with the qualification of Representatives of the People and does not apply to Nobles’ Representatives.

The Appeal Court said, counsel had since informed the court through the Registry that the appellants no longer sought a declaration that the election of Lord Nuku is invalid.

[Rather, they seek only a declaration as to the effect of clause 65 of the Constitution.”

Dismissal

The Appeal Court stated they agreed with the Lord Chief Justice for the reasons he gave.

"His analysis of the text of clause 65 in the context of related provisions of the Constitution and other primary and secondary electoral legislation demonstrates that the disqualification ban in clause 65 relates only to the election of Peoples’ Representatives.

“Whether the ban should also apply to Nobles’ Representatives is a matter for the Legislative Assembly. We do not view clause 4 of the Constitution as overriding s 65 of the Constitution nor as bearing on its interpretation given the clear differentiation drawn between the electoral processes relating to Peoples’ Representatives and Nobles’ Representatives else where in the Constitution.

“We see no reason to differ from the conclusion reached by the Lord Chief Justice that the appellants have not demonstrated an arguable case such as to warrant the grant of leave to bring judicial review proceedings."

The appeal was then dismissed. The respondents are entitled to costs against the appellants to be agreed or fixed by the Registrar.