By Linny Folau

A Supreme Court ruling has restrained Tonga's Public Service Commission from advertising or recruiting a Chief Executive Officer of the Ministry of Foreign Affairs, while suspending the appointment of Paula Ma’u as its Acting Chief Executive Officer.

Justice Cooper in an order on 12 April granted a Civil application for interim relief in favour of the plaintiff, the Secretary for Foreign Affairs (currently Viliami Malolo), against three defendants: the Public Service Commission, the Minister of Foreign Affairs and Paula Ma’u in his capacity as the Acting CEO for the Ministry of Foreign Affairs.

"The dispute at this level of Government, between Foreign Secretary and Ministry of Foreign Affairs, by its nature is pressing; it’s potential to be damaging both domestically and internationally axiomatic," the judge stated in his ruling released today, 15 April.

His 14-page document reveals the reasons for the ruling. It throws light on the underlying tensions between King Tupou VI and the Prime Minister and former Foreign Affairs Minister, that has escalated over the control of the Kingdom's international diplomacy since the PSC appointed Ma'u (the government's Chief Secretary and Secretary to Cabinet) to a newly created post of Acting CEO of Foreign Affairs in October last year.

The Plaintiff is claiming that the appointment: “usurps and impinges upon His Majesty’s prerogative to appoint a diplomatic officer, pursuant to the Constitution,” among other causes for the legal action.

“The new appointment of an Acting CEO may well have the potential to undermine the years-long established arrangements for diplomatic engagement. ”

Serious matter for Privy Council

The judge considered that the matter was felt to be so serious, at a domestic level, the Privy Council issued a Memorandum, that spoke to the need for the Foreign Secretary to consider “timely” legal action “forthwith”.

“That in appointing an Acting CEO, the status quo has recently been disrupted.”

“The new appointment of an Acting CEO may well have the potential to undermine the years-long established arrangements for diplomatic engagement. ”

Justice Cooper said both sides put forward compelling arguments

After hearing the facts of the case, he concluded both that the applicant had demonstrated a real prospect of success and the possibility of harm to the Foreign Secretary in his appointment and role.

“I have considered how that potential harm may resonate across international relationships the Kingdom of Tonga strives towards.

“Drawing these strands together and exercising my discretion based on the particular facts of this case as set out, I form the view that the Court should grant the application interim relief.”

Justice Cooper ordered that until further order of the court:

1. the First Defendant, its servants or agents, are restrained from proceeding to advertise and recruit a Chief Executive Officer of the Ministry of Foreign Affairs; and
2. the Third Defendant’s appointment as Acting Chief Executive Officer of the Ministry of Foreign Affairs is suspended.

Plaintiff's Statement of claim

The background was that on 19 February 2024, a Statement of Claim was filed by the plaintiff applying ex parte for leave for leave to start of judicial review proceedings (the Application for Leave) and interim injunction.

• The application related to the claim that the first defendant, the Public Service Commission (PSC) had in a decision of 20 October 2023 acted ultra vires in creating the position of Chief Executive Officer to the Ministry of Foreign Affairs and in recruiting a Chief Executive Officer to that role.
• That the second defendant, the Minister of Foreign Affairs had acted ultra vires in appointing an Acting CEO to that role and the decisions and actions of the third defendant, Paula Ma’u in purportedly filling the role of Acting CEO were allegedly ultra vires.

“On 16 February, the Acting Chief Justice Tupou granted leave to start the judicial review in the terms applied for. Also granted was an ex parte interim injunction restraining the defendants from taking any steps as described in this ruling, until 4:00pm 25 March 2024. Further, a timetable was set for service for filing of any opposition to interlocutory injunction with accompanying affidavits and submissions.”

“Usurps King's prerogative”

The Secretary of Foreign Affairs, Viliami Malolo was appointed by King Tupou VI.

The Statement of Claim filed by the Secretary of Foreign Affairs listed five causes:

•    firstly that in; section 13(1) the Public Services Act requires a Ministry in schedule I of the Act to have a CEO appointed by the PSC. Schedule II lists those people the Act does not apply to and includes the Secretary for Foreign Affairs (SECFO) and section 27 of the Act provides that the provisions of the Act are subject to the Constitution, while Clause 39 of the Constitution empowers the King to appoint his “representatives to other nations according to the custom of other nations.” The SECFO was appointed by the King to a role that encompassed diplomatic functions and to appoint a CEO would impinge on the role of SECFO and therefore impede His Majesty’s prerogative right pursuant to the Constitution, and so is ultra vires.

• The second cause of action was because the plaintiff’s duties encompass those of a CEO appointing a CEO duplicates the functions catered for by the appointment of SECFO; so is ultra vires.
• Thirdly, appointing an Acting CEO likewise duplicates tasks and functions already allocated to, and undertaken by, SECFO and is therefore ultra vires; there being no vacancy that needed filling
• Its fourth cause argued that appointing an acting CEO, who in turn has functions that include diplomatic duties, usurps and impinges upon His Majesty’s prerogative to appoint a diplomatic officer, pursuant to the Constitution, so is ultra vires and
• The fifth cause was that the appointment of the Acting CEO is unlawful and so his functions can have no legal effect.

Defendants’ points of defence

In response, the defendants made two preliminary points by way of defence and set out their arguments why the test for the imposing an injunction must fail. This included a claim that there was no urgency that allowed the plaintiff to make an application for an ex parte injunction, a basic requirement as set out Order 11, Rule of the Supreme Court Rules, among other submissions.

The judge stated that the essence of the submissions could, perhaps, be summed up in that it is claimed:

• firstly, the contract that SECFO is employed by is unlawful. Therefore, he has no right to the duties of SECFO and so his claims fall away in toto because Lord Dalgety KC signed off on the contract and had no power to so do pursuant to Privy Council resolution 28 November 2011, paragraph 2 as was claimed.
• Secondly the purported appointment of SECFO does not confer diplomatic functions upon him as Clause 39 is limited to appointments made in respect of “representatives to other nations according to the custom of nations”. That is a clear reference to diplomatic posting overseas.
• Thirdly, the invalidity of the contact between the Kingdom and SECFO is one strand of the inability of the plaintiff to bring this action, even so, it could not confer him with the authority, or roles, of CEO of the Ministry. Further, the contract if valid (which is denied) could not ‘trump’ the provisions of the Public Services Act, so as to replace the statutory imperative for the appointment of a CEO.
• It is also argued that the plaintiff’s claims are of such a general nature that damages could not be said to attach to them.

“The Court’s role, at this stage, is not to resolve conflicts in the evidence on affidavit.”

Justice of the Case

The judge noted details of the Affidavits that had been filed in support of both parties.

“The Court’s role, at this stage, is not to resolve conflicts in the evidence on affidavit”, he stated.

Diplomatic functions affected

Meanwhile, the judge stated at the heart to the plaintiff’s claim is that diplomatic functions between other nations and the Kingdom of Tonga are not operating as they should.

“This is underlined by the 2017 advice of Mr. ‘Aminiasi Kefu that paved the way for SECFO to have a legitimate expectation he would hold a position that equates to CEO of the Ministry of Foreign Affairs.

“The Privy Council Memorandum 125/2023 speaks of “timely legal remedies, including Court proceedings, be considered forthwith to clarify the correct position”. Thus it is posited, a clear need for swift action by the plaintiff.”

There are competing arguments set out in support and opposition.

The hearing, 25 March 2024, was inter parte. The position in relation to the Palelei decision was clear when the hearing commenced and the parties expanded upon their competing arguments.

The Court is making an assessment on the basis of the test both sides acknowledge apply, as set out fully in the defendants’ arguments and most succinctly in their paragraph 3 submissions, filed 8 March 2024:

1. Is there a serious question to be tried?
2. Does the Balance of convenience favour the granting of the injunction?
3. Does the overall justice of the case favour the granting of the injunction?

Effectively this is a de novo hearing, the judge stated.

“It is inherent in the plaintiff’s application the need for swift, so urgent action, or why else the Privy Council’s memorandum 125/2023 in the terms stated?

“Moreover, the dispute at this level of Government, between Foreign Secretary and Ministry of Foreign Affairs, by its nature is pressing; its potential to be damaging both domestically and internationally axiomatic.”

Claims and counter claims

Regarding the claims and counter claims, “both sides know exactly the cases law and material that apply and needs be concentrated upon,” he stated.

“The reality is that the plaintiffs, at this stage, need to persuade me of the need for an injunction to continue, just as if there were none in place at the moment. Accordingly, I am quite sure I can turn aside from that discrete argument and focus on the tests and the substance of the application at hand,” the judge stated.

Serious question to be tried

“I conclude there is a real prospect of success. The 2017 advice, its affirmation by the current Attorney General and the Budget documents all point to strong prima facie case; SECFO’s role could encompass that of CEO, why else was there no CEO hitherto.

“The question of the validity of the Secretary for Foreign Affairs contract has never been raised before by the defendants.”

The statement of Mr. Sisifa to the Court in Palelei that the Secretary for Foreign Affairs “is the person in putative charge of the administration of the Ministry, must also have some significance," stated the judge.

The judge in considering overarching considerations of societal and legal stability, noted the plaintiff’s action essentially is to revert to the arrangements that have been in place for some years. By its nature, that means following what has become an established practice in the Kingdom in so far as the role of SECFO.

“At this stage, allowing that to continue seems to me to maintain constancy by reverting to the established order. In assessing these factors, I conclude there is a real possibility of harm to the Secretary of Foreign Affairs in his role and standing, so as to damage him professionally if the injunction is not granted.”

He stated that any question of the weight to be attached to the adequacy of an award of damages is a factor that may be overshadowed by the rights of third parties and the need for societal stability.

Costs were reserved to the conclusion of the case.

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See also:

No reason for Cabinet resignations but PM reveals Foreign Affairs admin is being sued by Lord Privy Seal [2]

PM announces resignation of two Cabinet ministers [3]

Tonga’s foreign policy requires King’s approval [4]