The Tonga Appeal Court, in allowing an appeal by the Speaker to stop a judicial review of parliamentary procedure, recommended that the Rules of Procedure of the Tonga Legislative Assembly be amended if the practice of the use of circulars to pass substantial expenditures was to continue.

Appeal Judges Randerson, Harrison and de Jersey in a judgment on 28 May in Nuku'alofa found that clause 62(2) of the Constitution was not breached and allowed the appeal by the Speaker, and the Legislative Assembly (the Appellants) against the Respondent, Mateni Tapueluelu, MP.

A People's Representative, Tapueluelu, challenged the legality of a $6.7 million payout for the Assembly's pay rises and a Cost of Living adjustment for civil servants in 2018 that was passed by circular. He was concerned that the approval of huge expenditure for a pay rise ought to have been debated in the house but it was not.

Tapueluelu was initially granted leave by the former Chief Justice Whitten KC, to bring judicial review proceedings in the Supreme Court challenging the validity of two resolutions of the Legislative Assembly. 

However, the Appeal Court in this case, overturned the leave to bring judicial review.

Passed by way of circulars

The Appeal Court stated that the parliamentary resolutions were passed in 2018 and a decision to implement them was made on 14 June 2022 to the effect that it granted Members and staff of the Legislative Assembly, a pay rise of 14%, backdated to 2018. 

“As a consequence of the resolutions and the later decision, the 2022/2023 Appropriation Act (the Act) included an additional $6.7 million pa’anga for the Assembly’s pay rises and for a cost of living adjustment for civil servants. We were told that the great bulk of the total sum was for the cost of living adjustment and that the total sum has been paid. The respondent has declined to accept the pay rise at issue.

“In essence, the respondent contended that the 2018 resolutions of the Assembly were passed by way of circulars in breach of the Rules of Procedure (Rules) of the Assembly and clause 62 of the Constitution of the Kingdom of Tonga. It is argued that there is no provision in the Rules for the use of circulars and the resolutions should have been put formally before the Assembly by way of a motion by a Member that could be debated. In consequence, the respondent contends that the resolutions were unlawful and of no legal effect. He does not seek to impugn the validity of the Act.”

The Appeal Court stated that the appellants (The Speaker) earlier applied for a declaration that the Supreme Court had no jurisdiction in respect of the respondent’s claim. They contended that the Court had no jurisdiction to inquire into the internal proceedings of the Assembly and that, to do so, would breach common law privileges of the Assembly.

In an initial ruling delivered on 24 August 2023, the former Lord Chief Justice Whitten KC refused the appellants’ (the Speaker's) challenge to jurisdiction; granted the respondent (Taueluelu) leave to proceed; and required the appellants to file a Statement of Defence by 22 September 2023. The appellants then filed an appeal against this ruling and sought a stay of execution of the proceedings in the Supreme Court pending the final determination of their appeal. A stay was granted by Justice Randerson.

Constitutional importance

“...both parties seek a ruling and we are satisfied that it is appropriate in this case to determine the issues raised by the appeal given the constitutional importance in the Kingdom of Tonga in determining the validity of the practice of the use of circulars in the Assembly," stated the Appeal Court judges.

The resolutions stemmed from a report from the Privileges Committee No. ½018. 22 March 2018: Parliament Resolution No. 58-A/2018,  distributed to Members of the Assembly by way of a circular to secure the votes of Members on it

The Appeal Court also stated that although they recognised the clear risk of being drawn into matters that are ordinarily the province of the Assembly, they considered this appeal was capable of final determination by interpretation of the Constitution and the Rules on the basis of the largely undisputed affidavit material before the Court. 

"We agree with the Court below that clause 62 is clear in its terms but we disagree with the conclusion reached. Clause 62(1) is a mandatory requirement that the Assembly must make its own rules of procedure for the conduct of its meetings. The Rules of Procedure have been made in exercise of that requirement. 

“The circulars did not propose any matter for debate in the Assembly and were not prepared by a Member. Rather, they were provided to Members by the Chief Clerk under the supervision of the Speaker. The first circular was signed by the Speaker and the second by the Acting Speaker, clearly demonstrating their approval of the practice of using circulars in this way,” the Appeal Court stated.

At the same time, the Appeal Court ruled that the Constitution does not provide the Standing Committees and other administrative machinery and procedures necessary to enable the Assembly to undertake its work in an effective manner. Provision for matters such as this is enabled by clause 62(1) so long as any rules are not inconsistent with the Constitution. 

"The Speaker enjoys wide powers under Rule 1(2) to rule on any question arising as to the interpretation or application of the rules including cases not provided for. This rule requires the Speaker to be guided by previous rulings and 'established practices' of the Assembly and his decision shall be final.”

Broad powers

The Appeal Court noted the flexibility the Assembly had seen fit to adopt in the exercise of its broad powers to govern its own procedures under clause 62(1) of the Constitution.

"In summary, we have concluded for the reasons given that it has not been shown on the interpretation and application of the Rules of Procedure that there has been any breach of clause 62 (2) as alleged.

“Even if a breach of the Rules had been established, there is no justifiable basis for the intervention of the Court. That is because the Assembly is given wide powers under clause 62(1) to make its own Rules for the conduct of its business and the Speaker has been given the primary role of interpreting and applying the Rules whenever any question arises. His decisions are final and it is not for the Courts to function as a form of review, especially when the Speaker is uniquely well placed with his knowledge of past rulings and practices which all have their part to play in the effective management of the work of the Assembly,” stated the Appeal Court.

The Appeal judges also noted that given the constitutional importance of Parliamentary supremacy and the doctrine of the separation of powers, they were satisfied that leave to bring judicial review proceedings in this context should only be given where a compelling case is established to warrant the grant, so to do otherwise would tend to undermine the wide powers for the Assembly to govern its own procedures under the supervision of the Speaker as well as the rationale for Parliamentary privilege.

Debate not pursued

“We understand the concerns of the respondent that the approval of expenditure at the very substantial levels involved in this case ought to have been debated in the Assembly. However, the opportunity under clause 62(2) to propose a motion for such a debate was available but not pursued. 

“Importantly, clause 19 of the Constitution provides that expenditure of public money must be authorised by the prior vote of the Assembly or by legislation. The latter occurred in this case with the passage of the Appropriation Act.

“We are satisfied that clause 62(2) of the Constitution was not breached in this case for the reasons given. It follows that the application to dismiss the respondent’s proceeding on the ground that the Court has no jurisdiction by virtue of Parliamentary privilege must succeed. 

“We observe however that if the practice of the use of circulars as described is to continue, it is obviously desirable that the Rules of Procedure be amended to authorise them and the circumstances in which they may be invoked.”

The Speaker's appeal was then allowed.

Counsel for the appellants were Mr D. Laurenson KC and Mrs D. Stephenson KC.

The Respondent was represented by Mrs F. Fa

'anunu and Ms F. Afu.

Second Legislative Appeal dismissed

Meanwhile, an appeal by Dr ‘Uhila Fasi (MP) and others against Speaker of the Legislative Assembly and the Legislative Assembly was dismissed by the Appeal Court.

"This appeal is the second of two challenges heard in this sitting in respect of proceedings in the Legislative Assembly of Tonga. The appeal raises similar issues to those in the first appeal. This Court is issuing a contemporaneous judgment in the first appeal, which should be read together with the judgment in this appeal."
The appellants were Members of the Legislative Assembly who sought to challenge the validity of processes in the Assembly relating to a motion for a vote of no confidence (VONC) in the Prime Minister. They appealed against the judgment of Justice Cooper, who dismissed the appellant’s application for judicial review on 8 January 2024. In that judgment, Cooper J accepted a submission by the respondent that the Court had no jurisdiction to hear the application for judicial review by virtue of the doctrine of Parliamentary privilege.