By Linny Folau

In the Supreme Court of Tonga, Civil Jurisdiction, Mr Justice Cooper ruled to continue an Interim Injunction in favour of the plaintiff, the Secretary for Foreign Affairs, in an ongoing court battle over control of the Kingdom's foreign affairs, that will lead to a judicial review hearing in September.

Tonga's Public Service Commission are restrained from proceeding to advertise and recruit a Chief Executive Officer of the Ministry of Foreign Affairs; and the appointment of Paula Ma'u, Acting CEO of Foreign Affairs, is suspended, he ruled on 12 July.

When the interim injunction was first granted in April, it threw light on the underlying tensions between King Tupou VI, the Prime Minister and the Foreign Affairs Minister, that had escalated over the control of the Kingdom's international diplomacy since the Public Service Commission appointed Paula Ma'u (the Government's Chief Secretary and Secretary to Cabinet) as Acting CEO of Foreign Affairs in October last year.

The tension now playing out in the civil court reveals the extent of the discord between the parties on various issues related to foreign affairs.

The plaintiff, the Secretary for Foreign Affairs (currently Viliami Malolo), is taking action against the three Defendants: the Public Service Commission, the Minister of Foreign Affairs and Paula Ma'u (the Acting CEO for the Ministry of Foreign Affairs).

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

Background

The judge stated: For the sake of clarity, I repeat some of the background to the granting of the interim relief on 12 April 2024:

• On 19 February 2024, a Statement of Claim was filed on behalf of the Plaintiff applying ex parte for leave to commence judicial review proceedings (the Application for Leave) and an interim injunction (the Injunction). 

• The Application for Leave related to the claim that the First Defendant, the Public Services Commission (PSC) had in their decision of 20 October 2023, acted ultra vires in creating the position of Chief Executive Officer (CEO)to the Ministry of Foreign Affairs (the Ministry) and recruiting a Chief Executive Officer to that role. 

• Further, it was alleged that the Second Defendant, the Minister had acted ultra vires in appointing an Acting Chief Executive Officer (Acting CEO) to that role. 

• The decisions and actions of the Third Defendant, in purportedly filling the role of Acting CEO, were also allegedly ultra vires. 

• On 16 February 2024 Acting Chief Justice Tupou KC granted leave to commence the judicial review in the terms applied for. 
Her Honour also granted an ex parte interim injunction restraining the Defendants from taking any steps to advertise the post and also suspended Mau's appointment as Acting CEO of Foreign Affairs.

Mr Justice Cooper stated that the trial of the judicial review was listed as a substantive hearing on 10 June 2024, but because the court no longer had the capacity to then hear the case, it was listed for trial on 30 September 2024.

Because of the delay in hearing the matter, the defendants’ counsel Dr Harrison asked the court to review the interim injunction. This was heard on 20 June. The defendants effectively argued that, since the injunction was granted, there had been “major developments” in the Ministry, which had caused disruption to a core body of Tongan Government so as to destabilise it.

The application by the defendants was directed at the second order of the interim relief, that the prohibition upon Paula Ma’u taking up the role of Acting CEO be lifted.

The details filed on 11 June 2024 on behalf of the defendants. Opposing the continued interim injunction, were:

• The affidavit of Ms.Telesia Kaitapu, Head of the Immigration Division of the Ministry of Foreign Affairs; Mau’s affidavit; and submissions of Dr. Harrison KC.
• For the other side, the affidavit of Ms. Toakase Palelei, and the affidavit of Viliami Malolo, with supporting argument of Counsel, Mrs Stephenson KC.

Ruling

In his written ruling on 12 July, Justice Cooper stated that a key consideration in granting the interim injunction in April 2024 was that diplomatic engagement with the Kingdom of Tonga would be allowed to follow a pattern, already established over a number of years. On the materials before him, the judge was persuaded that the balance of convenience lies in maintaining the injunction and gave reasons for it.

The question was: “Does the overall justice of the case favour the continuation of the injunction? 

“This question has societal dimensions. I am quite sure to maintain channels of diplomatic engagement and hierarchy in a Ministry, which have been in place for some years and are so recognised at home and abroad, at this stage, are essential.”

Constitution

The judge stated that in his oral submissions, Dr. Harrison KC did not meet head-on with and argue against the points made in the plaintiff's submissions.

These included the fact and nature of His Majesty’s prerogative power...pursuant to clause 39 of the Constitution 


“When analysing what the scope of the issues are, I conclude each revolves around complicated arguments of fact and law.

“ That the issue of the contract, in the defendants’ submissions is argued over 4 pages and involves consideration of the Palelei case, the Constitution, the extent of contractual obligations and is intertwined with His Majesty’s powers, I conclude demonstrate how the arguments are both nuanced, need careful analysis, argument and presentation,” he stated.

“Further, that they have the potential to have effects through the Kingdom, right to the heart of His Majesty’s role. 

“Which way they will be decided, is not the question before me at this stage. That whether there is a serious question to be tried is what I must address,”

“It is not [my] role to decide difficult questions of law that call for detailed argument and mature considerations. I form the view these questions will need that level of scrutiny to be answered. 

“Addressing those questions requires interpreting one of the fundamental roles at the heart of Tonga’s Constitutional Monarchy; in a Kingdom perhaps like no other country,

“I am quite sure there are serious questions to be tried,” stated Justice Cooper.

At the same time, damages may not be an adequate remedy given the issues involve governance both within the Kingdom and diplomatic relations and engagement between the Kingdom and other nations, he said.

Continuation of the injunction?

The judge stated that the defendants have effectively argued that, since the injunction was granted, there have been “major developments” in the Ministry. Those have caused disruption to a core body of Tongan Government so as to de-stabilise it. For example:

• The non-payment of over-time 
• Ms Kaitapu not being allowed to ask questions in the interviews for new staff
• The passport machine breaking down

“Further, as Paula Ma’u deposed; summarising some of his critique:

• The failure to provide guidance to Government by the plaintiff
• That foreign Diplomatic Missions having to work directly with Heads of Ministries, a way his of expressing that there is not joined-up Government under (Secretary of Foreign Affairs).
•  Or, that the plaintiff has frustrated the correspondence from overseas counterparts. That in so doing it destabilizes key Pacific Communities. Those groups are important to and have been long nurtured in Tonga’s on-going development and standing amongst its peers.

The judge firstly noted that Paula Ma’u’s affidavit was not accompanied by any annexes that support his claims. Secondly, the concerns raised in Ms. Kaitapu’s affidavit are, prima facie, comprehensively dealt with in the responses of both the affidavits for the plaintiff, he stated.

“I pause to note, Ms. Kaitapu’s allegation she was ‘only invited to sit in and observe the interview process’ of candidates for roles in the Immigration Division, which she is Head of; she made reference to in her annex D; an email to her on the subject of “MFA Recruitment - Wednesday 15 May 2024”. 

“What the email in fact stated was ‘…you may attend the interview to observe and if you have any questions, that it (sic) may be collaborated amongst the panel members and yourself before each interview commences, that is if you will attend.’

“That appears to me to be different from the complexion Ms. Kaitapu chose put on the arrangement, in her sworn affidavit, he stated.

Falemaka Project

The claims concerning the Falemaka project, the judge stated that on the face of it, are troubling. There was the report commissioned on the status of the project.

“Prima Facie, the plaintiff has brought the project under control, saved substantial amounts of money and in so doing, negotiated a difficult situation to a successful outcome; all the while with the interests of the Kingdom at heart. There was no argument put before me to suggest his claims were misguided or wrong. What the plaintiff deposed concerning the passport machine issues, equally appear reasonable and that he acted swiftly and professionally, in fact in keeping with proper management of the situation; that was not argued against either,” he stated.

Maintain diplomatic engagement

The judge stated that in granting the injunction in April 2024; that diplomatic engagement with the Kingdom of Tonga would be allowed to follow a pattern, already established over a number of years. That has not been challenged in the application to maintain/discharge the injunction.

Instead the “new developments” were pleaded in opposition. The argument being they have shifted the balance of convenience.

“On the material before me, I am persuaded the balance of convenience lies in maintaining the injunction, for the reasons set out above.

“I grant and so maintain the injunction, in the terms of the 12 April 2024. In addition, by consent, the discovered documents the plaintiff seeks to rely on will be made available at trial, their admissibility to be ruled upon. Costs are reserved to the conclusion of the case,” ruled the judge.

See also:

Judge restrains PSC and suspends appointment of Ma'u in challenge over control of Tonga's Foreign Affairs [2]