C. R. Pidgeon QC and Lord Sevele

Tonga's Chief Justice Hon. Michael Scott is to decide whether the Supreme Court has the jurisdiction to review the internal proceedings of the Legislative Assembly of Tonga.

Tonga's former Prime Minister Lord Sevele and Paul Karalus, a former Minister of Transport, who are claiming that their reputations were damaged by the Report of a Parliamentary Select Committee, have applied for the judicial review.

Representations were made yesterday, April 4, during a half-day hearing on their application for a Judicial Review on the Report of a Parliamentary Select Committee that investigated how a multi-million pa'anga loan from China was spent on the reconstruction of Nuku'alofa.

Lord Sevele and Paul Karalus in their application, claim that the committee departed from the Terms of Reference that was given by parliament, and engaged in unwarranted criticism of the previous Government's actions, and that the committee in calling for a criminal investigation and prosecution had seriously damaged their reputations.

They claim that the report infringed natural justice, the Constitution and the Rules and Procedures of Parliament and are applying for the court to quash the report and declare that the committee had breached the natural justice of the plaintiffs.

Defendants

The six members of the parliamentary committee are defendants in this case. Yesterday only two, Lord Lasike and Posesi Bloomfield an independent lawyer, were present in court. Others, including two Tongatapu People's Representatives 'Akilisi Pohiva and Sitiveni Halapua, Lord Tu'i'afitu and Auditor General Pohiva Tu'i'onetoa, were absent.

The defendants were represented by the Attorney General Neil Adsett, assisted by the Clerk of the Legislative Assembly Gloria-Guttenbeil Pole'o.

The applicants Lord Sevele and Paul Karalus were represented by C. R. Pidgeon QC of New Zealand.

Breach of natural justice

C. R. Pidgeon submitted that their essential complaint was the failure of the respondents to give the applicants an opportunity to respond to the content of the report, which adversely affected their reputation and breached their natural justice.

He said they failed to warn the applicants of the adverse findings they were proposing to make and to give them an opportunity to respond to allegations, which included alleged misappropriation of funds.

The only significant matter raised was a claim from the defendants that the applicants would be unable to succeed in this action because of parliamentary privilege. The principle of the natural justice is fundamental under the Rule of Law, he said.

The Queen's Counsel did not accept that the findings of a parliamentary select committee cannot be challenged, especially if they breached the right of natural justice to respond to allegations that affected the reputation of the applicants.

"The defendants went beyond the jurisdiction given to them by the Legislative Assembly and went into areas in which we are seeking application on breach of natural justice. The courts are the only means of providing relief," he said.

He said the committee was not a valid appointed Select Committee as some defendants were not members of the Legislative Assembly and could not be protected by parliamentary privilege. It was not set up validly in the first place, as Rule 160 of the Procedure of the Legislative Assembly provided that select committees consist of such number of members directed by Legislative Assembly and in Rule 161 (1) be initiated by a motion.

Parliamentary privilege

The Attorney General in his submission for the defendants said the action was wholly misconceived and nothing in the cases and text provided said that the procedure of the Legislative Assembly was subject to revision by the court.

"It is a hopeless action which infringes the foundation of the structure of Government, the separation of powers and independence of parliament and if the court proceeds to this, Tonga would stand alone," he said.

He argued the application for a judicial review should not be granted on the grounds that the applicants had no arguable case because the court has no power to review the actions of a parliamentary committee. 

The internal proceedings of parliament are not subject to supervision or scrutiny by the courts and the privileges and immunities of the Legislative Assembly applies fully to the select committee, he said.

The Attorney General said the declaration by the applicants that the respondents were in breach of their terms of reference or did not comply with Rule 170 of the Rules of Procedure of the House, was a matter for parliament itself to decide, including the claim on breach of natural justice because the respondents failed to warn or give opportunity to the applicants to respond.

He said the Legislative Assembly had correctly formed the select committee and was careful in doing so.

It started off as a special committee and was converted into a select committee with two People's Representatives and two nobles appointed with two additional independent members that served the original role in regards to the Prime Minister's motion to set up the committee, he said.

The respondents are a Parliamentary Select Committee and privileges are same as those of parliament, he argued.

Review

The report of the Parliamentary Select Committee known as the Nuku'alofa Development Corporation (NDC) Report was debated in parliament for a month during September 2012. But in the end the House decided to pass the report onto another parliamentary select committee to further consider the Report and report back to the Legislative Assembly.

It is believed that the new Select Committee held its first meeting on 23 November 2012 focusing on developing its guidelines on how to address its Terms of Reference. The committee's next meeting was expected to be held on April 2, 2013.