Tonga's Chief Justice has refused an application by a former Prime Minister Lord Sevele and a former Minister of Transport Paul Karalus, for a judicial review of a report of a special parliamentary committee, because he did not find that the Supreme Court had any jurisdiction to review the internal proceedings of the Legislative Assembly of Tonga.

The applicants were claiming that their reputations were damaged by a report of the parliamentary committee that investigated how a multi-million pa'anga loan from China was spent on the reconstruction of Nuku'alofa.

Chief Justice Hon. Michael Scott said in his judgment dated May 14, that since the only evidence before him was from the applicants, "I do not know whether an enquiry would reveal that the applicants have in fact been unfairly and unjustly treated.

"If in fact they have been then that is a cause of regret and something which the House may well wish to put it right. In my judgment, however, it is not a matter for the Supreme Court," he stated in refusing the application.

In the decision, Chief Justice Scott stated that as far as the proceedings of Parliament (and its committees) are concerned his opinion is that an alleged breach of the rules of natural justice which does not directly result in a breach of a discrete provision of the constitution does not afford a jurisdictional basis upon which the Supreme Court can intervene.

Breach

The Chief Justice referred to clear statements of the law in Tonga and said it seemed that only two questions arise. "Are the applicants asking the court to enquire into the validity of the Assembly's internal proceedings; and is a breach of the Constitution alleged?"

He believed that before any of the orders sought could be granted there would have to be an investigation into the way in which the parliamentary committee and its members were appointed and a further investigation to determine whether in fact, as claimed, the committee's terms of reference were exceeded. These investigations would involve consideration of the effects of Rules 159 (2), 169, 170 and Rule 3.

"In my view an enquiry plainly would amount to an enquiry into the Assembly's internal proceedings. Unless a breach of the Constitution is alleged such an enquiry is beyond the jurisdiction of the Court", he said.

Application

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

They claimed that the report infringed natural justice, the Constitution and the Rules and Procedures of Parliament and applied for the court to quash the report. They also claimed that the committee was invalidly constituted.

The Parliamentary Committee was established on 26 July 2011 to review "all the works that have been carried out" by the Nuku'alofa Development Corporation, a Cabinet Sub-Committee established in 2008 following the Nuku'alofa riots in November 2006.

The six members of the parliamentary committee who were respondents in this case were Tongatapu People's Representatives 'Akilisi Pohiva and Sitiveni Halapua; and Lord Tu'i'afitu, Lord Lasike, the Auditor General Pohiva Tu'i'onetoa and Posesi Bloomfield an independent lawyer.

Petunia Tupou represented the applicants and 'Aminiasi Kefu acted for the respondents, at the Supreme Court in Nuku'alofa.