The Court of Appeal has approved an appeal by the Speaker of Parliament and the Legislative assembly against MP Mateni Tapueluelu against two decisions of Parliament.
Tapueluelu was granted leave to bring proceedings for a judicial review in the Supreme Court challenging the validity of two resolutions of the Legislative Assembly which granted MPS and Parliamentary staff a 14% pay rise backdate to 2018.
The resolutions were passed in 2018 and a decision to implement them was made on 14 June 2022.
The 2022/2023 Appropriation Act included an additional TOP$6.7 million to cover the pay rises and for a cost of living adjustment for civil servants.
Tapueluelu declined to accept the pay rise at issue.
The Court of Appeal was told that the resolution approving the pay rise was passed by way of circulars in breach of the Rules of Procedure of the Assembly and Clause 62 of the Constitution.
It was argued that there was no provision in the Rules for the use of circulars and that the resolutions should have been put formally to Parliament via motion by an MP so they could be debated.
Tapueluelu argued that as a result the resolutions were unlawful and of no legal effect.
The Speaker and the Legislative Assembly applied for a declaration that the Supreme Court had no jurisdiction in respect of the MP’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.
It was further argued that Clause 90 of the Constitution permitted the Court to inquire into the internal proceedings of the Legislative Assembly only where the Constitution had been breached. It was also argued that Clause 62 of the Constitution had not been breached.
On August 24, 2024, the former Lord Chief Justice Whitten KC refused the challenge to the court’s jurisdiction. The judge granted the MP leave to proceed and required the Speaker to file a statement of defence by September 22, 2023.
The Speaker filed an appeal against the ruling and were granted a stay of execution of the proceedings in the Supreme Court pending the final determination of their appeal.
“In England, it is well established that the validity of an Act of Parliament is not open to challenge on the ground that its passage through the House was attended by any irregularity,” the Court of Appeal was told.
“This has been the case since at least the promulgation of Article 9 of the Bill of Rights 1689 which provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
“The principle that the courts do not intervene or adjudicate upon the internal proceedings of a Parliament is based on the supremacy of Parliament and consideration of comity between the legislature and the courts. Each is ordinarily expected to operate within their respective spheres.”
However, the Tongan Privy Council ruled that the Legislative Assembly did not have the privilege of supremacy over the courts enjoyed in the United Kingdom.
“It follows that in determining its jurisdiction to inquire into internal proceedings of the Assembly it must apply the English common law regarding the privilege of Parliament to determine the regularity of its own proceedings, provided of course the Assembly has not acted contrary to the provisions of the Constitution,” the Court of Appeal was told.
The Supreme Court had jurisdiction in all cases in law and equity arising under the Constitution and the laws of the Kingdom of Tonga.
There was no justifiable basis for the intervention of the Court. The Assembly was given wide powers under clause 62(1) to make its own rules for the conduct of its business and the Speaker had been given the primary role of interpreting and applying the Rules whenever any question arises. His decisions were final and it was not for the Courts to function as a form of review.
“Given the constitutional importance of Parliamentary supremacy and the doctrine of the separation of powers, we are 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,” the Court was told.
“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.
“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 court therefore approved the appeal.
