Two landmark Court of Appeal decisions in favour of the Lord Speaker & Legislative Assembly reaffirms parliamentary privilege and the doctrine of separation of powers

On Tuesday, 28 May 2024, the Court of Appeal of Tonga delivered two decisive judgments finding firmly in favor of the Lord Speaker Fakafanua and the Legislative Assembly of Tonga. The cases, AC 16 of 2023 (Speaker of the Legislative Assembly of Tonga and the Legislative Assembly of Tonga v. Mateni Tapueluelu) and AC 1 of 2024 (Dr. ‘Uhilamoelangi Fasi & ors v. Speaker of the Legislative Assembly and the Legislative Assembly of Tonga), asserts the Assembly's supremacy, while reaffirming the doctrine of separation of powers.

In AC 16 of 2023, the Lord Speaker and the Legislative Assembly appealed against a Supreme Court judgment by Whitten LCJ, wherein Mateni Tapueluelu sought judicial review of resolutions concerning salary reviews for Members and staff of the Assembly. Tapueluelu alleged that the resolutions, passed by circular, breached the Rules and Clause 62(2) of the Constitution. The Court of Appeal, however, found no constitutional breach, affirming the Assembly's authority under Clause 62(1) to establish its own rules. It also acknowledged the empowerment of Members under Clause 62(2) to move motions, which must be handled per the Rules. The Court of Appeal accepted the Lord Speaker and the Legislative Assembly’s arguments that the Speaker has extensive authority to interpret and apply these Rules; and such decisions are final. The Court further observed that Tapueluelu, and any other member, had the right to move a motion for these circulars to be debated within the Assembly, yet did not do so.

In AC 1 of 2024, Dr. Fasi and others (Mateni Tapueluelu, Dr. ‘Aisake Valu Eke, Paula Piveni Piukala, Kapelieli Lanumata, Dr. Taniela Liku’ohihifo Fusimalohi, and Mo’ale Finau) appealed a Supreme Court judgment by Cooper J, claiming they were unjustly denied the right to debate a motion for a vote of no confidence in the Prime Minister
Hu’akavameiliku, allegedly breaching Clause 62(2) of the Constitution and Rule 84F of the Rules of Procedure. The Court of Appeal reaffirmed that it is precluded from reviewing the internal proceedings of the Assembly unless there is a constitutional violation – and there was no constitutional breach in this case. The Court highlighted the Speaker’s legitimate authority to interpret and apply the rules, including the right to allow a motion by the Prime Minister under Clause 62(2) and Rule 81 to discontinue the debates on the motion for a vote of no confidence. The Court further recognized the Legislative Assembly’s unlimited powers to suspend its rules either in whole or in part as a powerful recognition that the Constitution and the Rules, together, enable the Assembly to govern its processes. It recognized that, through a majority vote, the Assembly had decided to suspend the rules regarding debate.

These Court of Appeal rulings are a resounding affirmation of parliamentary autonomy, the separation of powers, and parliamentary privilege. The Court recognized the necessity of preserving the Legislative Assembly's independence, cautioning against judicial interference in matters that the Assembly is constitutionally equipped to manage. These decisions also mark a significant affirmation of the Speaker and the Assembly’s powers to govern its own internal proceedings. The Court stressed that only in compelling circumstances would judicial review of the Assembly’s internal proceedings be warranted.

The Court has ordered Mateni Tapueluelu, Dr. Fasi, and others to bear the costs of these hearings. It should be noted that before the AC 1 of 2024 hearing, appellants Paula Piveni Piukala, Kapelieli Lanumata, and Mo’ale Finau withdrew as parties to this appeal. However, the Court of Appeal ruled they remain responsible for costs payable in the Supreme Court, where Cooper CJ had ruled in favor of the Speaker and the Legislative Assembly.

The Lord Speaker Fakafanua and the Legislative Assembly were represented in these legal proceedings by David Laurenson K.C (New Zealand) and Dana Stephenson K.C.

Issued by the Chief Clerk of the Legislative Assembly
29 May 2024
Office of the Legislative Assembly, Nuku’alofa, Tonga


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