[1987] LRC (Const) 240

IN THE SUPREME COURT OF TONGA

SIALE

V

FOTOFILI AND OTHERS

Supreme Court: Martin, J.
9th January 1987

(1) Constitutional law - Separation of powers - Parliamentary privilege - Allowances paid to members of Legislative Assembly - Discretion vested in Assembly - Whether court can review exercise of discretion - Legislative Assembly Act (Cap. 4), section 17.

(2) Judicial precedent - Commonwealth decisions - Relevance in Tonga - Specific incorporation of English law in Tonga - Legislature created by statute.

The plaintiff, a citizen and taxpayer of Tonga, brought an action challenging the validity of allowances paid out of public funds to members of the Legislative Assembly in connection with fonos (meetings) held throughout Tonga to explain a new Act to the general public. Under section 17 of the Legislative Assembly Act (Cap. 4) the Assembly had the "power to make such provision [for allowances] as it thinks fit for the members during the session." The defendants, the Speaker and other members of the Assembly, sought to have the action struck out for want of jurisdiction in the court.

HELD: Parts of claim struck out.

(1) The court had a limited jurisdiction only in the matter raised by the plaintiff's claim and so parts of it had to be struck out, viz., those seeking to challenge the actions of the Speaker and Minister of Finance in their legislative capacities. (See p.246 post.) Since the Tongan legislation did not limit the authority of the House of Assembly to decide its own allowances, the court had no power to overrule the decision or to investigate the reasons for it. (See p.245 post.) The court could, however, review the application of the decision as it would a statute. Though it must accept the decision as binding authority, the court would investigate whether the allowances in fact paid to each member were calculated correctly in accordance with that decision. The actions of members claiming and receiving such allowances were not "internal proceedings" of the House and, as such, were not subject to parliamentary privilege, but were subject to investigation by the court. Bradlaugh v Gossett (1884) 12 QBD 276 applied. (See p.245 post.)

Per curiam: The court had no more right to interfere with the proper working of the Legislative Assembly than the Assembly had to interfere with the proper working of the court. (See p.245 post.)

(2) Commonwealth decisions on parliamentary privilege were not binding in Tonga, but of persuasive influence only. This was particularly so because Tonga had a statute specifically incorporating English law generally into its own law (sections 3 and 4 of the Civil Law Act (Cap. 14), set out at p.244 post.) However, on the present issue before the court, it was important to note that this general statutory provision was subject to any "other provision" in Tonga, which in this case existed in the form of the Constitution and Legislative Assembly Act. Unlike in England, the legislature was the creature of statute and its privileges were, therefore, limited to those expressly conferred, or necessarily implied, by the statutory provisions. (See p.244 post.)

Cases referred to in judgment:
Adegbenro v Akintola [1963] AC 614, [1963] 3 WLR 63, [1963] 3 All ER 544, PC
Armstrong v Budd (1969) NSWLR 71
Bradlaugh v Gossett (1884) 12 QBD 276
Bribery Commissioner v Ranasinghe [1965] AC 172, [1964] 2 WLR 1301, [1964] 2 All ER 785, PC
Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, [1972] 1 WLR 401, [1972] 1 All ER 378
Fenton v Hampton (1858) 11 Moo PC 347
Hinds and Others v R [1977] AC 195, [1976] 2 WLR 366, [1976] 1 All ER 353, PC
Keilly v Carson (1842) 4 Moo PC 63
Kenilorea v Attorney-General [1986] LRC (Const) 126
Liyanage v R [1967] AC 259, [1966] 2 WLR 682, [1966] 1 All ER 650, PC
Namoi Shire Council v Attorney-General for New South Wales (1980) NSWLR 639
Stockdale v Hansard (1839) 3 St Tr (NS) 849

Legislation referred to in judgment:
Civil Law Act (Cap. 14), sections 3 and 4
Constitution of Tonga, sections 30 and 56
Legislative Assembly Act (Cap. 4), section 17
Sales Tax Act 1986

Action
The plaintiff brought an action to challenge certain allowances paid out of public funds to members of the Legislative Assembly of Tonga. The defendants, the Speaker and other members of the Assembly, sought to have the action struck out for want of jurisdiction in the court. The facts are set out in the judgment.

Edwards for the defendants.

9th January 1987

MARTIN, J.:

Background

The background to this action is shortly stated. On 1st July 1986 the Sales Tax Act (No. 3 of 1986) came into force. Members of the Legislative Assembly thought that this should be explained to the general public. Fonos were held throughout the Kingdom. Various members attended and spoke about the new Act.

Certain allowances were paid to those members. The statutory authority for making such payments is section 17 of the Legislative Assembly Act (Cap. 4).

This action is brought by Ipeni Siale, a citizen, taxpayer and voter of Tonga. He challenges the validity of those payments, which were, of course, made out of public funds.

No point was taken on the standing of the plaintiff to bring this action. In other jurisdictions the action would proceed by the Attorney - General at the relation of the plaintiff. No similar procedure is possible in this Kingdom, and I shall assume that the plaintiff has sufficient interest in the subject matter of the proceedings to entitle him to bring this case. The defendants seek to have the action struck out. They say this court has no power to determine the issues raised. This is a matter, they say, over which the Legislative Assembly has absolute jurisdiction, and which therefore cannot be investigated by the Court. This, they say, is a matter protected by Parliamentary privilege and the court cannot question it. They cite a series of cases decided in England over the centuries, which they say are binding on this court by reason of sections 3 and 4 of the Civil Law Act (Cap. 14).

The action raises an issue of greater importance than payments to members of the Legislative Assembly. It is this: to what extent, if at all, are the actions of members of the Legislative Assembly in Tonga subject to the control of the court?

The Position in England

Let me deal first of all with the position in England. The court there accepts that there is such a thing as Parliamentary privilege. It recognises that there are some matters concerning Parliament over which the court e has no supervisory power. In general, the extent of that privilege is well recognised. But it is for the court, and not for Parliament, to determine whether a matter is covered by privilege. In so doing a court may have to decide what is the extent of that privilege, or even whether the privilege claimed exists at all.

Denman, L.C.J., expresses the point clearly in Stockdale v Hansard 3 St Tr (NS) 849. The House of Commons had passed a resolution declaring that the House had sole and exclusive jurisdiction to determine the existence and extent of its privileges. Denman L.C.J., would not accept that as binding on the court. He said (at p.876): "Clearly ... the court must enquire whether it be a matter of privilege, or a declaration of general law; as undisputably, if it be a matter of general law, it cannot cease to be so by being invested with the imposing title of privilege." Further on, he comments: "In truth, no practical difference can be drawn between the right to sanction all things under the name of privilege, and the right to sanction all things whatever, by merely ordering them to be done. The second proposition differs from the first in words only. In both cases the law would be superseded by one assembly; and however dignified and respectable that body, in whatever degree superior to all temptations of abusing their power, the power claimed is arbitrary and irresponsible."

The Extent of Privilege

Certain privileges are well established. They are necessary for Parliament to function properly. Their purpose is to enable members to carry out their duties effectively - without interruption; and fearlessly - without fear of consequences.

For this reason it is now well recognised that the control of Parliament over its internal proceedings is absolute, and cannot be interfered with by the court.

In Bradlaugh v Gossett (1884) 12 QBD 276, Stephen, J., stated (at p.278):

"I think that the House of Commons is not subject to the control of Her Majesty's courts in its administration of that part of statute law which has relation to its own internal proceedings."

And further (at p.280):

"It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned: and that, even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly."

And he further explained (at p.282):

"For the purpose of determining on a right to be exercised within the House itself, . . . the House and the House alone could interpret the statute, but . . . as regards rights to be exercised out of and independently of the House . . . the statute must be interpreted by this Court independently of the House."

The principle was upheld as recently as 1972 in Church of Scientology of California v Johnson-Smith [197211 All ER 378. The head note adequately sums it up: "What was said or done in Parliament in the course of proceedings there could not be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arose out of something outside Parliament . . ."

Commonwealth Decisions

These principles have been Commonwealth countries.

In Keilly v Carson (1842) 4 Moo PC 63, the Privy Council held that the Newfoundland House of Assembly did not have the same exclusive privileges as the Houses of Parliament because it was created by statute; but that it did have every power reasonably necessary for the proper exercise of its functions and duties. In Fenton v Hampton (1858) 11 Moo PC 347, the same reasoning was applied to Tasmania.

More recently, in Australia, there was the case of Armstrong v Budd (1969) NSWLR 71. There Herron, C.J., declared (at p.398): ". . . this court has a jurisdiction to determine whether in a particular case the House has exceeded the power conferred on it by the Constitution . . ." He had earlier stated (at p.391): ". . . in the absence of express grant the Legislative Council possesses such powers and privileges as are implied by reason of necessity: the necessity which occasions the implication of a particular power or privilege is such as is necessary to the existence of the Council or to the due and orderly exercise of its functions." And later (at p.397) "The requirements of necessity must be measured by the need to a protect the high standing of Parliament and to ensure that it may discharge, with the confidence of the community and the members in each other, the great responsibilities which it bears."

And in Namoi Shire Council v Attorney-General for New South Wales (1980) NSWLR 639, McLelland, J., held that the common law of England did not apply in Australia because the Legislature was created by statute (as is the Legislature in Tonga) and its privileges were therefore limited to those expressly conferred or necessarily implied.

The Position in Tonga

These cases are, of course, not binding on this court, but of persuasive influence only. And I bear in mind the distinctions pointed out by Mr. Edwards during the course of his argument for the defendants.

In particular, none of the Commonwealth countries mentioned has a statute which specifically incorporates English law generally into its own law.

Sections 3 and 4 of the Civil Law Act (Cap. 14) provide:

"3. Subject to the provisions of this Act, the Court shall apply the common law of England and the rules of equity, together with statutes of general application in force in England.

4. The common law of England, the rules of equity and the statutes of general application referred to in section 3 of this Act shall be applied by the court

(a) only so far as no other provision has been, or may hereafter be, made by or under any Act or Ordinance in force in the Kingdom.
and

(b) [is irrelevant for the purpose of this action]"

There is "other provision" for the purpose of section 4(a). It is contained in the Constitution and the Legislative Assembly Act (Cap. 4).

Section 30 of the Constitution divides the government of this Kingdom into 3: the King, Privy Council and Cabinet (Executive); the Legislative Assembly; and the Judiciary.

Section 56 of the Constitution gives the King and the Legislative Assembly the power to enact laws.

Section 17 of the Legislative Assembly Act (Cap. 4) authorises the payment of allowances to members. It reads (insofar as relevant): ". . . the Assembly shall have the power to make such provision as it thinks fit for the members during the session."

Insofar as these statutory provisions are relevant to an issue raised before the court, the court is entitled to - indeed must - consider whether what has been done in the House is in accordance with Tongan Constitution and statute law. No claim to privilege can alter that. That is clear on principle, and from a number of cases cited by counsel for the plaintiff: Kenilorea v Attorney-General [1986] LRC (Const) 126 (a Solomon Islands case); Liyanage v R [1966] 1 All ER 650 (a Ceylon case); Bribery Commissioner v Ranasinghe [1964] 2 All ER 785 (another Ceylon case), and there are dicta in Hinds v The Queen [1976] 1 All ER 353 (a Jamaican case) and Adegbenro v Akintola [1963] 3 All ER 544 (a Nigerian case). I will not refer to them in detail. Suffice it to say that the court held in each case that it was entitled to pronounce whether Parliament had acted in accordance with the written Constitution and statutes of the country concerned.

Where there is no statutory provision, this court must apply the common law and statutes of England.

Decision

There is no definition in Tongan statute law of allowances which may be paid to members. The only provision is in section 17 of the Legislative Assembly Act: ". . . the Assembly shall have the power to make such provision as it thinks fit for the Members during the session." That is a very wide power. No guidance is given as to how allowances should be calculated. On the face of it the decision is one for the Legislative Assembly alone.

Is that decision subject to the supervision of the court? To find the answer to that question I must turn back to the common law of England and the cases I have already mentioned.

There is one clear thread running through all those cases. Parliament is entitled to absolute privilege over its "internal proceedings". That includes speaking and voting on proposals to make law. It includes bringing matters of concern to the attention of the House. It relates to all things said and done for the purpose of carrying out the duties and functions of the House. It includes all decisions made by the House in its collective capacity. On all these matters the court has no power to intervene. It is highly undesirable that it should. The court has no more right to interfere with the proper working of the House than the House has to interfere with the proper working of the court.

There is no Tongan statute which limits the authority of the House to decide its own allowances. Accordingly, I hold that whatever the House has decided, in its collective capacity, that members shall be paid by way of allowances is part of its "internal proceedings," and the court has no power to overrule it, or to investigate the reasons for that decision.

That decision, however, is not sufficient to dispose of this action. The statement of claim pleads (at para. 15) that the House determined that g specific allowances should be paid to members; and (at para. 19) that members have been paid greater sums than those so authorised. This is a question of fact.

Counsel for the defence argued that even this issue cannot be determined by the court. He says it would necessitate the investigation of things said and done in the House; and the House cannot be required to produce such evidence because of parliamentary privilege. He cited the Church of Scientology case.

I do not agree. The court is entitled to ascertain, as a fact, whether there has been a collective decision of the House on this issue; and if so, what it is. It cannot question that decision. But it can look at the decision as it would a statute. It must accept the decision as a binding authority. Starting from there, the court can investigate whether the allowances in fact paid to each member were calculated correctly in accordance with that decision.

The actions of individual members in claiming and receiving their allowances have nothing to do with the basic function of the House. They are not "internal proceedings." In the words of Stephen, J., in Bradlaugh v Gossett, these are "rights to be exercised out of and independently of the House." Accordingly, these matters are open to investigation by the court. They are not the subject of parliamentary privilege.

In my judgment this court has jurisdiction within the limits indicated. The claim will not be struck out as a whole, but it follows that certain parts of it must be.

1. The acts of the Speaker, acting in that capacity, cannot be investigated by the court. Paragraph 20 of the Statement of Claim and prayer (a) will be struck out.

2. The claim against the Minister of Finance, in that capacity cannot be c sustained and paragraphs 21 and 23, and prayer (b), will be struck out. The argument that payments were in breach of the Appropriation Act and, therefore, unlawful cannot succeed. I was invited to read the Estimates of that Act. I am not entitled to do so. They form no part of the Act. In any event, if there was any overspending the House could authorise the balance by a Supplementary Appropriation Act and this court could not interfere.

Paragraphs 24 and 25 of the statement of claim contain inaccurate statements of law. There is no restriction in law on the power of the House to authorise such payments to its members as it thinks fit. It is pleaded that the members owe a "duty of trust and care towards the people of the Kingdom." That is no doubt philosophically accurate, but this court has no power to determine whether they have discharged that duty. The remedy, if one is required, is political and not judicial. These paragraphs also will be struck out.