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Nukufetau v Metia [2012] TVHC 8; Civil Case 2.2011 (11 July 2012)

IN THE HIGH COURT OF TUVALU
At Funafuti
HC. Civil Case no: 2/11

Civil jurisdiction

BETWEEN

KAUPULE OF NUKUFETAU
Plaintiff

AND

LOTOALA METIA
Defendant

BEFORE THE HIGH COURT

C Sweeney QC with T Finikaso for Plaintiff
T Malifa for Defendant

Hearing: 13,14 and 16 January 2012
Written submissions concluded 16 May 2012
Judgment: 11th July 2012

Judgment

[1] As originally filed, the parties in this action were the Nukufetau Falekaupule as plaintiff and the present defendant, Lotoala Metia. Objection was raised to the plaintiff's standing and I ruled that the provisions of sections 5(2) and 111(3) of the Falekaupule Act proscribe the Falekaupule's power to bring an action in the same way as it is protected by section 111(3) from claims for legal redress brought against it. I ruled that the Kaupule should be substituted as plaintiff. However, it is clear from the pleadings that the issues in this case all lie between the Nukufetau Falekaupule (the Falekaupule) and the defendant, Lotoala Metia (Metia).

[2] Although the Court has been supplied, particularly by the plaintiff, with a substantial number of affidavits the general factual background is largely undisputed.

Background

[3] At the general election held in September 2010, the members elected for Nukufetau were Enele Sopoaga (Sopoaga) with 499 votes and Metia with 399 votes. In the general celebrations following the election, it was clear that the island hoped one or other of the newly elected members would become Prime Minister. The Falekaupule expected the Nukufetau MPs to work together to achieve this to the extent that, if one was nominated for the position of Prime Minister, the other should support him. It appears that a meeting of the Falekaupule decided to support Sopoaga's bid for the position and sent a note, dated 24 September 2010, to the leader of the Nukufetau community on Funafuti. It was passed to Metia the same day during the feast. The letter was signed by the Secretary for the Chiefs stated that he was representing them. It continued:

"The Chiefs and Elders of Nukufetau kindly request Lotoala Metia to fully support Enele Sopoaga, who is thinking of registering his nomination for position of prime minister for the next 4 years. It is a wish and intention of Nukufetau for both of you to work together in the next 4 years. Working together is good for Nukufetau in the future!"

[4] This all took place in the two week post-election period which was allowed for the elected MPs to form a new government. During that time, Sopoaga and Metia had joined opposing groups - both of which hoped to marshal sufficient support to form the government - and so the request required Metia to forsake the group he supported and join the other. He chose not to abandon the group he had already joined. In the event, it was the group of which Sopoaga was a member which secured a majority and it formed a government under the leadership of Maatia Toafa. Although he failed to become Prime Minister, Sopoaga was given the position of Deputy Prime Minister and Minister of Foreign Affairs.

[5] The Toafa Government had been in power for less than three months when, on the 21 December 2010, it was defeated by a successful motion of no confidence which was, in fact, moved by Metia. The same day the Kaupule Secretary faxed Sopoaga and Metia reporting the decision of a meeting the Falekaupule had held earlier the same day:

"This is the outcome of the meeting. The Nukufetau Elders would like to ask you Hon Lotoala Metia to strive to achieve the aspiration of the Nukufetau elders and that is for the Head of Government this time to be held by one of you MPs of Nukufetau.

In the light of this aspiration, the elders would like to ask that you Hon Lotoala Metia to join group with Hon Enele S Sopoaga to consider how best this aspiration can be achieved. We also ask you Hon Enele S Sopoaga to nominate and support the name of Hon Lotoala Metia to the position of prime minister of the new government. That is the proposal from the Nukufetau elders, and we all pray that your efforts are blessed for a satisfactory outcome."

[6] It should be mentioned that the correspondence produced in evidence was in Tuvaluan and, in some cases, the Court has been given translations by more than one person. As a result, the precise wording may differ from one translation to another. However, I have checked that the meaning is the same in all versions.

[7] It can be seen that the letter of 21 December was asking Metia to abandon his group and to join the group which consisted of the government he had just been instrumental in toppling. Unsurprisingly perhaps, he did not do so and the following day, shortly before the time for lodging nominations expired, the group with which Sopoaga was associated nominated him for Prime Minister. Once again the Kaupule Secretary wrote to Metia in a letter dated 22 December 2010, changing the previous request:

"The aspiration of Nukufetau Falekaupule is for the Prime Minister post to be won by Nukufetau during this difficult time. ... We noted that nominations for the Prime Minister have closed today, but the aspirations of Nukufetau remain intact ... the Chiefs and Elders of Nukufetau Falekaupule, kindly requested you Lotoala Metia, to support Enele Sopoaga who has been nominated as Prime Minister by their party."

[8] The next paragraph was apparently added the following day:

"Today, Thursday 23December 2010, another special meeting was urgently called by the Falekaupule to assess the situation should you refuse to work together with Enele Sopoaga as per fax dated 21 December 2010. You are hereby reminded to comply with the decision of the Falekaupule to support Enele Sopoaga who has been nominated by the other party. This decision for Members to work together in one group will be enforced against future elected MPs of Nukufetau. If you do not comply with this decision, Falekaupule will impose another strong and harsh decision upon you."

[9] A letter was also sent to Niko Apinelu (Apinelu), the Toeaina of the Nukufetau Community on Funafuti pointing out to him the opinion of the Chiefs and Elders that Metia needed to support Sopoaga. It continued:

"In due respect we ask for the Nukufetau Community on Funafuti to invite the Nukufetau two MPs, and call an urgent meeting, with the main aim of trying to encourage them to work together in one group, and especially for the Hon Lotoala Metia to support the nomination of Enele S Sopoaga."

[10] The meeting was held but Metia did not attend. He told the Court that the letter to the leader of the community was only copied to Sopoaga and not to him. The translated copy supplied to the Court does not name either MP as having received a copy. However, it is apparent that Apinelu visited Metia and advised him to attend because Metia sent a letter to him on 23 December 2010:

"Thank you very much for coming with your deputy last night to advise me to be present together with Enele to the urgent meeting of the community scheduled for 4 pm today at Talimalie Falekaupule.

Due to the fact that our group is very busy forming the new government of Tuvalu, it is with regrets to advise that I cannot attend the meeting as requested. I believe this is my priority national duty as MP for Nukufetau."

[11] As a result of Metia's failure to attend, the Falekaupule decided to send a savali or special delegation of five Nukufetau elders present on Funafuti to deliver the decision to Metia. That decision, as delivered to Apinelu on Funafuti, was:

"This is the resolution of the Chiefs and Elders meeting: to further request Hon Lotoala Metia to support the nomination of Hon Enele S Sopoaga who has been nominated by his group to the position of Prime Minister. If this directive is not supported, to pass on this letter of their decision for him to resign from the seat of Nukufetau as a Member of Parliament. That is the decision of the special meeting of Chiefs and Elders of Nukufetau held this afternoon (23 December 2010)."

[12] The savali reported back to the Falekaupule, on 24 December 2010, that they had delivered the message to Metia where he and his Parliamentary group were meeting in the house of Willy Telavi. The savali reported that his response was to challenge the right of the island community to remove him from the seat pointing out that, if they wished to do so, they should take the matter to the law. Metia's evidence was that he received that message and gave an oral apology that he could not meet the savali as his group were in the position to form a new government and intended to do so within one hour. They did so shortly afterwards at 9:30 am that day when Willy Telavi was chosen as Prime Minister.

[13] In their report, the members of the savali stated:

"Lotoala Metia did not accept to have a meeting with us, the mission appointed by the Chiefs and Elders, to dialogue properly with him.

Presently while writing this report, a change of government has happened, and the new government is the group with Lotoala Metia. As this MP has not fulfilled the wishes of the Chiefs and Elders and instead has followed the wishes of his friends and relatives it is the view of the mission and also of the Nukufetau Community on Funafuti for a strong decision by the Chiefs and Elders of Feaaimoteata for Lotoala Metia to resign from the seat of Nukufetau to Parliament. We recommend for the urgent issuance of such a decision in return today."

[14] The same day, 24 December 2010, the High Chief of Nukufetau wrote to the Governor General, under the heading, "Decision for the Hon Lotoala Metia to Resign", informing him of the decision made by the Falekaupule:

"This decision was made following the rejection by the Hon Lotoala Metia of the Nukufetau, Community to support the aspirations and hope of the Community, passed to him through three letters and a special mission of the Nukufetau elders residing on Funafuti.

This letter is to inform Your Excellency of the resolution by the Nukufetau Community passed in its meeting this afternoon Thursday 23 December, which reads: the Hon Lotala Metia to resign from the Nukufetau seat to Parliament. The purpose of this letter is to inform you of this decision."

[15] In his reply on 30 December 2010, the Governor General explained:

"The arrangement for the type of independent country that Tuvalu is in, voting rights are accorded those people eligible to elect members of Parliament. They will remain as elected members during the life of Parliament which is normally four years. A Member of Parliament may only be removed from the seat of Parliament if he is found guilty by a court of any offence, or if he resigns out of his own consent.

Under the Tuvalu laws, and especially the Constitution, there is no authority empowered on Head of State or any other institution, for him to entertain any proposal from an island constituency, for the elected MP to resign if the island community no longer is in support of that MP. In this respect, and with all due respect, I am unable to entertain the proposal by the island community of Nukufetau."

[16] On 31 December 2010, the High Chief responded. Having thanked the Governor General for clarifying his position, he continued:

"The purpose of this letter is to establish a firm understanding that the wish of the Nukufetau Community has been conveyed to Government through Your Excellency ... In addition, I am deeply concerned by the reply we have so far received from the Hon Lotoala Metia, which will sure cause great concerns also to the men and women of Nukufetau as they enter the New Year.

This letter is therefore, copied also to Lotoala Metia, with the view that he resigns from the Nukufetau seat to Parliament. Nukufetau is strong on this decision of theirs also because of some of his remarks that he was not elected by the Nukufetau Community but by his friends and relatives. The question is, which island constituency is now represented by Lotoala Metia in the Parliament of Tuvalu.

Added to these, is his rejection of the directives of the Nukufetau Community and the special mission of Nukufetua elders on Funafuti. As the seat in parliament belongs to the Nukufetua Constituency but not to his family, it is hereby instructed that you Lotoala Metia to resign from the Nukufetau seat.

We are regretful, Your Excellency, with the tone of this letter but these are specifically targeted at Lotoala Metia. It is important in our view that the situation on Nukufetau is resolved amicably to restore peace and happiness on the island, and to discourage disobedience by any person to the directives of chiefs and elders."

[17] The letter was copied to both MPs and Apinelu.

[18] Subsequently another savali, which now included the High Chief in person, arrived from Nukufetau and a letter was sent to Metia for him to attend a meeting at the Talimalie Falekaupule on Funafuti on 10 January 2011. Metia's evidence is that he sent a letter of apology the same day that he could not make it to the scheduled meeting. Sopoaga's affidavit states that Metia refused to attend but instead wrote a letter to invite the delegation to meet with him at his office in the Government offices at a different time (which is admitted by Metia in his amended defence). Sopoaga's evidence continues:

"The reply was totally out of Nukufetau cultural and traditional protocols which require that regardless of official status and position, all people of Nukufetau must respect the High Chief's calls.

The defendant's charge (sic) was most disrespectful, it not only infuriated the High Chiefs as being disrespectful but also insulted the whole of the Nukufetau Community on Funafuti and elsewhere who never expected their High Chiefs to be relegated and mistreated by the Defendant. This was cause for great agitation amongst the Nukufetau Community on Funafuti."

[19] The meeting took place at 4.0 pm without Metia and reconfirmed the decision that he should vacate his seat immediately. A letter was written to him the same evening, 10 January 2011, by the High Chief and copied widely. I set it out in full;

"Today at 4.00 o'clock, a meeting was convened by the High Chief (Ulu Aliki) and Chief Kaupule (Pule Kaupule), and the Nukufetau Island Community on Funafuti to try and resolve issues concerning the two Nukufetau constituency parliamentary seats. It is with great concerns that despite the invitation from me and the Chief Kaupule to attend the meeting, once again you deliberately decided to defy the invitation and refused to attend.

Considering your constant defiance of the so many Nukufetau Island Community's requests, proposals and invitations for dialogues, communicated to you through many letters, a delegation of Nukufetau island leaders on Funafuti nominated by Falekaupule at Nukufetau, and especially from the Nukufetau Chiefs Delegation, led by me, Hosea Faapaologa, High Chief of Nukufetau, which arrived Funafuti this morning, it is through this letter that I wish to reconfirm and convey the decision of the Nukufetau Falekaupule "...for you (Lotoala) to resign from the Nukufetau seat to parliament which you are currently holding, ..." under s.96(1)(d)of the Constitution without delay and before 4.00 pm today.

I also wish to inform you that besides the above decision, the Nukufetau Falekaupule has also decided as follows, to:

- Banish you, Lotoala Metia, from all Nukufetau Island Community activities and any other activities in the name of Nukufetau, here on Funafuti or on Nukufetau itself;

- Ban you, Lotoala Metia, from benefiting from any offers of work or study allocated under Nukufetau Community's name;

- Abolish all recognition of you as a Member of Parliament representing the Nukufetau Constituency in writing and discussions, as from now on;

- Withhold from you all courtesies and seating posts in the Nukufetau 'falekaupule' both in Nukufetau at Feagaimoteata Falekaupule and Funafuti at Talimalie Falekaupule;

- Stop you from representing any proposal or issue in the name of Nukufetau in Parliament or any other institution in Tuvalu;

- Ban you, Lotoala Metia, from any discussions and writings concerning parliamentary submissions in the name of Nukufetau, in Nukufetau, Funafuti or elsewhere.

Based on the above, I urge you again to resign from the Nukufetau seat to Parliament as soon as possible and not later than 4 o'clock today Tuesday 11 January, 2011. If you fail to honour this call from Nukufetau, the Nukufetau Island Community will exhaust all within its ability to implement its decision to remove you from the Nukufetau seat in Parliament that you are holding.

May Almighty God help show the way forward to resolve the issue of the Nukufetau seats in Parliament, for peace of the Nukufetau Island Community and of Tuvalu."

[20] Subsequently to these events, the Nukufetau Community has been split, there has been a protest march on Funafuti and placards have been posted with offensive, defamatory and threatening comments to Metia in reference to the consequences of failure to obey the Chiefs. At the time of the hearings in this Court, the antagonism of the two groups was tangible.

[21] Metia has not resigned his seat. He sits as MP for Nukufetau and is, currently, Minister of Finance and Economic Development.

[22] As I have stated, those facts in essence are undisputed. The affidavits, particularly of the two MPs, differ on many aspects of detail of such things as the suggested reasons and motives behind the events I have described above but I do not consider it necessary to resolve those issues. I note the defendant's suggestion that the sudden about turn by the Falekaupule on 23 December 2010 and the apparent incitement of many people from the island to demonstrate against Metia was the result of purely politically motivated moves by the supporters of Sopoaga. It was a suggestion made more that once and was purely speculative. It does not affect the decision in this case and, apart from the repeated assertion and the clear antagonism between the parties and their supporters, there was little evidence to support it and I disregard it.

The Pleadings

[23] The case as first pleaded sought an order that the defendant does not have the support of the island community, that he should therefore resign as their elected representative, damages and costs. At the first hearing in March 2011, I gave leave to the plaintiff to amend the claim. The amended statement of claim, filed on 31 May 2011, sensibly abandons the request for an order that he should resign his seat and is, in fact, a totally new pleading. The plaintiff now seeks the following orders:

A. Declaration that the defendant has been banned from Nukufetau by the customary process known as falaesea;

B. Injunction to restrain the defendant from returning or seeking to return to Nukufetau;

C. Declaration that the defendant has lost the support and confidence of the electors of Nukufetau;

D. Declaration that the defendant has lost the effective capacity to represent Nukufetau in Parliament;

E. Declaration that the defendant is not of good character or a fit and proper person to hold ministerial office or office as a member of Parliament;

F. Order that a copy of the court's reasons for judgment be delivered to the Governor General and the Prime Minister;

G. Costs.

[24] The amended defence firmly denies the breaches of duty alleged and, whilst apparently accepting the existence in custom of falaesea, denies the right of the Falekaupule in the circumstances of this case, to banish the defendant under it and, alternatively, asserts that it conflicts with his rights under the Constitution as the supreme law of Tuvalu

[25] Despite the abandonment of the earlier claim and the change in the thrust of the plaintiff's case as set out in the amended statement of claim, the initial suggestion that a member of Parliament is not only answerable to the island which elected him but is also obliged to take instructions as to the manner in which he exercises his powers in Parliament and to resign if told to do so is still a central feature of the plaintiff's case. The orders sought in paragraphs C, D and E of the prayer are clearly directed to that issue and, if the Court makes them as sought, can then become the justification for the orders in paragraphs A and B.

The issues

[26] The question for the Court, therefore, is effectively twofold; first, is an elected member of Parliament subject to the direct control of the island which elected him including a demand that he resign his seat and, second, whatever the answer to the first question, does his customary obligation to obey the demands of the island as expressed by the Falekaupule, override his duties to Parliament? I shall endeavour to answer those two questions and then to relate each answer to the specific orders sought.

The first issue; the electorate's right to control its MP

[27] The first question can be answered quite shortly. It is clear that the Constitution is structured around the concept of a parliamentary democracy. Under it, Parliament is the paramount law-making body and the executive government is headed by a Prime Minister and Cabinet of Ministers answerable to Parliament. Parliament is given the exclusive power to make rules of procedure for the regulation of its own conduct and proceedings and for the discharge of its business. It was suggested by Mr Sweeney in his opening that there is nothing in the Constitution to suggest that, once a person is elected to the Tuvaluan Parliament, he has the same or similar privileges or freedoms as has a Member of Parliament in a country such as the United Kingdom. Tuvalu has no political parties as such and, counsel contends, any member of Parliament is subservient to the Falekaupule on his island because, since time immemorial, that has been the highest authority in the community from which he was elected to Parliament

[28] I consider that ignores the overall structure of the Constitution. Paragraph 4 of the first Schedule requires the Constitution to be read as a whole and all the provisions to be given their fair and liberal meaning without unnecessary technicality. Viewing the structure of the Constitution as a whole the picture is familiar to any citizen of a parliamentary democracy. The members are elected under a system of universal, citizen and adult suffrage. Following election the Members would normally continue in that office for the full term of four years. Any question as to the validity of their election and whether or not they have vacated the seat must be determined by the High Court.

[29] I am satisfied the whole structure is clearly intended to follow what in many parts of the Commonwealth is regarded as normal parliamentary practice. If, as counsel contends, the intention was to depart from the normal concepts of parliamentary democracy in any way and particularly in such a substantial way as to make a member of Parliament responsible not to the Parliament to which he has been elected but to the governing body of his electoral district, it would have been clearly stated in the Constitution. No such provision appears nor has my attention been drawn to any provision abandoning or qualifying any of the generally recognised procedures of democratic parliaments. To import such an intention requires the addition of meanings which are neither stated nor inferred in the Constitution or Laws of Tuvalu.

[30] One of the most fundamental aspects of parliamentary democracy is that, whilst a person is elected to represent the people of the district from which he is elected, he is not bound to act in accordance with the directives of the electorate either individually or as a body. He is elected because a majority of the voters regard him as the candidate best equipped to represent them and their interests in the government of their country. He is bound by the rules of parliament and answerable to parliament for the manner in which he acts. Should he lose the confidence of the electorate, he cannot be obliged to resign and he can only be removed for one of the reasons set out in sections 96 to 99 of the Constitution. Had the intention being otherwise, it would have been such a fundamental change that it necessitated specific provision in the Constitution or a statute to establish some procedure by which the views of the electorate can be properly ascertained and imposed on the elected representative and also how or what he must do when deciding matters upon which they have no particular interest. Is he, in such cases, to remain silent or to use his own discretion?

[31] Clearly any elector or person in the electoral district is entitled to hold and, if necessary, state his views on any matter which may be debated in Parliament. It is equally proper to try and persuade the MP to abandon a particular approach and adopt another and even to tell him that you will not vote for him again if he does not do as you direct but it is quite improper to make any other threats should he fail to do as you or your group directs. The fact the elected member is answerable to Parliament does not, of course, mean he is no longer answerable to the electorate. He clearly is but the electorate's control over him can only be exercised through the ballot box at an election.

[32] This first issue has been described more than once by witnesses and counsel once as a determination of the Falekaupule's right to ownership of its Parliamentary seat. I consider that arises from a misconception of the role of Parliament and the parliamentary electoral system. If there is any 'ownership' of a parliamentary seat, it must that of the electorate. The individual members of any falekaupule will almost certainly be electors on their island but the falekaupule as a body is not part of the electorate. Whilst this case principally arises from the customary position of the Falekaupule as the highest authority on Nukufetau, its assertion of its customary authority amounts to an attempt to control, by a convenient sidewind, the manner in which a purely statutory body functions.

[33] Prior to the establishment of central government in the islands of what is now the nation of Tuvalu, there was no body superior to the High Chief and/or the Elders meeting in the maneapa of each island. Each island was effectively a separate, distinct country. The jurisdiction of the island's maneapa covered the whole of its island, the surrounding seas and its people but nothing more. The establishment of a system of central government meant there was a new body with jurisdiction to make laws which covered all the islands in the new country. The Constitution which established the present structure of central government made Parliament the supreme legislative body and its laws superior to customary and traditional practices on the individual islands. Clearly, and wisely, it recognises the importance of retaining such custom and its significance in the Tuvaluan way of life even to the extent that they may, in some cases, override the effect of an individual national law.

[34] The present case demonstrates very forcefully the strength of the customary respect for, and acceptance of, the role of the Falekaupule on Nukufetau but it also highlights the potential conflict where the legitimate application of the Falekaupule's customary and moral authority over a member of its community will inevitably clash with a national institution established by statute over which the Falekaupule has no customary rights. In this case, that body is Parliament and both the institution itself and the system of electing its Members is entirely statutory. It has no customary basis and there is no provision for a body with no place in that statutory system to obstruct or control the manner in which it works. Custom can and, manifestly, does exist in Tuvalu alongside Parliament but there is no customary right to obstruct or interfere with the procedures of the latter. That is only permitted by statute and in the manner prescribed by statute. Metia was elected as a Member of Parliament under that statutory law, not under any customary process and he can only be removed in accordance with the statutes, not by custom..

Orders C,D and E

[35] At the general election in 2010, Nukufetau returned two Members. Metia was one of three candidates who stood on Nukufetau and he received the second-highest number of votes. The third candidate received less votes and was not elected. Had there been any challenge to the validity of Metia's election, the remedy lay in a petition to the High Court. None was filed. If the electorate are dissatisfied with the manner in which he is conducting himself as a Member, their remedy is to avoid electing him at the next election. Until then, he is and must remain as one of the two MPs for Nukufetau, unless he decides to resign or otherwise has to vacate the seat under sections 96, 97, 98 or 99 of the Constitution. It is clear that he has not resigned and no other step has been taken under those sections. Nor has any other evidence has been called to suggest that he has lost the capacity to represent Nukufetau in Parliament. I refuse to make the declaration sought in paragraph D.

[36] Paragraph C seeks a declaration that Metia has lost the support and confidence of the electors of Nukufetau. I have heard evidence that some, and possibly a majority of, members of the Falekaupule and of the Nukufetau Community no longer support him. The burden is on the plaintiff to prove such a matter to the civil standard and there is no evidence to prove what proportion of the electors of Nukufetau have withdrawn support and/or lost confidence in the defendant. The court was told of a form of referendum and the document was produced. The defence has challenged the validity of this so-called referendum. However there was no evidence to prove what proportion of the names were electors, how the forms were distributed or the basis upon which they decided to sign. A copy of the form was exhibited with what is stated to be a copy of the results. Again there is no evidence to explain how the figures were compiled and it is not apparent in the multiple questions to which alternative they refer. Without those details it is impossible to know how, why or whether the people who voted for Metia had, within a few weeks, lost all confidence in him.

[37] In the absence of such details, the evidence had little or no value although I accept that it appears from the evidence as a whole, including the protest march held in January 2011, that certainly a substantial number of Nukufetau people no longer support him.

[38] I decline to make the declaration sought. I further make it clear that, even if it was proved that there was not a single elector left in the Nukufetau Community who still supported him, it would, in itself, neither remove his right to take his seat in Parliament for the full parliamentary term nor to require his resignation.

[39] With respect to paragraph E, the question of his character or of his fitness to be a Member of Parliament for reasons apart from the provisions of sections 97 to 99 of the Constitution is a matter for the subjective opinion of each elector. It is not a matter for this Court to determine but, had it been, the evidence produced by the plaintiff fails to establish either. Whether or not he is fit to hold ministerial office is a matter exclusively for the Prime Minister and is not within the jurisdiction of the Court. The declaration is refused.

The second issue; falaesea

[40] I have already stated in paragraph [26] that the second issue to be resolved is whether an MP's customary obligation to obey the commands of the island as expressed by the Falekaupule, overrides his duties to Parliament. Paragraphs A and B of the prayer in the statement of claim, as can be seen, do not seek orders in those terms. They first seek a declaration that the ban imposed on him by the Falekaupule was under the customary process known as falaesea (paragraph A) and then an order that he comply with that banishment (paragraph B). The manner in which the case has been presented by the plaintiff has been to seek to prove that the customary power to order falaesea exists and that it was properly ordered by the Falekaupule. However, in order to ascertain the answer to those questions in the context of this case, the Court must consider the whole customary authority of the Falekaupule and whether it can properly be used to intrude on or counteract the authority of Parliament. That, as I said above, must be determined first before moving to a consideration of the specific orders sought in paragraphs A and B of the prayer.

[41] At the conclusion of the hearing in Court and after counsel had completed their oral submissions, I gave time for both sides to file any documents which they considered might assist in this aspect of the case. I am grateful to counsel for the care with which they have presented both oral and written submissions and the quality of the academic papers submitted. At one stage there was a further request to adduce evidence of events which had apparently occurred since the court hearing. I did not allow those submissions and, as Mr Sweeney first had properly advised me of their nature and sent them in a separate e-mail from his other submissions, I was able simply to delete them without reading them.

[42] A common problem for the court when evaluating evidence of customary practices is to distinguish between a purely objective account of the practice and a subjective account given to meet that witness's case. I consider that the repeated acceptance of faleasea as the appropriate or necessary way of dealing with the present situation by many of the plaintiff's witnesses is highly subjective. However, the problem does not arise in this case in respect to the existence of falaesea – far more to the appropriateness of its use. The evidence of its existence adduced by both parties does not challenge the existence on Nukufetau of such a power in the past or that it was traditionally ordered by a meeting of the high chief and elders in the maneapa or falekaupule. The dispute appears to be over its present existence and nature and the evidence drew a distinction between what witnesses for both parties referred to as partial falaesea, a process mainly of ostracism, and full falaesea or total banishment and the conduct which was likely to invoke either order.

[43] Whilst the defence case was that, even if falaesea in the form of full banishment existed in the past, it had not been used in recent times, the same witness clearly accepted that there had been relatively recent cases of partial falasea. A number of historical and ethnological papers were placed before the Court and I have read them with interest. Although Tuvalu in general and Nukufetau in particular hardly feature, I accept, as the learned authors do, that banishment under various names was so widespread in Polynesian culture that it is reasonable to assume it occurred also on Nukufetau.

[44] I am satisfied that the right of the Falekaupule, as the highest authority in the island community, to order falasea remains part of the custom of Nukufetau. Whether or not its retention or use can or should be considered sufficiently necessary to preserve Tuvaluan values, culture and tradition or the sense of identity of any particular island community so as to override constitutional protection, particularly the right to freedom of movement, must be a matter to be determined on the facts of each case. Although it has not been fully argued in the constitutional context, my concern about the latter inevitably formed part of my decision not to grant the order sought in paragraph A.

[45] Recent cases referred to in counsels' submissions came almost exclusively from Samoa and, while some of the observations by those courts were instructive, they must be read against the fact that some forms of banishment in Samoa are accepted in the written law. The position in Tuvalu is different. In any cases in this jurisdiction where a customary right is claimed in conflict to a written law, it is done in reliance on the principles in the Preamble which are stated to be the basis of the Constitution and the guiding principles in its interpretation and application and to form part of the basic law of Tuvalu from which human rights and freedom derive; Preamble and section 13:

"3. While believing that Tuvalu must take its rightful place amongst the community of nations in search of peace and the general welfare, nevertheless the people of Tuvalu recognise and affirm, with gratitude to God, but the stability of Tuvaluan society and the happiness and welfare of the people of Tuvalu, both present and future, depend very largely on the maintenance of Tuvaluan values, culture and tradition, including the vitality and the sense of identity of island communities and attitudes of co-operation, self-help and unity within and amongst those communities

4. Amongst the values that the people of Tuvalu seek to maintain are the traditional forms of communities, the strength and support of the family and family discipline.

5. In government, and in social affairs generally, the guiding principles of Tuvalu are—

agreement, courtesy and the search for consensus, in accordance with traditional Tuvaluan procedures, rather than alien ideas of confrontation and divisiveness;

the need for mutual respect and co-operation between the different kinds of authorities concerned, including the central government, the traditional authorities, local governments and authorities, and the religious authorities.

6. The life and the laws of Tuvalu should therefore be based on respect for human dignity, and on the acceptance of Tuvaluan values and culture, and on respect for them."

[46] Since the passing of the Falekaupule Act in 1999, the falekaupule on each island has been given additional statutory powers and duties most of which were previously exercised by the Local Government Councils and the Island Executive Officers. Those powers and duties are clearly intended under the Act to be additional to the falekaupules' traditional role but the more formal role given to the falekaupule under the statute would appear effectively to introduce a new dimension which must be borne in mind when any such decision is challenged in the courts.

[47] A decision made by a falekaupule under statutory powers given by the Act must be reached with the usual standards of fairness expected of official bodies. No court will support a decision by a public body under any Act which is arbitrary or manifestly unfair or unreasonable because the attainment of statutory powers by such a body comes with an expectation of procedural fairness and disclosure of the reasons for the challenged decision. It would be inconsistent with the official role given falekaupule by statute if they should apply different standards to customary decisions, especially those affecting the rights and liberty of individuals, from those applied to statutory decisions.

[48] In the present case, the defendant has challenged the decision of the Falekaupule on a number of grounds one of which is that the decision to require Metia to resign from Parliament was not made by a properly constituted meeting of the Falekaupule and was, in itself, arbitrary and unfair. The allegation by the defendant and his witness was that the decision was made by a very small number of those entitled to sit in the Falekaupule and was not made in a properly called or conducted meeting. That has been denied by the plaintiff but no further evidence has been adduced to advance its assertion of regularity although the Court has been told that a request by the plaintiff for the minutes of the relevant meetings of the Falekaupule had not been met and no such minutes were produced to the Court. Although the exhibited correspondence repeats the Falekaupule's demand that Metia resign from the seat to which he was elected, it gives no indication of the manner in which the Falekaupule reached that decision or the number of members of the Falekaupule who were present and took part.

[49] It was also suggested by the defence that, in the reasonably recent past, similar situations had occurred in which the elected MPs for Nukufetau had failed to comply with the request by the Falekaupule to work together. They were not punished or subjected to falaesea in any form. If customary practices are to continue in the modern world, it is no longer, the defence suggests, acceptable for the Falekaupule to make decisions so patently, and unfairly, inconsistent. This is the more so when it involves ordering so extreme a penalty as banishment. Counsel for the plaintiff suggests it is not a punishment but merely a restriction. I cannot accept that is a valid distinction and I have no doubt the plaintiff's witnesses who so stridently support it also regard it as a punishment. As I have said, the Falekaupule must now expect to have its decisions on important issues, even under custom, measured against a different yardstick

[50] The last of the principles in the Preamble to the Constitution anticipates the likelihood of changes even in matters of tradition and custom especially when they relate to the fields of law and public administration. I am satisfied the change in the manner of decision making to which I have referred is within the scope and intention of that seventh principle:

"7. Nevertheless, the people of Tuvalu recognise that in a changing world, and with changing needs, these principles and values, and the manner and form of their expression (especially in legal and administrative matters), will gradually change, and the Constitution not only must recognise their fundamental importance to the life of Tuvalu but also must not unnecessarily hamper their expression and their development."

[51] The Constitution gives any member of the public the right to challenge an alleged breach of his constitutional rights in the courts. It also requires the Court, in considering the propriety of an action which allegedly breaches the right, to evaluate the effect of the case in respect of the need to preserve Tuvaluan custom. The 1999 Act, has given all falekaupule a substantially enlarged formal legal and administrative role which carries with it the obligations of fairness to which I have referred. As a result, whilst the Court will always bear in mind the customary legitimacy and importance of a decision under challenge, it will also expect that, in order to justify the preservation of such customary actions, they will have been demonstrably reached by a proper, recognised customary procedure which also complies with modern concepts of fairness.

[52] As I have already pointed out, it was perfectly reasonable for the Falekaupule and the Island Community to hope that one of their two MPs would become the next Prime Minister. It was equally reasonable for them to convey that hope to the MPs and, as they did, to point out the need to support each other in that quest. Any elector is entitled to express his views to his MP and to indicate his disagreement with the manner in which the Member is performing his duties in Parliament. It is the right of every elector, if he wishes, to try and persuade his MP to resign his position but that right does not extend to threatening reprisals and imposing severe penalties which will, and are clearly intended to, impede the performance of his parliamentary duties to his constituents should he refuse to do so.

[53] It is not disputed that the Falekaupule did, at least twice, attempt to arrange a meeting with Metia to discuss the situation and he failed to attend. It is the failure to comply with the elders and, later, the Ulu Aliki's request to meet which Mr Sweeney, on behalf of the plaintiff, advised the Court was the breach of customary protocol which was sufficiently serious to arouse such strong feelings among many of the Nukufetau Community and which, together with his refusal to resign, led to the order of falaesea.

[54] The Court has no doubt that very strong feelings were, and manifestly still are, involved and that, whatever the reason or cause, many members of the Nukufetau Community, particularly on Funafuti, supported the Falekaupule's actions. I accept on the evidence before me that a failure to attend when summoned by the Falekaupule is a serious breach of protocol. However, the Falekaupule clearly was aware that all the Members of Parliament were meeting to try and select the next government. The country had no government and it was clear Metia considered it his duty to do all that was necessary to make sure a new government was formed. The day following the call by the leaders of the Nukufetau Community on Funafuti to a meeting, Metia wrote to Apinelu as Toeaina pointing out, as set out in paragraph [10] above, "Due to the fact that our group is very busy forming the new government of Tuvalu, it is with regrets to advise that I cannot attend the meeting as requested. I believe this is my priority national duty as MP for Nukufetau."

[55] The Falekaupule's response to that letter and to Metia's offer of an alternative time and place for the meeting with the High Chief and, indeed, its conduct since, appears to suggest that it regarded its demands as being superior to the duties and responsibility to Parliament of an elected MP.

[56] I have already pointed out that the structure of the government of Tuvalu as formulated in the Constitution is a parliamentary democracy. The 1986 Constitution itself states that it is an instrument the people of Tuvalu, the whole nation, gave to themselves. It is a law which establishes the supremacy of the national Parliament and I do not accept that any national or island body can supplant that supremacy. It was a point appreciated by the, then, Chairman of the Tuvalu Island Leaders Assembly (comprising the Ulu Aliki, Pule Fenua or Ulu Fenua of the islands) in a letter he wrote to the Ulu Aliki of Nukufetau and the leaders of the other islands on 5 January 2011:

"On this occasion I wish to seek the attention of the High Chief of Nukufetau, as well as that of the whole Community, to re-consider the approach you have taken in regards the arrangements for the new government of Tuvalu. My special appeal is to allow the elected Members following the recent general elections to deal by them the sorting out of arrangements for the setting up of the Government of Tuvalu.

I have heard that your Island Community had made interventions directly to the Head of State to intervene to fulfil the desire of your community in line with the customary and traditional practices of Tuvalu. I believe it would not look good for us as leaders guiding the customary and traditional practices of Tuvalu to also intervene to disrupt what we ourselves had also put in the Constitution of the country.

I believe we as leaders all share the view not to allow the country to be destabilised by the decisions of Falekaupule, and especially not to allow island communities to get involved in the politics of the Parliament of Tuvalu."

[57] Metia could not attend the first meeting because of the critical stage which had been reached in the formation of a new government for the country. At the second, he was a Minister of the Tuvalu national government being asked to attend a meeting in normal working hours. He did not refuse but suggested an alternative time and venue. Despite the assertion by Sopoaga in his affidavit that Metia's actions have insulted and hurt the feelings of all Nukufetau people and that the ill feeling, animosity and instability that these actions have caused are serious and, if not addressed properly, can lead to very serious consequences, the subsequent conduct of the Falekaupule has done nothing to ease the situation and shows a very limited appreciation of the fifth principle in the Preamble to the Constitution.

[58] Sopoaga says the community decided to take the matter to the High Court for a fair and balanced hearing to ensure their combined rights of ownership of their parliamentary seat and the earliest restoration of peace and stability on Nukufetau. Yet Sopoaga's evidence is that, after the first court appearance, the Falekaupule resolved to dismiss without exception, all Metia's supporters, who had opposed the Community, from Nukufetau bodies or offices on the island. I also note the lack of dispute of Metia's evidence that he attempted to return to the island in October in order to apologise and 'dialogue' but was refused access.

[59] The letter of 10 January 2012 gave Metia his last chance to resign and made clear that failure to do so would result in the serious consequences set out including banishment and further steps clearly designed and intended to interfere with his duties to Parliament and including that:

" the Nukufetau Island Community will exhaust all within its ability to implement its decision to remove you from the Nukufetau seat in Parliament that you are holding."

[60] It was a remarkable and unfortunate threat. At the time it was made on 10 January 2011, it was clear that, if it was obeyed and Metia resigned, it would have resulted in the inevitable collapse of the national Government of which Metia was a member. The Falekaupule's demand was far more than a personal matter between it and one of its MPs. The effect on the country as a whole of yet another rapid change of government would have been extremely serious politically and economically.

[61] If the fifth principle of the Preamble is to have any real meaning, it must apply to this case. The Constitution is law for the whole of Tuvalu. It clearly and properly acknowledges the customary role of, and respect for, the falekaupule on each island but, when support for an island's custom and tradition will have a disproportionate effect on the whole country, the island's interests must be subordinated to the national interest. The constitutional preservation of those traditional values is a vital part of present day Tuvalu but I cannot accept that a decision to implement them on one island is reasonable if it will seriously have an adverse effect on the whole country. In the present case, I am satisfied that it was unreasonable for the Falekaupule to ignore the interests of the whole country over an affront to its dignity by one of the island community.

[62] I am further satisfied that the carrying out of those threats by the orders banishing Metia and thus preventing him from properly performing the duties for which he was elected were clearly contrary to the spirit and intent of the Constitution and a totally unacceptable intrusion into the workings of the Tuvaluan Parliament. It should be borne in mind that the supremacy given Parliament by the Constitution is over the country as a whole and must, therefore, take precedence over purely local interests if the latter are in conflict with the national interest. I am satisfied that, as it was a challenge to parliamentary supremacy, it was unreasonable and was thus a breach of the defendant's right to procedural fairness. Similarly, the order of falaesea, although a part of the customary practices of Nukufetau, was so extremely disproportionate to the actions of the Falekaupule in similar previous cases as to be unfair.

[63] There are claims of other breaches in the statement of claim which, although referred to by some of the witnesses, were never the subject of proper evidence and it is not necessary to deal with them further.

Orders A and B

[64] I turn now to the actual orders sought in the plaintiff's claim.

[65] The order sought in paragraph A of the prayer is a declaration simply that the defendant has been banned by the process of falaesea. Whilst I accept that that was the order made, I do not, as I have pointed out, accept it was an order reasonably or properly made. I also find it was based on a misconception of the duties of an elected Member of Parliament and a declaration in the terms requested would give a wholly false impression of the Court's decision in this case. For that reason, I decline to make the order sought.

[66] The effect of an order under paragraph B would be to confirm an order which I have already found to have been improperly made and it is refused.

[67] In consequence, the order sought in paragraph F is irrelevant.

[68] The plaintiff's claim is dismissed with costs to the defendant

Gordon Ward
Chief Justice

Delivered on the 11th day of July 2012 on Funafuti by Senior Magistrate Afele Kitiona