Tonga’s Appeal Court has dismissed an appeal by Paula Piveni Piukala and Fatai Helu, on the dismissal of their application for judicial review against a decision by the Supervisor of Elections, in regards to Lord Nuku’s election as a Noble’s Representative.
The Appeal Court in a judgment on 6 April in dismissing the appeal, stated that they agreed with the Lord Chief Justice’s reasons when dismissing the application.
On 16 November 2021, Lord Nuku was elected as one of nine Nobles’ Representatives. His qualification for election was challenged by Piukala and Helu on the basis of Clause 65 of the Constitution.
Clause 65 states: “Representatives of the People shall be chosen by ballot and any person who is qualified to be an elector and who is not in debt for a larger amount than is allowed by law may be chosen as a representative of the people.”
The response of the Supervisor of Elections to the issue raised by the appellants was that clause 65 only applies to the election of ‘Representatives of the People’ and not to Nobles’ Representatives.
Supreme Court Ruling
On 17 August 2022, an application for leave to apply for judicial review of the decision of the Supervisor of Elections was launched by Piukala and Helu.
A ruling on 29 August 2022, by the Lord Chief Justice dismissed the application on a number of grounds but principally that: “ On its true construction, clause 65 is concerned only with the qualification of Representatives of the People and does not apply to Nobles’ Representatives.
The Appeal Court said, counsel had since informed the court through the Registry that the appellants no longer sought a declaration that the election of Lord Nuku is invalid.
“Rather, they seek only a declaration as to the effect of clause 65 of the Constitution.”
Appeals Dismissal
The Appeal Court stated they agreed with the Lord Chief Justice for the reasons he gave.
“His analysis of the text of clause 65 in the context of related provisions of the Constitution and other primary and secondary electoral legislation demonstrates that the disqualification ban in clause 65 relates only to the election of Peoples’ Representatives.
“Whether the ban should also apply to Nobles’ Representatives is a matter for the Legislative Assembly. We do not view clause 4 of the Constitution as overriding s 65 of the Constitution nor as bearing on its interpretation given the clear differentiation drawn between the electoral processes relating to Peoples’ Representatives and Nobles’ Representatives elsewhere in the Constitution.
“We see no reason to differ from the conclusion reached by the Lord Chief Justice that the appellants have not demonstrated an arguable case such as to warrant the grant of leave to bring judicial review proceedings.”
The appeal was then dismissed. The respondents are entitled to costs against the appellants to be agreed or fixed by the Registrar.