On the eve of joining the judiciary of Papua New Guinea, Supreme Court Justice Nicholas J Cooper was saluted for his adjudication in Tonga since March 2021. Here at ‘Atenisi, we withhold eulogy because, in his academic cases, His Honour betrayed what we regard as a statist bias that, in our view, retards justice. And without deploying the construct ‘statist’, the Court of Appeal has at times shared our concern about impartiality.
By statist is here meant prejudice in favour of the Government on the assumption the polity 1) solely represents the people at large and 2) is responsible for efficient administration unimpeded by pesky harassment.
Evidence of statism
In CV 59/2021, ‘Atenisi pled before Justice Cooper from September 2022-March 2024, successfully reversing his interlocutory Order of May 2023 and ancillary Orders of March 2024, but ultimately failing on appeal to overturn his Judgment of November 2023.
The first hint of Justice Cooper’s statism came in his judgment of a case in which ‘Atenisi was not a party – i.e., the Lavulavu trial (CR 173-74/2018), adjudicated June 2021.
As a subpoenaed witness, the current PM (‘Aisake Valu Eke DBA, not an MP at the time) testified that certain non-government schools enrolled students from disadvantaged families if, in lieu of tuition, they preferred some sort of in-kind service (e.g., carpentry, painting, gardening, gifts).
Yet, early on, His Honour accepted the Government’s position that students who didn’t lodge monetary tuition could not in fact be regarded as students under the TVET Act.
In reversing the Cooper Judgment via AC 17-19/2021 (Oct. 2022), the Court of Appeal found that:
At an early stage of the trial the Judge was, in effect, saying that, in his view, a critical aspect of the Crown’s case was proven fact and the trial should proceed on that basis … Not only does [premature opinion] potentially infect the integrity of the decision making process but, as occurred here, it immediately raises questions as to the impartiality of the judge.
To further trouble Judgment below, Justice Cooper castigated Dr Eke for not being motivated to tell the truth regarding in-kind service. Dr Eke’s counsel, Amelia Schaaf, feared the criticism might be regarded perjurious and advised her client to publicly defend his testimony, which he roundly did that month in Kaniva Tonga News.
As for the Court of Appeal, in AC 27/2022 it only regarded the judge’s criticism as a complaint against Dr Eke’s evidentiary – rather than motivational – compliance. Yet it conceded His Honour couched the reprimand in “undoubtedly strong terms”.
Later examples of Justice Cooper’s statism did occur in CV 59/2021, where ‘Atenisi was the Plaintiff:
In May 2023 the Defendant – the Tonga National Qualifications and Accreditation Board – accused its senior counsel since 2019 of inadequate representation. ‘Atenisi argued that, although former counsel had at times been poorly instructed, there was no evidence of malpractice. Unfazed by the dearth of evidence, His Honour arbitrarily ruled in TNQAB’s favour, rescuing the agency from the consequences of delinquent filing that threatened to limit its argument at trial:
[The Court was] informed that the lack of compliance with previous directions was due to [former counsel’s] failures in representation. That being so …
In overturning the interlocutory Order in AC 9/2023, the Court of Appeal found there was no evidence before Cooper J to
substantiate [TNQAB’s] assertion: in making the orders, Cooper J did not embark upon any form of ‘interests of justice’ inquiry.
Yet the coup de grâce occurred four months after Justice Cooper dismissed ‘Atenisi’s claims via Judgment of CV 59/2021. Regarding further prosecution by the Institute, His Honour – in supplemental Orders – forbade it from raising a subsequent claim unless the impecunious academy did what at the time seemed impossible: insured security for costs at the outset of renewed proceedings.
Justice Cooper’s post-Judgment Orders violated two of the Court’s recent precedents:
Finality of Judgment. In a ruling Oct. 2019, Lord Chief Justice Michael Hargreaves Whitten KC flatly stated that the “policy of the law is that proceedings be brought to an end by judgment.” This echoed the ongoing advice of Australia’s Federal Court: “Never add to a decision given in Court.”
Stifling of Claim. In a ruling April 2019, Lord Chief Justice Owen Paulsen conceded “it may be that [‘Atenisi] will not be good for costs; [however] to make an order for security for costs will be in my view oppressive in that it is almost certainly going to stifle [‘Atenisi’s] claim.”
Given the firm position of former LCJ Whitten, the Court of Appeal’s reversal of Post-Judgment Orders below was inevitable:
The Supreme Court had no jurisdiction to order security be given for costs after … final judgment had been delivered … the remedy fashioned by the judge was beyond his jurisdiction after his substantive judgment was delivered and was in any event uncertain and disproportionate … all the orders made on 11 March 2024 … are set aside.
Beyond statism
In fairness to Justice Cooper, not all his judgments reflect statist bias. In a recent judgment of CV 4/2024, for example, His Honour quashed a past decision by the Public Service Commission to terminate the CEO of the Ministry of Tourism, contending denial of due process.
But in the two academic cases before the judge, ‘Atenisi reckons Justice Cooper cut the Government far too much slack. And we hope that in replacing His Honour, the Judicial Appointments Panel selects a jurist with a more balanced judicial disposition.
Mr. Firitia Velt is President of ‘Atenisi Institute. The views expressed in this article are his and do not necessarily reflect the views of Talanoa ‘o Tonga.
