Hearing For Tonga Reconstruction Loan Review Adjourned
NUKUALOFA, Tonga (Matangi Tonga, Jan. 24, 2013) – A hearing on an application for a Judicial Review of the Report of a Parliamentary Select Committee that investigated how a multi-million pa'anga loan from China was spent on the reconstruction of Nuku'alofa was adjourned to April 4.
Five of the six committee members who are defendants in this case appeared at the Nuku'alofa Supreme Court on Wednesday January 23 unprepared for the hearing and without legal representation. They asked for a last minute adjournment to June or July to allow parliament to sit and decide on the matter.
Chief Justice Hon Michael Scott granted the adjournment but rejected their submission for June. He set the hearing to be held at 10:00am on Thursday April 4 at the Supreme Court.
The judge then allowed an application by the plaintiff for indemnity costs of TOP$5,500 [US$3,166] against the defendants. He ordered 'Akilisi Pohiva, Lasike, Lord Tu'i'afitu, Dr Sitiveni Halapua, the Auditor General Pohiva Tu'i'onetoa and an independent lawyer Posesi Bloomfield to pay TOP$916 [US$527] each within seven days.
He said the plaintiff was ready to proceed but the defendants were not. The plaintiff had said that if they were told in advance about the adjournment they could have sought other arrangements, but it was made only five minutes before the hearing started. This caused an inconvenience to the court as there were other cases to fit in, he said.
CR Pidgeon QC who came from New Zealand for the hearing represents the plaintiff, Tonga's former Prime Minister Lord Sevele and the former Minister of Transport Paul Karalus.
The five defendants, except Lord Tu'i'afitu who was absent, represented themselves in court yesterday. They were united in their submission for an adjournment to June or July to allow Parliament to convene and decide on the matter. This included the issue of their legal representation to be approved from parliament or whether they would have to find their own representation.
CR Pidgeon submitted for the case to be held at the earliest date possible.
Sitiveni Halapua asked for the adjournment because the report was now being considered by another parliamentary committee. "We feel that the matter should be referred to the Speaker and for the house to decide on," he said.
'Akilisi Pohiva said the work on the report was not complete because the other committee was handling it. "Our work was the first part of the exercise so we have to get direction from Parliament and that is why I didn't feel [the need] to make a response in regards to the application but to wait until parliament decides," he said.
The Chief Justice said he should have made that reply and that the hearing would not go ahead on January 23 because work had not been completed as it would have saved him TOP$916.
"There is nothing here in court to say that the report has been put to another parliamentary select committee although it has been published. It is a pity that it was not drawn to the attention of the court," said the Chief Justice.
Lasike, on the other hand, told the court he did not support the adjournment to June as parliament might open in May or June and take a month to pass the budget. "I will support an adjournment to July because I promise Parliament will be busy in June," he said.
He also said he was under the assumption that the MPs were under immunity from prosecution.
The Chief Justice in granting the adjournment of the hearing rejected the defendants appeal for June/July. He ordered that the hearing be held earlier on April 4.
He told the defendants if they could not afford to get legal representation he would try his best to supply them with representation free of charge. He also asked defendants if they were going to represent themselves in this case then to write what they feel down and submit it to the court before the hearing date in April.
"The issue before me is to decide whether the Supreme Court has the power or jurisdiction to review what goes on in parliament. The report has been published and the question before me is whether the court should interfere with the makings of parliament which raises important constitutional issues," said Chief Justice Scott.
Lord Sevele and Paul Karalus in their application claim that the committee departed from the Terms of Reference that was given by parliament, and engaged in unwarranted criticism of the previous Government's actions, and that their calling for criminal investigation and prosecution had seriously damaged their reputations.
They claim that the report infringed natural justice, the Constitution and the Rules and Procedures of Parliament and for the court to quash the report and declare that the committee had breached the natural justice of the plaintiffs.
The report of the Parliamentary Select Committee known as the Nuku'alofa Development Corporation (NDC) Report was debated in parliament for a month during September 2012.
But in the end the House decided to pass the report onto an independent committee to be selected from members of the House's law and finance committees and was to be chaired by 'Aisake Eke.
The Acting Clerk of the House, Dr. Sione Vikilani told Matangi Tonga early this month that this committee had not been formed.
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