Māteni Tapueluelu was legally elected, Tonga’s Court of Appeal said today.
In a 19 page ruling dated April 8, Judges Moore, Handley, Blanchard and Tupou found his election was lawful and did not breach Clause 65 of the Constitution.
Clause 65 says that “no person may be chosen against whom an order has been made in any court in the Kingdom for the payment of a specific sum of money the whole or any part of which remains outstanding.”
However, the judges said Tapueluelu was not in breach of Clause 65 because the Court of Appeal had stayed a Magistrate’s judgement against him pending an appeal in 2012.
That stay was in force at the time of his nomination and election in 2014.
Tapueluelu had lodged an appeal with the Court of Appeal to overturn a declaration by Lord Chief Justice Paulsen that his election on November 27, 2014 as the People’s Representative of the Tongatapu 4 constituency was unlawful and invalid.
Lord Chief Justice Paulsen’s judgement was based on the fact that at the date of Tapueluelu’s nomination and election, there was a judgment against him from the Magistrate’s Court.
On June 17, 2011 Tapueluelu was held liable to pay veteran Tongan politician Clive Edwards $TP10,000 in damages and $TP4500 in costs in a civil action for defamation.
Tapueluelu lodged an appeal against the Magistrate’s decision, but his appeal had been struck out by the Supreme Court on the grounds of what the Appeals Court called “inordinate and inexcusable delay in the prosecution of the appeal.”
An application for leave to set aside the Supreme Court’s decision and for a stay of execution of the Magistrate’s Court’s judgment had been dismissed by the Supreme Court, but on August 30, 2012 a Judge of the Appeals Court gave him leave to appeal and ordered the Magistrate’s Court’s judgment to be stayed, pending the outcome of that appeal.
An attempt to overturn the Magistrate’s Court’s original judgment against him was dismissed by the Appeals Court in June 2015.
In its statement, the Appeals Court said that stay was in force when Tapueluelu was nominated, registered as a candidate, elected and took his oath of office as a People’s Representative.
The main legal points
The four judges said the main issues they had examined were:
- Whether a Tongan Court’s order for payment of a specific sum of money remains “outstanding” if execution of the order has been stayed by that court or a higher court;
- Whether it is possible to challenge the validity of the outcome of an election by a means other than a petition brought under, and within the time limit fixed by, the Electoral Act, in a case raising an issue under cl 65 of the constitution;
- Whether such a challenge can be brought by the Attorney General; and
- Whether the Supreme Court in the exercise of its discretion should, in any event, refuse to grant any relief.
On the first point, the judges declared:
“What is intended by clause 65, we believe, is that a person qualified as an elector should not be able to become a candidate at an election if at the time of nomination he or she is in default in complying with a court order for the payment of specific sum of money.”
“But such a judgement does no more than create a judgment debt. It is not framed as an order to pay. If the judgement debtor does not pay, he is not in breach of the judgment or order so as to be in contempt.
“Once a stay has been granted the judgment debtor is not in default (even if the judgment was in the form of an order to pay) because the judge granting the stay, which is likely to be granted only pending the determination of an appeal, has concluded that the debtor should not be compelled by court process to pay until it is decided.
“The judgment debt is not ‘outstanding’ in terms of Clause 65 once a stay has been ordered. The debtor cannot be seen to be in default in the sense that he is simply ignoring the judgment or refusing to give effect to it. He has gone back to the court and it has agreed to stay the operation of the judgment so far as court processes are concerned.”
On the second and third points, the judges said the Attorney General could not challenge the outcome of the election because it breached Sections 25 and 26 of the Constitution, which limited the people, time and means of appeal against the outcome of an election.
On the final point the Court of Appeal awarded costs to Tapueluelu in the Court of Appeal and Supreme Court.
The main points
- Mateni Tapueluelu was legally elected, Tonga’s Court of Appeal said today.
- In a 19 page ruling issued dated April 8, Judges Moore, Handley, Blanchard and Tupou found his election was lawful and did not breach Clause 65 of the Constitution.
- The judges said Tapueluelu was not in breach of Clause 65 because the Court of Appeal had stayed a Magistrate’s judgement against him pending an appeal in 2012.
- That stay was in force at the time of his nomination and election in 2014.
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