The Supreme Court has slammed a decision by a Senior Magistrate to refuse to hear a case brought by a lawyer from the Family Protection Legal Aid Centre.
Mrs F Fa’anunu, a lawyer employed by the Ministry of Justice to work at the Legal Aid Centre had brought a case before the Magistrate on behalf of a woman against her husband for maintenance, custody and a restraining order.
The magistrate said he was not satisfied that the FPLAC was established lawfully and considered that Mrs Fa’anunu could not appear as Counsel before the Court because she was a civil servant.
Since then the Magistrate’s Court has refused to accept filings from the FPLAC, other than applications for protection orders.
Lord Chief Justice Paulsen said the magistrate had no right to refuse to accept an application from Mrs F Fa’anunu or to declare that he would refuse to accept any applications brought by the Legal Aid Centre.
“It is a serious step for a Judge to refuse to hear any person’s case except on its merits,” Lord Chief Justice Paulsen said.
“It is the duty of the Judges to administer justice in accordance with the constitution and the laws of this country.
“Whilst the refusal of a Judge to hear a case is unusual enough, it is an even more serious matter for a Court to refuse to accept filings from an entire class of litigant.
“That is what has occurred here since the Magistrate’s Court has refused to accept filings from the FPLAC. Such a step should not have been taken without reference to the Lord Chief Justice. Any filings made should have been accepted and set down for hearing following the determination of this appeal.”
The judge said the FPLAC was established by Cabinet to help survivors of domestic violence in Tonga for one year.
“The FPLAC is a very worthwhile initiative to which the judiciary should be lending its full support,” he said.
He said there was nothing before the Senior Magistrate to suggest that Cabinet did not have power to establish the FPLAC.
As a law practitioner holding a current practicing certificate, she had a statutory right to appear as Counsel before the Courts, whether she was a civil servant or not.
“The Senior Magistrate’s concern that as a civil servant Mrs. Fa’anunu is not independent of the judiciary is misconceived,” the judge said.
“The Senior Magistrate appears to have considered the judiciary a part of the Ministry of Justice. The judiciary is not part of the Ministry of Justice nor is it any part of the civil service. The Judges of Tonga are not employed by the Ministry of Justice. The judiciary is the third branch of Government acting independently of the executive (of which the Ministry of Justice is part) and the legislature. The independence of the judiciary is enshrined in the Constitution.”
He ordered the Chief Magistrate to immediately set the down the action brought by Fa’anunu for hearing.
He also directed the Magistrate’s Court to accept for filing all actions filed by the FPLAC.
