Lord Chief Justice slams senior magistrate’s decision to turn away legal aid case

    'Oku 'i lalo ha fakamatala faka-Tonga

    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.

    1 COMMENT

    1. Kuo fakaanga’i lahi ‘e he Fakamaau’anga Lahi ha tu’utu’uni ‘a ha fakamaau polisi Mā’olunga ‘o ne ta’ofi ke loea’i ‘e ha loea mei he senitā ki he Family Protection Legal Aid ha hopo.

      Ko e loea eni ko e fefine ko F Fa’anunu pea’ ne fakangāue’i ia ‘e he Potungāue Fakamaau’anga’ ke ngāue ‘i he senitaa’ ni.

      Ne ne ‘i he fale hopo’ ke taukapo’i ha fefine na’e hopo mo hono husepāniti’ fekau’aki mo e totonu ki he’ena fānau’.

      Ka ne pehē ‘e he Fakamaau Polisi’ ia ne ‘ikai ko ha sino fakalao ‘a e senitaa’ ia pea ko ia ai ‘e ‘ikai loea ‘a Fa’anunu ia koe’uhi he ko e taha ngāue fakapule’anga pe ia.

      Ko ia ne ‘ikai ke ne tali e loea ‘a Fa’anunu.

      Ka ne fakaanga’i ‘eni ‘e he ‘Eiki Fakamaau Lahi’ ‘o ne pehē ne ‘ikai ha totonu ‘a e fakamaau polisi’ ke ne fakafisinga’i ha fokotu’u fakalao meia Fa’anunu pe te ne ta’e tali ha fa’ahinga kole mei he senitaa’.

      Ko e fu’u me’a mamafa fau ia ki ha fakamaau ke ne ta’e fie fanongo ki ha keisi ‘a ha taha tukukehe ‘a hono mahu’inga’, ko e me’a ia ‘a e ‘Eiki Fakamaau Lahi’

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