Only neutral judicial officers can provide an independent judiciary [1]
Friday, May 14, 2010 - 14:17. Updated on Monday, September 9, 2013 - 18:40.
Editor,
I would like to reply to a letter "Tongan and American Judiciary Differ over Abortion" (12/05/2010).
There are a few things which I would like to point out. Firstly it is correct that both the Tongan and American judiciary differ. No doubts about that. In the case of Tonga, the justice system model appears to mirror the common law system as is the case with many countries having common law jurisdiction.
As far as I could recall while in law school, parliament is the arm that makes the law, while the judiciary is to interpret and apply the law. While in America, the appointment of judges may be entangled with politics, other common law jurisdictions in the Pacific region have realized that the same cannot be adopted neither can they afford to allow the government of the day to deeply participate in the appointments of judicial officers to the bench. The solution was to establish a independent body or a commission for political neutrality if you wish, to take care of such matters. Many common law jurisdictions have adopted this approach and in fact it has worked out well so far. While is true that legal ideology is underpinned by various philosophy and values, the appointment of judicial offices must be seen as neutral and remain neutral. You cannot have appointments of judicial officers infested with politics and then later expect the judiciary to fully function without political interference especially in small developing nations in the Pacific.
In the case of the former Attorney General, it unfortunately that sound advise was ignored. As mentioned in an earlier letter, if the Government is so well versed with the law, then the portfolio of the AG should be abolished. In any case, its not new to our ears, the former AG 'Alisi Taumoepeau faced similar struggles when lending legal advice to the government. I think we all know how that ended . . .
It doesn't matter whether it be a brown, white or black AG, its hard convince people that things will change for the betterment of all citizens if this is current way of doing things.
On contentious issues such legal ideologies, abortion, euthanasia, and the like, I don't see why waste time pondering on such issues when we can't even solve the host of problems that are much closer to home such as the culpability of those behind the Ashika Tragedy, the independence of the judiciary, migration of well educated Tongans and most important, teaching those in leadership not to make the water more muddier that it already is.
I have much more to say but that is for another day
respectfully
F. Kavaha'apai
frekava2009 [at] gmail [dot] com ( frekava2009 [at] gmail [dot] com)