Tonga needs an independent judiciary [1]
Friday, May 14, 2010 - 11:30. Updated on Friday, April 11, 2014 - 23:58.
Editor,
Mr. Senituli Penitani throws in the "abortion" issue to the discussion of judiciary independence hoping to "muddy the water" (Tongan and American...12 May 2010).
Please do not spin my letter which was focused on "Judiciary Independence." Mr. Penitani and his government colleagues seem to love to recite Clause #80 of the Constitution as if it's part of the Ten Commandments, but they all refuse to acknowledge that Clause #30 does exist.
Clause #80 simply says, ". . . the Chief Justice of Tonga and of such other judges as MAY be appointed from time to time by the King with the consent of Privy Council . . . " The key word here is "may" be appointed . . . it is not mandated because attempts have been made in the past to free the Judiciary from the Executive but to no success (Latukefu, 1975).
Clause #30 explicitly says, "The Government of this Kingdom IS DIVIDED in three Bodies: The King Privy Council and Cabinet (Ministry); The Legislative Assembly; the Judiciary." Don't know about you Mr. Penitani, but when something "is divided" in three, they all become independent parts called Three Branches of Government (Tongan Parliament, 1988; Latukefu, 1974).
Abortion, and Which System?
Reminding Mr. Penitani that I never stated a preference for the American System of justice. I wrote that whichever system Tonga selects (Westminster: British, NZ, etc. American, or Australia: hybrid American-Westminster), they all share a common respect for the "independence" of the Judiciary.
Mr Penitani seems to want the "abortion," or any other social issue to be decided by the courts merely on moral grounds while ignoring the legal and utilitarianism concerns. The Judiciary independence in the US System gives judges the right to make laws from the bench using common law, and past cases without fear of the Executive Branch terminating their employment.
Americans treasure their "individual privacy," and many felt that their "pro-choice" right to have an abortion is a personal decision. Many Americans of the "pro-life" believers disagree but nine Supreme Court Judges vote on all decisions in a democratic way.
Church vs. State in Tonga
Mr. Penitani also seems to want the Judiciary Branch to be ruled by a Judeo-Christian theocracy. Last time I checked Tonga's Constitution promises freedom of religion. Tonga is not a theocracy (Latukefu, 1974).
We have had many Papaalangi Chief Justices who served Tonga well.
The color of their skin, or the church they attended do not matter in the courts of law. Should Tongans become chief justices, I'm sure they will judge cases prudently according to their affiliations of jurisprudence and belief in justice.
References: Latukefu, S. (1974). Church and State in Tonga. Australian National University Press: Canberra.
Latukefu, S. (1975). The Tongan Constitution: A brief history to celebrate its Centenary. Nuku'alofa, Tonga: Tonga Government Printer.
Parliament of Tonga. (1988). The Constitution of Tonga. Retrieved May 03, 2010, from the Government of Tonga
Sione Akemeihakau Mokofisi