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Is it legal to pass legislation before it's written?

Nuku'alofa, Tonga


By Pesi Fonua

The legality of parliament's voting on a very important motion and two reform bills legalizing Political Reform has become an issue that the Tonga Legislative Assembly has to address in order for the proposed political reform and the November 25 parliamentary general election to proceed.

It was unprecedented for the House on April 20 to pass an amendment to a motion concerning electoral boundaries without knowing what the amendment was going to be. The amendment had not been read in the House or voted on, before the House passed the motion along with the intended amendment, which was to be drafted later.

So, effectively, the House was passing and voting on an amendment before it had been written.

This unusual process continued through the next major decision before the House on the evening of April 20, which was an important Bill to Amend the Constitution in order to make Amendment to the Electoral Act. This was not debated upon before they voted to pass it. At the same time they also handed over the drafting of the amendments to the Electoral Act to the Minister of Justice with their trust that he would do a good job, and then the House voted and passed the future amendment before he had even drafted it.

On the same day a Bill for the Establishment of a Boundaries Commission was passed without being explained or debated. Again it was passed with trust that the Minister of Justice would do a good job of drafting it and, once again, passing legislation that had not been written.

So is it legal to pass legislation before it's written?

We think not.

Which set of rules?

For a start, one must ask which set of Rules for Proceedings of the Legislative Assembly is the Tongan parliament actually using? Are they using the 2004 Rules for Proceedings posted on its website, or are they using, perhaps, the new set of rules that the Law Committee has been working on for the past few years, which has not been formally passed by the House.

On April 20 the House was dealing with some important and nation-changing issues, none other than the introduction of a new Electoral System, which calls for the setting of boundaries for constituencies. If political reform is the real objective then it is vitally important for the House to be in full control of its law-making process.

Instead, we have an unprecedented situation where the House voted to pass the Prime Minister's motion including an amendment that had yet to be drafted.

Normal procedure would be for the House vote on the amendment first, then, if the amendment is passed, then vote again on the Motion with the amendment.

Constitutional amendment

It wasn't that the House didn't know what they were doing. It is clear from the minutes that members were fully aware that they were passing an amendment that had not been drafted. They were also aware that they did not understand the bills and had not debated them before raising their hands in unison.

The People's Representatives and the Nobles' Representatives were so eager for the House to pass A Bill to Amend the Constitution in order to make Amendment to the Electoral Act; and A Bill to Form a Boundary Commission, that they abandoned debate.

In the Minutes, People's Reps 'Akilisi Pohiva and 'Isileli Pulu are on record saying that it was most unusual for the House to pass bills without even understanding the bills and the proposed amendment, but they both expressed their trust in the Minister of Justice and the Cabinet to draft good bills. Pohiva even went further and spoke to the nation: "I want the people who are listening to this live broadcast tonight and let it be carved into the history of this country that tonight we are united and we have achieved what all of us have been working toward for years."

That's odd, because at that point the amendment had not been written and the bills had not been drafted.

Pohiva went on to say how that he was sure that the House had become united. "For the Ministers you may complete our work with our trust and that of the people, we are leaving the responsibility of drafting these Bills in the palms of your hands to complete," he declared.

So one, really, must ask: is this legal?

Procedure in the Tongan Parliament on that final evening session on April 20 was so unusual that one can't help but wonder if the influenza inoculation that members were given at lunch time that day had an impact on their decision-making abilities.