I am sorry to be writing again, but as I am not in the Kingdom right now, and there was a call for comments on the proposed Bills, I thought it my duty to address the Legal Aid Bill, as I did the Food Bill and the Water Bill.
The Legal Aid Bill sounds like a good idea – providing the poor with access to legal advice, but there are several aspects of it that are big problems.
First, the Bill sets up a Legal Aid Board. That Board is funded in part by: “moneys that are donated to the Board by external aid or benevolent organizations [. . .] Moneys may be paid to the Board generally or for any specific purpose, including for the provision of legal aid to certain persons or classes of persons.” So, interested individuals or special interests groups can give unlimited amounts of money to tie up the Courts in any cause they want. For example, pro-abortion groups based in New Zealand, or Australian agri-business who want to change Tonga’s land laws, or Chinese exporters who want to challenge trade tariffs, can send unlimited amounts of money to lodge challenge after challenge to Tongan laws.
Meanwhile, the cash-strapped Government will have to use valuable resources to protect its sovereignty, leaving little funds for the prosecution of serious.
And who is on this Board? “The Board shall appoint a Director of the Legal Aid Office who shall be responsible to the Board for the efficient and effective operation of the Legal Aid Office. [. . .] The Board may arrange for the secondment of officers from within the public service of Tonga and may accept volunteers or secondees from external organizations.” So, the director of the Board can be non-Tongan, and an unlimited amount of its staff can also be non-Tongan.
This essentially sets up a new pole of power within the Tongan legal system that can be funded and controlled by foreigners. And the Bill protects these people from public scrutiny: “The exercise by the Board of its discretion to provide or refuse legal assistance to any person in any particular case shall not be subject to review or challenge.” There is no reason for these sections of the Bill. The Bill should state that anyone can give in to a general fund, but that no specific causes can be funded. Also, all funding sources must be transparent – with lists of donors and amounts given published quarterly. All allocations should be decided in a public forum, and subject to review by a citizen panel. All of this is common practice with Legal Aid in other countries.
Overall, there seems to be a pattern developing with at least three of the new proposed Bills (Food, Water, and Legal Aid).
The pattern is:
- Identify a sector that is currently not very well regulated (food, water, access to legal aid).
- Introduce a Bill that looks like it will address a problem (making sure food is safe to eat, making sure water supply is safe and supply is managed, making sure those who can’t afford it have access to lawyers). So far, so good. And the Bills do address some of those concerns. But:
- Embedded in the Bills are vast powers for the Government to control those areas including, in the case of food and water, huge fees and prison terms that have the potential to be used for personal/political ends. For example, the new ‘Food Police’ will have the right to stop, search and seize without a warrant, opening up the possibility of major intimidation and corruption.