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Cabinet tries to take control of Judiciary

Nuku'alofa, Tonga


From the House by Pesi Fonua

A move by the Tongan government to shift the selection of the judiciary from the King in Council to the Cabinet and the Legislative Assembly has stirred up a confrontational debate about the independence of the judiciary, in the Tongan parliament during the past few weeks.

Since the introduction of a more democratic system of government for Tonga in 2010, when the King relinquished his executive power to the elected Cabinet and Legislative Assembly, the administration of the judiciary had become a prerogative of His Majesty in Council.

The introduction of the titles for the Lord Chancellor and Law Lords, and the formation of the Judicial Appointments and Discipline Panel was a creation of the late King George Tupou V in what has been hailed as an attempt to keep the judiciary independent from the politicians.

However, according to the Minister of Justice, Hon. Clive Edwards, it has been very difficult to work under such a system where the Lord Chancellor is considered to be the head of the Judiciary, while the Minister of Justice is the head of the Ministry of Justice. There was also a financial problem because the Judicial Appointments and Discipline Panel also ventured out to set their salaries to be funded by the Ministry of Justice.

The members of the Judicial Appointments and Discipline Panel currently are:

  1. The Lord Chancellor, who shall be the Chairman
  2. The Lord Chief Justice
  3. The Attorney General
  4. The Law Lords (legal experts that the King may appoint from time to time).

The responsibility of the Judicial Appointments and Discipline Panel is to recommend to the King in Privy Council:

  1. The appointment of eminently qualified persons to the Judiciary, and as Lord Chancellor and to any other office that the King requires;
  2. The disciplining of members of the Judiciary;
  3. The dismissal of members of the Judiciary for bad behaviour through gross misconduct or repeated breaches of the Code of Judicial Conduct;
  4. The remuneration and terms of service of members of the Judiciary;
  5. A Judicial Pensions Scheme;
  6. A Code of Judicial Conduct;
  7. The appointment of assessors to the Panel of Land Court Assessors.

Clive told the House that it had got to situation when he, the minister, was expected to run around and do clerical tasks for the Lord Chancellor.

To find a solution to this unusual working condition Clive said that government had sought assistance from the Commonwealth, and a legal expert was in Tonga to assess the situation.  Clive said that his finding was that the administering of the judiciary by the Privy Council was undemocratic and unconstitutional.

Therefore the two bills that Clive tabled with parliament, one to amend the Tongan Constitution and the other, a Bill for an Act to constitute a Judicial and Legal Services Commission.

In summary, under the amendments of the Constitution and the Judicial and Legal Service Commission Act the Lord Chancellor would be replaced by the Chief Justice, and the Judicial Appointments and Discipline Panel would be replaced by the Judicial Services Commission.

The legislative changed proposed also to enable the Prime Minister to nominate an Attorney General to be appointed by the King. The Attorney General then would automatically become a member of the Cabinet and the Legislative Assembly.

The members of the proposed Judicial Services Commission are:

  1. The Chief Justice
  2. A representative of the Public Service Commission
  3. The President of the Law Society
  4. Two members to be nominated by the Minister of Law
  5. The CEO of the Ministry of Law, who will be the secretary of the Commission.

The debate on the two Bills, No. 19 and No. 23 was suspended for a number of days because the Minister of Justice, Hon. Clive Edwards was not present in the House, before resuming on 21 August.

Lord Nuku, supported by Lord Tu'Iha'ateiho and Lord Tu'ilakepa expressed their concern over the independence of the judiciary if the selection of the Chief Justice, and the Attorney General was allowed to be transferred from the Privy Council to the Prime Minister and the Cabinet.

Lord Nuku was also not in favour of the Attorney General, the legal adviser for the Cabinet and the Legislative Assembly, to automatically become a member of the Cabinet and the House once appointed as AG.

On the other hand, some of the People's Representatives led by Lisiate 'Akolo, also did not think it was fair for an unelected member as the AG to automatically become a member of the Cabinet and the House.

At the end of a long winding debate, the House voted to reject the Amendment of the Constitution for the Attorney General to become a member of the Cabinet and the Legislative Assembly once appointed as the AG.

The process of voting on the rest of the Bills was disrupted when the Deputy Prime Minister moved for the Bills to be returned to government for further readjustment before being resubmitted to parliament. It was accepted and the House was closed at about 6:00 pm on August 21.