Judicial reform awaits King's consent

FROM OUR ARCHIVES

By Pesi Fonua

An attempt by the Ministry of Justice to reform Tonga's judicial system is on hold, awaiting HM King Tupou VI's consent to amendments of the Constitution and the Judicial and Legal Service Commission Act, that were passed by Parliament at the end of August.

Hon. Clive Edwards, the Minister of Justice told Matangi Tonga last week that the reform that they had introduced by amending the Constitution and the reinstating of the Judicial and Legal Service Commission Act was basically to revert the system to be democratic and in line with the Constitution.

Clive also expressed his concern that the Law Lords, the legal advisers to the king, had been trying to block the reform that he had been trying to introduce. He was aware of a note from the Privy Council stating that the King had approved to defer until 2015 the making of any decision on the review of the Constitutional Provisions relating to the Judicial Structure of the Kingdom of Tonga, which was prepared by the Ministry of Justice.

Clive believed that the "blocking" would lead to tensions. “It would be an unpleasant situation if His Majesty in Council will be in confrontation with the Executive Government,” Clive said.

He said that the ministry had brought in a legal consultant in constitutional law, Peter J. Pursglove, funded by the Commonwealth Secretariat, to review the constitutional provisions relating to the  judicial structure of Tonga, and they had made arrangements for the consultant to meet with the Law Lords. But the Law Lords did not turn up to the meeting.

The findings of the review were shocking. In his summary Pursglove stated, "The present Constitution of Tonga can lay claim to being the most poorly structured and drafted Constitution of any country in the Commonwealth. When one considers the justifiable pride felt by Tongans everywhere in the First Constitution handed down by King George Tupou I in 1875, this is truly a very sad state of affairs in a Kingdom that has one of the world's oldest surviving written constitutions. The provisions in the Constitution relating to the Judiciary are particularly lacking in both structure and content to the extent that they are not only unworkable but are totally incompatible with the principles of constitutional monarchy and democracy upon which the new Constitution of 2010 was supposed to have been founded."  ('Review of the Constitutional Provisions Relating to the Judicial Structure of the Kingdom of Tonga', April 2014).

The Review also noted that before the Constitutional reforms of 2010 the Kingdom of Tonga had a well-functioning Judiciary that was independent and operated in accordance with recognised Constitutional Law standards, when the Tongan Judiciary could be compared favourably with the judiciaries of other Commonwealth states. The Constitutional reforms of 2010 made sweeping changes to the Judiciary that divided the justice sector.

Awaiting Royal consent

The Chief Executive Officer of the Ministry of Justice, Susana Faletau, said that when they were informed by the Privy Council that the judicial reform was deferred to 2015, the Bills to Amend the Constitution and for the Judicial and Legal Service Commission Act had already been tabled into parliament and were being processed by the House.

The Bills that were passed by Parliament at the end of August abolished the Lord Chancellor, and replaced the Judicial Appointments and Discipline Panel with a Judicial Services Commission. (See Parliament abolishes roles of Lord Chancellor and judicial panel).

When the four-year term of the Tongan parliament was closed on 11 September a total of 23 Bills, including those for the reforming of Tonga's judicial system, and for the appointment of an Anti-corruption Commissioner that were passed by parliament, were still awaiting the Royal consent.

Split ministry

Clive said that when he was appointed as the Minister of Justice in 2011 he came into a ministry he described, as a "split ministry", where the Lord Chancellor administered the courts and the Minister administered the ministry and its budget.

Hon. Clive Edwards, Minister of Justice

He said that one of the difficulties of working under such a split ministry was that the Judicial Appointments and Discipline Panel (JADP), a committee of the Privy Council was not a part of the executive government, though they have the authority to select judges and judicial officials and set their salaries, but it was the responsibility of Ministry to find the money for their salaries.

He said that the difficulty of working under such a structure was highlighted when the JADP selected Justice Cato to be a Supreme Court judge. But when they approached the New Zealand government to pay for Justice Cato's salary, "the New Zealand government refused to deal with them."

The policy of foreign aid donors such as New Zealand is to deal directly with the executive government, so when Clive approached the New Zealand government, seeking funds for Justice Cato's salary they agreed to pay. 

He said that trying to finance the salaries that were set by the JADP was far beyond the capability of the Tongan government and with the existing split nature of the Tongan judicial system, Australia was no longer funding the salaries of Supreme Court judges and the Attorney General.

Clive said that that was why the two Attorney Generals, Mr John Cauchi and Mr Neil Adsett resigned, "because government could not pay their salaries".

Under the Constitution the holders of the posts of Lord Chancellor and Attorney General must have the qualification as a Supreme Court judge, and the JADP had set the salary of the Chief Justice of the Supreme Court at NZD$380,000 (about TOP$600,000) per annum.

The salary of the current Chief Justice of the Supreme Court is paid by the Tongan government.

Clive said that in addition to the rehiring of Chief Justice Scott by the JADP it had also hired one of the Law Lords, Lord Tupou as one of the judges of Tonga's Court of Appeal. He said that both Chief Justice Scott and Lord Tupou are members of the JADP, and so “there is definitely a conflict of interest.”

The fact that the Lord Chancellor and the JADP are operating outside of the executive government, but they are selecting judges and judicial officials to be appointed by the King, independently from the executive government, according to Clive makes it very difficult for Tonga's judicial system to function efficiently.

Political reform

The split ministry came into being following the political reform and the introduction of Tonga's more democratic system of government at the end of 2010.

Under this new more democratic system of government, the executive power of the His Majesty in Council was transferred to an elected Cabinet with a Prime Minister that was elected by the 26 elected members of the Tongan Parliament, 17 were elected by the people and nine elected by the nobles of the realm.

According to a review of Tonga's Legal Structure that was carried out by the Ministry of Justice, a component of this political reformation that was never presented to the public during public consultation was the judiciary.

In what has been presumed as an attempt to make the judiciary independent from political interference, the selection of judges and judicial officials was left for the King.

The late King George Tupou V created a judicial structure that was unique for Tonga. He established entities known as the Lord Chancellor and the Law Lords.

The Lord Chancellor selects the Chief Justice of the Supreme Court and the Attorney General to be appointed by the King.

The Lord Chancellor is the chairman of the Judicial Appointments and Discipline Panel (JADP), a committee of the Privy Council which is responsible for the selection of judges and judicial officials.

It also has the authority to recommend the appointment of the Attorney General, the Police Commissioner and the Electoral Commissioner.

The current members of the Privy Council are:

1. HM King Tupou VI (Chair)
2. Lord Dalgety
3. Lord Tupou
4. HMAF Commander, Brig General Tau'aika 'Uta'atu.

The current members of the JADP are:

1. Lord Chancellor (Chair)
2. Lord Chief Justice
3. Attorney General
4. Lord Dalgety
5. Lord Tupou