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Tonga's signing of PACER Plus "invalid" says Attorney General

Nuku'alofa, Tonga

Prime Minister 'Akilisi Pohiva, flanked by his ministers Hon. Dr Pohiva Tu’ionetoa (right) and Semisi Fakahau (left) at today's media conference. 30 August 2017.

The Tonga government's signing of the PACER Plus Trade Agreement is not valid as it was not presented to the King for approval, the Acting Attorney General, ‘Aminiasi Kefu said today, amid a growing row over government's apparent failure to follow proper protocols.

'Aminiasi told Matangi Tonga that the government did not seek his advice in his capacity as Acting Attorney General on the PACER Plus agreement and he only found out from media articles that the agreement was signed on 14 June this year.

Australia, New Zealand, and eight Pacific island countries signed the Pacific Agreement on Closer Economic Relations Plus (PACER Plus)  in Nuku’alofa, Tonga, eight years after negotiations for the trade and development deal began.

At a press conference called by the Prime Minister today, his Minister of Commerce, Consumer, Trade, Innovation and Labour, and Minister for Revenue and Customs, Hon. Dr Pohiva Tu’ionetoa defended the signing by the Tonga Government of international agreements. He had a different idea of the protocol.

 “The process is to sign first and then the ratification. The ratification will be from the King and this step has not been done,“ he argued.

The issue is one of several issues of concern that led to an unprecedented move by the King to command dissolution of parliament last week.

The Speaker of Tonga's Legislative Assembly Lord Tu'ivakano had brought the issues to the attention of King Tupou VI, before the dissolution of parliament on 24 August.

Crown law

The Acting Attorney General, 'Aminiasi Kefu told Matangi Tonga today that the government must adhere to a legal approval process when signing international treaties or agreements, which must ultimately be approved by the King.

The agreement was signed without approval of His Majesty under clause 39 of the Constitution. So it is not valid until the King approves it,” he said.

To obtain the King’s approval for an international treaty/agreement, the relevant government ministry must present it to Cabinet for policy "approval to sign, accede or ratify."

'Aminiasi said that if Cabinet approves the agreement, it “submits the recommendation to sign, accede or ratify to the King in Council to approve. If the King approves, then an instrument of signature, accession or ratification is issued by His Majesty the King to be deposited with the treaty depository. The King designates the relevant authority to deposit the instrument.”

Controversially, at a media conference this afternoon, the civil servants who negotiated Tonga's signing of the international agreement for Tonga admitted that they were actually aware of this process.

‘Anisi Bloomfield, Tongan negotiator for the PACER Plus agreement.

Anisi Bloomfield, who was Tonga's deputy chief negotiator, for the signing of the PACER Plus Agreement, said they knew of this process, but he saw the signing as an opportunity for getting funding to pay for a national consultation.

We are aware of the [approval] process. We understood from the beginning that the signing of the agreement is not actually ratifying the agreement.”

He said they could sign the agreement but argued that being a signatory "does not mean that Tonga is committed to implementing it."

When we do the ratification that is when Tonga will implement this agreement. We knew this beforehand, that is why Cabinet went ahead and signed the PACER Plus because they knew the ratification is when it will go to the King to say yes or no.”

The process that required to be completed was a national consultation but this had to wait for Tonga to first sign the agreement because this is an opportunity for money to come in to do this work.”

Now we have signed that, now the door opens for assistance to come in to carry out the national consultation and then we would know from there whether we go in or we still remain out to implement PACER Plus.”

'Anisi, currently the CEO for Revenue and Acting CEO of the Ministry of Labour, Commerce and Trade, believes the signing of the agreement remains intact because "there is no impact to Tonga."

In my view the signing was valid. My question is whether it’s valid or invalid it has no impact at all on the country."


 Hon. Dr Pohiva Tu’ionetoa the Minister of Commerce, Consumer, Trade, Innovation and Labour, and Minister for Revenue and Customs, sat next to the Prime Minister at today's press conference today. He believed that a signatory is different from ratification.

These are two different steps, we have not ratified either the PACER Plus or CEDAW.”

The process is to sign first and then the ratification. The ratification will be from the King and this step has not been done.“

Clause 39 of the Constitution of Tonga refers to international treaties - Act of Constitution of Tonga (Amendment) (No.2) Act 2010.

"It shall be lawful for the King to make treaties with Foreign States provided that such treaties shall be in accordance with the laws of the Kingdom. The King may appoint his representatives to other nations according to the custom of nations."