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Prime Minister wants more Constitutional power

Nuku'alofa, Tonga

Dr Tu'i Uata, Hon. 'Akilisi Pohiva, Dr Pohiva Tu'i'onetoa, St George Building, 4 April 2018.

By Pesi Fonua

The Prime Minister, Hon. ‘Akilisi Pohiva, made conflicting statements about Tonga’s political reform and the administration of law and order in the country this week, during his latest bid to take over executive powers that were given by parliament to the Privy Council under Constitutional changes in 2010.

The Prime Minister appeared to be confused about the status of the 2010 political reform, while answering questions during a press conference that he called on Wednesday, 4 April. The presser went on for nearly two hours at the St George Government Building in Nuku'alofa and, in the end, the PM had to be corrected by his new advisor, Lopeti Senituli.

The PM repeatedly denied that parliament had passed a political reform – a Constitutional Amendment that transferred the executive power from Cabinet to Privy Council (to appoint the Attorney General, Police Commissioner and the Judges), in 2010. The PM, after being corrected by Lopeti, in the end admitted that this particular reform was, in fact, passed by parliament in 2010 [Act of Constitution of Tonga (Amendment) (No.2) Act 2010]. But the PM said he did not support the legislation.

His lapse of memory on the key subject of his press conference doesn't look good for a Prime Minister.

After all, the PM called the press conference because apparently he wanted to explain that his Cabinet wants to claim the executive powers from the Privy Council. His main point was blaming the Sevele government for instigating the transfer of power to the Privy Council, while at the same time denying that it was approved by the House.

Wrong again

The Prime Minister also asserted in a written press release that when Dr Fred Sevele "came into power in 2010", he made changes and transferred executive power from the Cabinet to the Privy Council.

Wrong again.

For a start, Dr Feleti Sevele ended his term as PM in December 2010. He was the first commoner to be appointed as Prime Minister on 30 March 2006.

Then Lord Tu'ivakano was elected as the new PM on 20 December 2010, following Tonga’s first election under Tonga's newly reformed system of government.

The PM repeatedly stressed that Dr Sevele and his government had transferred to the Privy Council the executive power that was supposed to be designated to Cabinet under a political reform proposed in 2006 by the National Committee for Political Reform (NCPR) also known as the “Tu'ipelehake Committee”.

When answering questions, the PM asserted that the decision was neither tabled nor approved by parliament.

The Prime Minister repeatedly stressed that what his government was striving to do, was to return to Cabinet its executive power that was proposed by the NCPR in 2006.

We are not trying to take away the power of the Privy Council, we are trying to transfer back to Cabinet its executive power,” he said.


He repeated that what he and his government are doing is following on what the NCPR proposed in 2006 and the government of Lord Tu'ivakano and his Minister of Justice, Clive Edwards had initiated later.

On 28 August 2014, parliament passed bills presented by Clive Edwards to amend the Constitution, and for a Judicial and Legal Service Commission Act.

At the time, the independence of the judiciary was a matter of great concern to members of the Tongan Parliament, but after weeks of debating over the issue, a majority of the MPs were convinced that the best solution would be to abolish the involvement of the Lord Chancellor and the Judicial Appointments and Discipline Panel in the selection of judicial and legal officers.

But those 2014 bills are still with the Privy Council, awaiting the signature of consent by the King.

According to the PM, his Minister of Justice had also tabled bills into parliament that were passed by the House, similar to bills that were tabled by Clive Edwards. They were passed by the House and were still awaiting the signature of consent by the King.

The Prime Minister said that seven bills passed by the House were awaiting the consent of His Majesty.

The PM had suggested that four or five members of the Cabinet should also be in the Privy Council.

He blamed the state of lawlessness in the country [on the independence of the Police Commissioner] because he said the Minister of Police does not have any power in the running of the Ministry. All the executive power is with the Police Commissioner, who is appointed by the Privy Council.

He expressed his concern over the use of drugs and the rise in violent crimes. He claimed that government knew the sources of these drugs and crimes, and claimed “but there is nothing that we can do about it.”

The independence of the Police Commissioner has been an ongoing issue. The current Minister of Police is a son-in-law of the Prime Minister who resigned because he was not happy with his working relations with the Police Commissioner. The resignation was turned down by the Prime Minister.

When the Prime Minister was asked if he was going to call for public consultations on the issue of the executive powers, the PM did not favour public consultation, "too expensive", he said. He favoured working closely with the Privy Council. He suggested a meeting with Lord Dalgety and Lord Tupou.

PACER Plus quandary

At the Press conference Matangi Tonga again asked the Prime Minister what happened to the PACER Plus agreement, since his signature had been discredited by the Privy Council, and the Attorney General had told him that he had no right to sign it for Tonga last year.

The Prime Minister replied that consultation was still going on.

He also revealed that when he was driving to the meeting to sign the PACER Plus agreement with other Pacific leaders in Nuku'alofa, he had received a text on his cell phone from "a clerk" telling him not to sign the agreement.

Hon. Pohiva said he was confused because he was already on his way to meet the other Pacific leaders to sign the agreement, so in the end he decided he would sign it and then face being told-off by the Privy Council.

Tonga's reforms

Tonga's new system of government, introduced in 2010, is made up of the Parliament, the Prime Minister and his Cabinet and the King in Council.

There is also a Great Officer of State known as the Lord Chancellor. He is responsible for the preservation of the impartiality and independence of the Courts from political influence or intimidation. He is also responsible for the safety and protection of the courts and the judges.

Judges and the Lord Chancellor are appointed with advice from the Judicial Appointments and Discipline Panel (JADP); the membership of which comprises of the Lord Chancellor, the Lord Chief Justice, the Law Lords-in-Waiting and the Attorney General.

The JADP is also responsible for the appointment of the Police Commissioner, Electoral Commissioner, the Attorney General, Electricity Regulator Commissioner and the Anti-corruption Commissioner.

The Prime Minister was a member of parliament at the time when Bills for the amending of the Constitution and legislation to make this reform possible were tabled into parliament.

Under the Tonga Police Act 2010 the power to appoint and to dismiss a Police Commissioner rests with His Majesty in Council and not with the Cabinet. The Tonga Police Act 2010 was one of the reforms put into place during the formation of the new system of government. It makes the police answerable to the courts and gives greater protection to the public. It also separates the police command from the politicians.

More reading:

April 27, 2010 November election in limbo as House passes the buck on political reform legislation

June 13, 2010 Is it legal to pass legislation before it's written?