by Pesi Fonua

“I don't think that Tonga is any different from anywhere else, but the trouble is that people, once they get power, they use it so often without regard to the rules... The reasons why rules are there, why the restrictions are there is to protect the people who do not have the power, and against whom the power is exercised, and that is where the courts are terribly important.”

Tonga's Chief Justice, Mr Justice Gordon Ward left Tonga at the end of June to take up a position as the chairman of the Court of Appeal in Fiji.

He has served two terms in Tonga, first becoming Chief Justice in 1992 and serving until 1995 when a ninety year old agreement between Tonga and Britain ended the right of the British to appoint the Chief Justices for Tonga and to subsidize the salary of British judges. Mr Justice Ward left Tonga becoming the resident judge in Cyprus until 1998 when he was re-appointed by the Tonga government as Tonga's Chief Justice. He resigned earlier this year, before the end of a 10 year contract.

The relationship between Chief Justice and the Tonga government became strained when he declared illegal and unlawful some Privy Council Ordinances in the government's attempts to ban the Taimi 'o Tonga newspaper.

Mr Justice Ward was interviewed by Pesi Fonua on 25 June 2004 a few days before leaving for Fiji. In this interview the Chief Justice notes that Tonga's law is quite clear on the exercise of the king's prerogative power; he also comments on the loss of Tonga's Statutes of Application to British law that has left Tonga with serious gaps in its laws that are only now being identified.

Justice Ward was not made to resign but he is saddened that controversy and public comments over the last year have left many people with the wrong impression about the judiciary.

Now you are leaving us again, what is your view on the status of the judiciary system in Tonga at the moment?

When I was here before I said that the judiciary was left alone and was independent. I think the only difference has been that the sort of comments that were made about the judiciary suggest that it hasn't been left entirely in the same way or it isn't allowed to be just independent in the same way. I am sure the judiciary itself is fully independent still, just as ever it was.

The problems with the comments was that they must have left a number of members of the public feeling that the judiciary was not independent because of the comments, and I think that is a very sad thing.

I think when you left last time you were looking at introducing a Probation System?

I think one has to say that there is still a very limited range of sentencing that one can give to criminal people but it has improved slightly. I think the Criminal Offences Act could do with an overhaul, and that is quite a big thing. Our range of powers have improved and the biggest change that I have noticed coming back is the system is more efficient, the registry is doing a much more efficient job than they did, and the lawyers are performing better, so there has been a definite improvement.

You are leaving Tonga this time after an unpleasant relationship between government and the judiciary. This relationship is public knowledge and I wonder if you would like to make a comment about it?

One thing that I have to say is that I am not leaving because of the things that happened last year. I felt, particularly when they went on, that it was most important that they couldn...’t be seen to make me leave. To a large extent I have done this time practically six years, and a job like the Appeal Court in Fiji is a different type of work. The time does come that you have to move on, it was not a particularly pleasant time but it wasn't the cause of me going.

Are you going to work just as hard as you are doing here?

No where near, not as much. The pressure of work here, and Judge Ford carries it as well, is terribly high, we virtually never write decisions during court time, we do it on our own time, it is just a very heavy pressure.

Do you think Tonga needs more judges in the Supreme Court?

I have suggested that we need a third Supreme Court judge, and actually at one time set up a scheme to reorganise the court and have a middle tier court. It was approved by Cabinet but then was changed again and I was surprised, but I think they need a third judge. I am told that they are bringing in a judge to fill the gap before the next Chief Justice comes, and also to stay for a few months to help with the back-log. It is not proper justice if a person has to wait too long for a case, it's not as bad as in some things but with criminal cases now they may have to wait a year not more, and that is far too long. Criminal work always seems to take priority, and so civil cases get put out of the list, they suffer, because they have every right to come to the court. I would like to see a third judge.

You mentioned that you are no longer in the Law Revision Committee. Going back to last year to the cases relating to number of ordinances that government put forward in an attempt to stop the importation of the Taimi 'o Tonga. If you were in the Law Committee, would it have made any difference to those ordinances?

No. I don't know if they went before the Law Committee. I think the Law Committee is really only there to make sure the laws are properly written, the decision on what laws should be made is done by the government. We don't really, in the law Committee say that this should be different, all we say is this isn't going to work from a legal point of view, or this is ambiguous, it's that sort of work. So the law revision committee would not have any say on the actual topics, but I have the feeling that they have not been before the law revision committee, but I may be wrong. But it was certainly after I was off the committee.

Following the declaration by the court that the ordinances were unconstitutional and therefore unlawful, there was the MPs accusation about your salary, (of being paid more than the amount which appeared in the government budget) Would you like to make a comment on that?

I think the only comment I would like to make about this is that the problem there was really communication. When it first came up, particularly the salary issue, I immediately gave instructions that all my salary should be revealed. There is no secret about it, but it took a long time for that to happen and, in fact, it was my staff who really took the step to get it settled on television. And the other point about whether I was properly appointed and whether the salary was properly passed has nothing to do with me, but it was put over as though it was something that I had done. I signed a contract with the government, and the technicality of how it should be implemented here is entirely up to government. So again once that came up, all it needed was a statement to say that, and the problem was that statement just did not come out in time. The lesson that comes from that is that if you leave things unsaid, unanswered then it can get unpleasant and I always say that the judges themselves should not get involved in answering those kind of questions, it is better for someone else to make that statement for them.

What is your view on the state of law and order in Tonga, there is a feeling that law and order is deteriorating by the fact that the speed and the process that one has to go through from when a crime is committed to when it is finally heard in court is too long?

I can't really judge that any more than the ordinary person, because once a case comes to court that is clearly one that has been dealt with. My own impression that Tonga is still a relatively law-abiding place compared to so many others, and certainly I'll notice the difference when I get to Fiji.

I only see cases that come to court. But as a member of the public I think things are still pretty good. I suspect many Tongans realise that there is a definite breaking down in the closeness of the family ties and to most Tongans I would think it must make them feel that things are going wrong and maybe to them that is why they feel that crime is worse.

World wide there has been a lot of interest in the treatment of minor offenders, in the case of Tonga what is your view on the treatment of minor offenders?

I think there is still a tendency to send minor offenders to prison too quickly. It is not a good way of dealing with first offenders for relatively minor things. I think that is where there could be more scope, but we are now using things like community service orders, probation, and suspended sentences that I think work quite well here, you don't have that many cases where a man has a suspended sentence which he breaks and comes back.

So you think suspended sentence helps correct offenders?

I often say to them when I give them a suspended sentence, that they have the choice of whether they go to prison. If they behave for two or three years it's suspended and they won't go to prison, but if they don't take the opportunity that we give them then they will go to prison. So really it puts it on them. If a person is a first offender, we all make mistakes, he has made a mistake and he probably regrets it bitterly, and if he can just have once chance to carry on his life as normal then he won't commit another offence. I think that is what is happens with a vast majority of suspended sentences.

Do you notice any change in the type and rate of crimes being committed compared to a few years ago?

The majority of crimes are just the same, but what I have noticed coming back is that there are more robberies, there are more armed offences, and you feel that the cases just show a little bit more real criminal sophistication. They are the sort of cases I think you see on videos and things like that and people get ideas from them.

The rate is increasing, but nature of the crimes, apart from a few, remain very similar, and one has to remember that Tonga probably has one of the least crime rates in the Pacific.

What about white-collar crime, money laundering and drugs related cases?

With white-collar crimes there has definitely been a slight increase in that. I think the big problem with white collar crimes is the tendency of Tongan people to forgive, and I am sure a lot of them result in the person being asked to leave the job and they don't come to court. We have had a number recently and they are a substantial sums of money involved, the impression that the court gets is that it is not a serious problem. but maybe that sort of crime is not coming to court. As far as international businesses are concerned the only thing that I have seen is the prevalence of drugs, but again the vast majority cases are cannabis, and grown here, there is no doubt about that. The big cocaine case was a warning, and the good thing was that the Federal Police from Australia came and helped our drug squad and it gave them a chance of doing a very complex case very well. I think if that kind of co-operation continues we have a chance of getting on top of the drug problem. Some of the other Pacific Islands are definitely are being used as drug distribution centres, and I don't know that we are, but the police know better.

Tonga retains the death penalty for some crimes, and I think last time we talked you were hoping that it would never happen in your time to actually sentence someone to death, and it looks like you have escaped again this time. How close were you in the past few years?

I can't think of a murder case we've had that would be getting towards that penalty, there is very little murder here, and again I don't know how it works out compared to other countries, but I have the impression there is very little murder. I always said that the death penalty is reserved for the very serious really nasty case, and I don...’t think we have any that have been anywhere near that, although there have been a number of serious cases. We have far more deaths from drunken driving and road accidents than we have from any other way, and that is a serious problem.

A new piece of legislation that was passed last year, does away with our usage of British Law, through the Statutes of General Application. What is the impact of that?

The whole provision was really a sort of a long stop, just to make sure that if we do have a gap in our laws we have got some law that we can fall back on. So long as the gaps are filled by our own law then there is no problem, but it has meant that there are some aspects of the law that do need to be passed here. I hope that they are getting on with doing that and I know there has been concern over the guardianship of infants, but a lot of the trouble is that you don't realise how much you fall back on provisions like that. At the moment I am not sure for example if the prosecution still has the right to amend an indictment in the middle of a trial, because that is covered by the English indictment rules. So it just means that there may be gaps left that need to be filled and until we see them, we often don't realise how many there are. The guardianship of infants is a big one.

I don't believe there is any bankruptcy law left, because we used to use the English Bankruptcy Act. So I don't know if there is any, unless they are getting legislation in now, and I am not up with legislation now because I no longer sit in the Law Revision Committee. So they may be getting some through there but at the moment I don't think there is any scope for anyone to declare themselves bankrupt. Also I think there may be some gaps in some Admiralty procedure.

So at the moment no one can declare himself bankrupt?

I don't think so because previously bankruptcy was always covered by the English Bankruptcy Act and that has gone.

The thing about that law [to repeal the Statutes of General Application], was that the first time I heard about it was when it was tabled into parliament. I think if Judge Ford and myself, had been asked for our opinion on that we would say that if government wanted to do away with English law that is alright, but to make sure that laws are there. It seemed to come in in a hurry and as a result we have those gaps. The whole thing came as a complete surprise to me.

With regards to jury trial, comments have been made about some of the decisions made by juries. It was even raised in the House, by the Minister of Justice casting doubt over a jury decision passed recently. What is your view on jury trial?

It is the law of Tonga and I think Tupou I brought it in, and so long as it is there it is there to stay. A lot of people choose not to be tried by jury, but if they want to be tried by jury then they should be. The difficulty is that a member of the public or someone outside the case will often know something about a case from rumours and gossip, then they hear the jury giving a verdict that they disagree with, but they have not sat through court and they don't know the evidence that has been presented before the jury. If the jury heard the evidence, they assess it and then they come to the decision, and unless you heard that evidence yourself you can't say whether they are right or wrong, but people do criticise them. There is always an unpredictable jury, but they are never been able to tell us what they have been discussing, and nor should they, but they should be able to make a decision. I have heard of any evidence of a jury just cynically disregarding evidence, but it is their own opinion coming in, but that is common with juries all over the world.

I think in some Commonwealth countries there are cases, certain white-collar crimes cannot be tried by a jury. Do you think that Tonga should adopt such an approach and make it that some cases cannot be tried by a jury?

I don't what Tonga thinks they should do about it, but it is right that when you have very complex, technical crime like, say computer fraud, then the average juror is not going to be able to deal with the evidence and that is the trend that is going in the world. They are setting an example in frauds where they are taking in skilled and experienced assessors to deal with the case, and that is a major decision and it is not for the court to make but by the legislature to make. I sometimes worry with the jury when we have a very technical type of offence and I have to explain the law, and you feel that if you were sitting in the jury yourself and had those things said to you it would be very hard to work out just what is being said. But that really is the judge's job to try and make the laws clear and the questions they have to answer.

Where I do feel worried about juries most is in civil cases, like defamation, where they are able to fix the amount of damages as well. Because damages normally when they are awarded in civil cases follow certain sort of tariffs, they all keep in line, and if you get a jury giving defamation damages, they may suddenly be out of line and give a much higher figure or a much lower figure, but again that is a problem they have had in other countries.

Going back to our last interview, you mentioned how you hoped that we don't go the way of the Americans, where a case is literally tried in the Press at the same time a proceeding is going on in court. What do you think is the situation in Tonga now, are we still following the British way?

Yes, I think we are. We've had a couple of cases where comments were made and they were prosecuted with contempt of court.

I think it is terribly important, particularly in a country like Tonga, where a lot of communication is by word of mouth. Once people are able to start commenting on cases by the time the case come for trial you have got very little chance of getting a jury that have not heard a lot about it. I think that is the problem in America and in other countries, you get the lawyer standing in front of the television telling everybody why their client is innocent, and why they think this should be done, I just think it prejudices the cases, it is much better that they keep it subjudice.

There was a decision that you made which remains a topic of controversy for some Tongans. You said that the court has the right to decide if a decision that was made by the King in his executive capacity as the Chairman of the Privy Council is constitutional or unconstitutional. Some Tongans interpreted that to mean that the Judiciary was questioning the power of the Monarchy. Is that the first time that such a point has ever been raised?

I could not find many authorities on the exercise of prerogative power, as it related to the situation here. I appreciate how Tongans feel about it, and it is one case that I have to say the law is clear ...– as I see the law, the written law, particularly the constitution and the Government Act is clear, and I have to interpret it. It may be that over the years other people have other perceptions of it and to some extent have not taken any notice of it, but my view is that where the law is clear like that it has to stay and I have to apply it. I certainly didn't intend to take any power away from the King, because I think his powers are very clear. I think I mentioned in the judgement that King Tupou I quite clearly understood the prerogative, and deliberately retained some very clear royal prerogatives, but let the rest become part of the executive government. Once they are a part of the executive government then they follow the laws as to how the executive government should apply them.

The decision is a precedent.

I hope what it will do is that the government executive must look at it. If they feel it is not right and if they feel it's encroaching on the King's powers then the answer is that they should change the legislation, and if they change it then the court will continue to have to apply it in a new way. But really it is a decision of the government and the legislature and not the court. The court does not take over anything, the court just says that this is the law as it is at the moment and we have to observe it.

There seems to be a tendency for the authority to make a decision and because they are governing they say you must do what I tell you to do, and they think that no one else in the land has any authority to challenge that decision.

I don't think that Tonga is any different from anywhere else, but the trouble is that people, once they get power, they use it so often without regard to the rules. Often it is done for the best reasons, often they see the rules as slowing things up, they want to get moving and all these restrictions make life difficult. The reasons why rules are there, why the restrictions are there is to protect the people who do not have the power, and against whom the power is exercised, and that is where the courts are terribly important. They have to look to those things, that is why they often seem to be taking a lot of details into account and slowing things up, it is because those laws are to protect people and the Court is the body that can protect them by using them.

The biggest question that Tonga has to face is when they have to have Tongan Judges, some countries eventually have to, but I must say the comment that I receive from Tongan people suggest that they still feel they would like to keep expatriate judges. I cant really say whether it should or should not be the case. It certainly it is something that will happen in the future but otherwise I think that the judiciary here is healthy and strong. We very lucky that Judge Ford is a first rate judge and so long as you have the staff to back them up, the registry have been very good, in supporting the judges.

I think Tongans are scared of the fact that the judges may be related to the person on the other side, actually in other countries they have the same fear. It is nice as a judge to come in and know that you do not have that kind of problem, because you are from the outside.

I think the Court of Appeal will also remain expatriate for a long time, simply because you can't get home grown judges to that kind of experience very quickly.

Also see: Tonga's Chief Justice Ward resigns early 22 April, 2004