From Matangi Tonga Magazine Vol. 18, no. 2, August 2003.

By Pesi Fonua.

Since he entered politics in 1987 ‘Akilisi Pohiva has been marking his successes in the court house.

‘Akilisi Pohiva, the controversial, Tongatapu no. 1 People’s Representative to the Tongan parliament won his most serious court battle ever when a jury cleared him and his associates on May 19 on charges of crimes against the state.

‘Akilisi was charged with four criminal offences which included, Abetting forgery, Knowingly Acting Upon a Forged Document, Sedition for being a party to a Seditious Conspiracy and Sedition for publishing a Seditious Document. Also charged with ‘Akilisi for Forgery and Sedition were his son Po‘oi Pohiva, and a parliamentary colleague ‘Isileli Pulu.

If they were found guilty of sedition they might have received heavy prison sentences and the two parliamentarians would never again be eligible to become members of parliament.

The charges related to material published during ‘Akilisi and ‘Isileli’s pre-election campaign last year.

A few days before the 2002 parliamentary election ‘Akilisi published in his newsletter, the Kele‘a, a letter that he claimed was written by a former private secretary of the King to a Japanese national, alluding to US$350 million deposited in a secret overseas bank account. The authenticity of the document could not be confirmed or denied because both the letter writer and the Japanese national had died.

The police carried out an investigation into the source of the letter, and after a raid on the offices of the Tongan Human Rights and Democracy Movement, where they seized computer hard disks, and photocopies of what became known as the “Onedera letter”,  they concluded that the letter that was published by ‘Akilisi was a fraud. ‘Akilisi maintained that he had received it in the mail and that he believed its contents to be true.

A trial by jury started in the Nuku‘alofa Supreme Court in early May, before the Chief Justice Gordon Ward.

Charges

Po‘oi was charged with forgery with an intention to deceive others by making a false document in the form of a letter dated 8 November 1991 from ‘Ofa Tu‘i‘onetoa to Charlie Onedera, and of falsely signing the letter as ‘Ofa Tu‘i‘onetoa and affixing a copy of the Palace Office Seal.

He was also charged together with ‘Akilisi and ‘Isileli with being a party to seditious conspiracy between 1 September 2001 and 25 February 2002 to excite disaffection against the King of Tonga by making the forged letter and by promoting a public reaction against the king based on the contents of the letter, which was published in the Kele‘a in December 2001.

Other charges against ‘Akilisi included abetting forgery by encouraging Po‘oi to forge the letter and knowingly acting upon a forged document by writing to the King on 1 November 2001 in his capacity as People’s Representative, to confirm whether the King actually had such money.

In his summing up the Chief Justice noted to the jurors that one would think ‘Akilisi would be entitled to have a response from the king. Instead the Palace Office did not show the People’s Representative’s letter to the king. If the letter had been passed to the king and had the king denied it, then ‘Akilisi had stated he would not have published the document.

Crown mistakes

In reflecting on the trial, ‘Akilisi said that the allegation was that, “I masterminded the whole episode, I created the letter told Po‘oi to type it, and then that ‘Isileli went and copied the Palace letterhead and pasted the letter onto it. Only a fool would do such a thing, a waste of time.”

A jury of three women and four men on May 19 found the defendants not guilty on all charges, on the grounds that the police did not provide enough proof beyond reasonable doubt to support their allegations. The Crown was represented by David Jones, a New Zealand lawyer and ‘Aminiasi Kefu from the Crown Law Department.

It was a political victory for ‘Akilisi who defended himself. He believed that the jury dismissed the case because the Crown made a number of major errors.

“When I wrote that letter [of November 1] to the King I never thought that it would lead to a sedition case. I believe that this case should have been only a defamation case. If I was charged with defamation and found guilty I may just have had to pay a heavy fine, but if I was found guilty of sedition, I would go straight to prison and I would never be able to become a member of parliament.”

‘Akilisi said that the Crown built their case around a theory that he masterminded the whole episode. Another set back with the government was that they failed to assure that the Palace office was ready to play their part as the star witness in the case. “I know a lot about what is going on at the Palace Office. I know that for six years the auditor general has not been able to audit their books. I also have received correspondence of the Palace Office.

I have got a letter from the Palace office to a Russian, written by ‘Etuini Mo‘ungaloa [the King’s former private secretary] guaranteeing that the Palace Office would pay US$520,000 within seven days after two Russian helicopters landed in Tonga. ‘Etuini actually said in court that this letter was to a member of the Russian Mafia. I also have got a letter of the former president of the Philippines, President Marcos to the King, and other information that was leaked to me from the Palace Office, so when I received copies of the letter by ‘Ofa Tui‘onetoa [regarding a $350 million investment] I was convinced that it was genuine,” he said.

‘Akilisi said that the other big mistake by the Crown was that when they produced as an exhibit item, a letter signed by the King denying the allegation that he had US$350 million in an overseas bank account, when, “they know darn well that the King cannot be called to stand as a witness, and such an evidence has no value in the court of law unless the writer can be called into court to be cross examined and establish the legal value of his evidence.”

‘Akilisi said it became more difficult for the Crown to prove to the Jury their case beyond reasonable doubt,  because even one of their witnesses, the Auditor General Pohiva Tui‘onetoa told the court that he found that one of the major problems faced by people who were working at the Palace Office was that people would come in and say that the Queen or the King had told them to do this and that, but somehow they could not go to the King or the Queen to confirm if what these people were saying was true. “If the people at the Palace Office can’t double check with the King and the Queen to make sure that the instructions they received were correct, then definitely there is a big problem. For me, that is very dangerous and it should not ever happen, but that is supposed to be part of our culture and that is why there is no accountability, and there lies the root to our political problems, because a Minister or a friend may come along and say that the King said this and that and people will just go along with it without double checking.”

But does ‘Akilisi still believe that the King has stashed away US$350 million?

‘Akilisi said that he believed the king’s denial in the letter that was exhibited in court, but that it should also be proved. “I think it is the responsibility of the Information Unit, Interpol and the police to answer that question and draw a conclusion on the case,” said ‘Akilisi.

Battles

‘Akilisi, a former school teacher, had his first court battle with government during the early 1980s, after government dismissed him from the Civil Service for being an irritant public servant. ‘Akilisi sued government for wrongful dismissal, and won.

It was the beginning of 20 years of running court battles against government, and its officials, and ‘Akilisi, labelled as an outspoken whistle blower, has maintained a high profile by appearing in court numerous times over the years on defamation charges.