Lord Tu‘ivakano trial in third week: A/Attorney General's advice ignored [1]
Wednesday, February 26, 2020 - 19:42. Updated on Friday, February 28, 2020 - 14:14.
The jury trial against Lord Tu'ivakano on offences relating to the issuance of Tongan passports continues, with revelation that legal advice from the then Acting Attorney General against the issuance of Tongan passports to Chinese applicants was ignored. This was despite real concerns of criminal activity.
The legal advice was produced during the evidence of Crown witness Viliami Va’inga Tone on February 24-25.
Tone is a former Secretary for Foreign Affairs, who is currently Tonga’s Permanent Representative to the United Nations based in New York.
The accused is Tonga's former Prime Minister and Minister for Foreign Affairs, who has pleaded not guilty to 10 counts, five of which are for accepting bribe by a government servant.
Evidence
During his evidence in chief, the Prosecution produced in Court two documents, namely legal advice sought by the witness from the then Acting Attorney General and Director of Public Prosecutions, 'Aminiasi Kefu.
The legal advice was sought because of doubts and concerns arising out of five passport applications for renewals from Chinese persons, and applications for issuance of Certificates of Naturalisation to two Chinese persons, Mr Singkei Lou and Mrs Shanoi Kam.
These applications failed to provide conclusive evidence that they had been naturalised as Tongan subjects.
The witness told the Court, that he forwarded by email both legal advice received from the then Acting AG to the accused, on October 29, 2014 (five passport applications) and on October 31, 2014, regarding the applications for Certificates of Naturalisation.
However, the accused had still directed their issuance, despite the legal advice not to. The accused, is also said to have noted in his direction to refer to old passport records.
Immgiration staff have searched records at the Ministry and none was found.
The witness, said once he received the direction from the accused, he acted upon it as it was normal procedure in the civil service, that once directed from a Minister, a civil servant must obey at the time.
Legal Advice
Both document read in Court by the witness, were objected to by defense counsel William Clive Edwards on the grounds that it was not relevant to the charges against his client.
Edwards also objected on the ground that it was prejudical to his client.
This was overuled by the Lord Chief Justice, who said the legal advice was relevant to the charges.
The Court then heard, in regards to the five passport applications, the then Acting AG advice to the witness and Ministry of Foreign Affairs, not to issue the passports to these five Chinese applicants.
In summary, the Acting AG pointed out the fact, that these applicants did not provide Certificates of Naturalisation to prove they had actually been naturalised as Tongan subjects, and their names entered into the Naturalisation Registry, among other requirements.
He was suspicious, that as Chinese business people, they failed to keep their certificates, if it was true they had actually been naturalised. He was also suspicious that it has taken these applicants six to nine-years to apply for renewals.
The Acting AG also referred to the affidavits provided in support by a former Police Commander Sinilau Kolokihakaufisi and a retired police officer 'Ileana Taulua did not confirm, that these applicants were naturalised. Their affidavits were insufficient to be relied on.
In addition, three of the applicants did not provide previous passports, whether issued by birth or naturalisation, while pointing out valid concerns regarding the authenticity of their passport application photos and signatures. Their names were also not recorded in the Naturalisation Registry.
He concluded that there was real concern there was criminal activity behind these applications and real indications that unlawful schemes may be happening either in China and Tonga.
“This abuse of power must be stopped and those who are carrying these illegal acts must be investigated and prosecuted...The refusal to issue these passports is the start to stop such acts,” the Acting AG advised.
Second document
The Court heard again on the second legal advice to the witness, the then Acting AG advising against the issuance of Certificates of Naturalisation to Mr Sinkei Lou and Mrs Shanoi Kam, due to no conclusive evidence of naturalisation.
The Acting AG said it was highly questionable that these two individuals requested certificates because they had lost them. When did they loose it?
The Certificate of Naturalisation is granted by the King and not by your Ministry (Foreign Affairs). The Ministry issues the Certificate, at the direction of the King and if there is no record of naturalisation, the applicant must apply to the King for a new Certificate.
“From your letter it is clear there is no evidence that these two were ever naturalised. There must be proof of naturalisation, a Privy Council decision granting naturalisation, a Certificate of Naturalisation and the entrance of their names into the Registry of Nationalisation kept at the Prime Ministers office.”
A copy of a previous Tongan passport is only secondary evidence, the then Acting AG had advised the witness.
The advice also noted that the two applicants had been issued with three previous passports, according to Taulua. It was too much of a coincidence that that these passports were lost twice for the same reason.
Disregard
The Acting AG concluded to the witness, that these two cases were the same as the other applications (refer to five applicants), which he had advised not to issue their passports because there was serious concerns on whether they had been naturalised, due to no evidence of naturalisation.
He concluded in the hope that the witness and (Ministry) followed their legal advice, because what was clear here, was the fact that it is illegal to issue passports to applicants, who have not provided conclusive evidence of naturalisation.
The Acting AG said, if their legal advice was not accepted on this issue, he would consider bringing this to the King’s attention in his role as Acting Attorney General, so that the (King) was aware about their serious concerns, regarding the Ministry (Foreign Affairs) continuous disregard to have conclusive evidence for naturalisation.
The trial continues with Crown witnesses at the Supreme Court in Nuku'alofa.