Ashika inquiry protected like a court, Attorney General tells Tongan media [1]
Tuesday, September 1, 2009 - 16:54. Updated on Saturday, May 3, 2014 - 19:47.
By Pesi Fonua
John Cauchi, Tonga's first independent Public Prosecutor and Attorney General warned the Tongan media that the Royal Commission of Inquiry into the sinking of the passenger ferry MV Princess Ashika will be conducted like a court of law.
As guest speaker at a meeting of the Media Council of Tonga, on August 27, the Attorney General said that facts relating to the sinking of the Ashika would remain sub judice or awaiting judicial determination, while the Royal Commission carries out its investigation.
However, he said that some of the Commission's public inquiries would be open to the public. "The Commission is also considering televising some of these inquiries."
A Preliminary Report of the findings of the Royal Commission will be presented no later than November 30, 2009, to the Privy Council and the Parliament; and a Final Report will follow no later than March 31, 2010.
In answering a concern by journalists that the Ashika inquiry might be like other Tongan Royal Commissions where the findings remain unheard of by the public, he expressed the view that once the reports were presented to Parliament then they should be accessible to the public.
Guardian of the Constitution
John, an Australian, was appointed as Attorney General earlier this year when the position was separated from the Ministry of Law. In the past the Minister of Law has also held the position of Attorney General.
By being the first, John has the task of establishing his identity as an independent Public Prosecutor and an Attorney General and a guardian of the integrity of the constitution and the law of Tonga.
John said that he was told by government that he is independent but his independent is not protected under the Tongan law. To ensure his independence he has proposed an amendment to the Tonga Constitution.
"I have written to the Constitutional Commission that the Attorney General cannot be interfered with."
He said that an Attorney General could not be dismissed by government, unless he is convicted of corruption or is mentally incapable.
"I want to stress that . . . I am not a representative of the government. It was very clear in my appointment when it was made at the end of May that I am not a member of the Cabinet, nor the Privy Council, and not a Minister."
Advisor
John said that he is responsible for advising the government for what it does, "but I don't make decisions on the behalf of the government."
His other responsibilities included the overseeing of litigation against government; checking bills before they are presented to Parliament; acting as the legal representative of the country in overseas dealings; the signing of treaties and overseeing the application of Extradition Orders.
Media freedom
With regards to Media Freedom in Tonga, John said that Tonga was unlike other places and people believe that what they read in the paper is true.
"People don't understand the difference between an opinion and a fact. That is true in Tonga as in other places, and that is why my other main role besides being a Public Prosecutor, I have a responsibility to protect the integrity of the Constitution, and Clause 7 of the Constitution which said, we have free speech."
But he believed that free speech "has to be guided by the ability of the court to operate properly and to administer justice properly, so that people receive fair hearing in a court,
"And in the mind of a juror or potential jury or in the mind of the country it does not come to a conclusion prematurely, which means that a prosecutor later has to try to take into consideration whether or not a prejudice is incurable. lf there is prejudice that is incurable you have to come to the conclusion that it would not be possible to have a conviction."
He advised that for the local media to escape the scrutiny of the Attorney General in regards to contempt of court, they should publish in the Tongan vernacular, because he can't read Tongan.
Following the loss of the MV Princess Ashika on August 5 the Attorney General initiated the amendment of the Shipping Act and the formation of a Royal Commission of inquiry into the sinking
He said that the Royal Commission is like a court, and its investigation has all the protection under the constitution and in the criminal procedure, and there is no higher investigative tool than a Royal Commission.
Dismayed
He said he was dismayed by the fact that the Bill to amend the Shipping Act in order to form to form the Royal Commission was nearly rejected by the Legislative Assembly, "by the very people who have been saying that a Royal Commission was a government cover-up."
Instead, the House appointed a Select Committee to carry out its own public inquiry into the sinking of the Ashika, saying that only the members of the House could carry out an independent inquiry.
But the Attorney General disagreed.
"Firstly, they can't do it because they are not a court, they are not a commission. The House can't carry out a public inquiry after [some members] saying that these people are guilty, and then allowing themselves to carry out inquiry in secret."
He said that the Select Committee of the House had since been terminated, but prior to its termination he was prepared to apply for a court injunction to stop the Select Committee of the House.
The Attorney General compared the attempt by the House to set up its own Select Committee to investigate the sinking of the Princess Ashika, to a previous episode. He referred to a period in 1996 when the Tongan parliament in "another spirit of madness thought they had the power to act as a court," when they tried three individuals ['Akilisi Pohiva, Kalafi Moala and Filokalafi 'Akau'ola] and then sent them to jail, and that decision was later overturned by Justice Hampton.
Justice Andrew
Meanwhile, the Commission is made up of only the chairman, Justice Warwick Andrew, while the other two members a Master Mariner and a Marine Engineer had yet to be appointed.
Already into its third week, investigation so far had been carried out by investigators from Transport Investigation Commission of New Zealand and the Australian Transport Safety Bureau.
Accusations in church
On the issue of whether a television station could be charged with contempt of the Royal Commission if it telecast some of the strong accusations by church ministers against people whom they believed were responsible for the sinking of Ashika, the Attorney General said that the broadcasters had to use their good judgment in dealing with the men of god.