Amendment aims to restore Tonga's access to Common Law of England [1]
Monday, October 24, 2011 - 18:15. Updated on Monday, September 9, 2013 - 18:40.
From the House. by Pesi Fonua
(Minute No. 37, 12 October 2011).
There was speculation and suspicion in the House that there was a hidden agenda behind the last minute rush by the Minister of Justice, Hon. Clive Edwards for a Bill to Amend the Supreme Court Act to be passed before the House closed on 20 October.
So when the Whole House Committee of the Tongan Parliament on October 12 voted 10-9 for the Bill to Amend the Supreme Court Act to be tabled into the Standing Committee on Legislation, it calmed down the tension in the House.
Borrowers
The Minister of Land and Survey, Lord Ma'afu was very concerned that the Bill would give the banks more power to take possession of borrowers' land and other personal possessions besides the land that a borrower had originally mortgaged with a bank. He said that the practice of banks taking possession of lands and other personal properties of borrowers was already taking place. He was very concerned with people losing their lands and their properties and becoming very poor.
Sione Taione, a vociferous opponent to the Bill, argued that the Bill would interfere with the course of justice in the Appeal Court where they were deliberating over two appeal cases. He moved for the House to gracefully kick the Bill out of the House.
'Akilisi Pohiva was also very suspicious of the Bill, which he said did not come to the House through the proper channel. It had by-passed the Standing Committee on Legislation and became a priority issue for the House to deal with, rather than important issues that were already before the House.
He said that the Minister of Justice was a director of an entity that was involved in a pending court case against the Royal International Airport Hotel.
The Minister of Justice, Hon. Clive Edwards responded to the concern expressed by the Minister of Land and reminded him that the Land Court deals with land issues but the Bill that was before the House was to amend the Supreme Court Act.
With regards to concern over pending cases in the Court of Appeal and in the Supreme Court he pointed out that laws are not passed retrospectively, and that he was not tabling the Bill into the House because of cases that were with the courts.
Garnishee Order
He said that the Bill was initiated by the interim Attorney General, and the intention was to reaffirm the jurisdiction of the Supreme Court when it passes orders. At the moment, the Supreme Court could declare Restraining Orders, Charging Orders and Garnishee Orders, but to reaffirm its jurisdiction it was necessary to reinstate the Statutes of General Application that was repealed in 2003. Before that, the Common Law of England could be used by the Supreme Court in Tonga.
He said that at the moment the Supreme Court could declare orders. He gave an example of a Garnishee Order that was recently made by the Supreme Court against a high level civil servant for half of his monthly salary to go the bank to pay off his debts. But to reinstate the Statutes of General Application that is used by the Supreme Court in England and Wales, he said, would restore some missing elements from the Supreme Court Law of Tonga.
Supporting bill
The Minister of Finance, Hon. Sunia Fili recalled his strong opposition to the repealing of the Common Law of England in 2003, which was presented to the House with the strong backing of the Tongan Cabinet at the time, and Clive was the Minister of Police. Sunia was in favour of the new amendment to the Supreme Court Act and the reinstating of the Statutes of General Application that is used in England and Wales. He said that government was currently working with the IMF, the World Bank and the ADB, for the development of the private sector and that the private sector needs to be protected. He accused opponents to the Bill for supporting illegal practices in the country - for borrowers who borrow millions and then try to avoid repaying their loans.
The Minister of Health, Hon. 'Uliti Uata wanted the Minister of Justice, Hon. Clive Edwards to explain why the Common Law of England was repealed in 2003, and why today he wanted it reintroduced so the Statutes of General Application that is used in England and Wales could be used in Tonga.
Clive's explanation was that many Tongans do not know the unwritten Common Law of England, so at the time it was irrelevant for Tonga to use them, and the reason for reinstating it this time was restore missing elements in the Tongan law.
[Editor's note: Clive Edwards did not mention that the repealing of the Common Law of England in 2003 had a number of negative impacts: it had made it very difficult for overseas Tongans to adopt Tongan children; and it also made it very difficult for the Tongan media to defend Freedom of the Press and Free Speech along with other far-reaching impacts.]
Amidst of all the mystery and the obscurity of the move to reinstate the Common Law of England, the Minister of Land, Hon. Ma'afu moved a motion for the Bill to be tabled with the Standing Committee on Legislation.
The Chairman of the Whole House Committee, Siosifa Tu'utafaiva called for votes, and the motion was carried 10-9.
Reserve Bank
In a quick sequence of events, a Bill to amend the National Reserve Bank Act 2011, for the Minister of Finance to have the authority to appoint the Governor of the Reserve Bank was read, but the House did not bother to debate. The Chairman called for votes and it was carried 19-0.