Tonga Law Society, Press Release, 11/8/2010:

As president of the Tonga Law Society, I wish to express my serious concern about the approval by Privy Council of a Royal Commission of Inquiry to inquire into reports that Government has attempted unduly to influence the independence of the judiciary, as conveyed in a media release of the Prime Minister's Office on 5 August 2010.

The Media release was as follows:

"Privy Council Approves Establishment of Royal Commission of Inquiry Into Reports That Government Has Attempted Unduly to Influence The Independence of the Judiciary"

The Privy Council on 30 July approved the establishment of a Royal Commission of Inquiry, under the Royal Commissions Act (Cap.41), "with the specific mandate to enquire into reports that Government has attempted unduly to influence the independence of the Judiciary".

Allegations of Government interference with the Judiciary surfaced during the former Attorney General's resignation in April and re-surfaced with the recent repeal of the Judicial Services Commission Act and the establishment of the Office of the Lord Chancellor. As the recruitment process for some judicial posts are in progress, the Privy Council considered it important that the Royal Commission's work be undertaken immediately.

In deciding to establish this Royal Commission of Inquiry, the Privy Council was keen to reassert that it would not tolerate any interference with the judiciary and that it will protect at all times its integrity and independence.

The Privy Council in its decision also directed the Judicial Committee of Privy Council to draw up the Letters Patent establishing the Royal Commission of Inquiry."

MEDIA RELEASE
(5 August 2010)

My concern is as follows:

1. The judiciary comprises the judges and magistrates who adjudicate the cases that come before the courts.

2. It is vital that those judges and magistrates are not influenced by any person, in order that their decisions are fair and unbiased and are in accordance with the laws and constitution.

3. That is what independence of the judiciary is all about.

4. Government, in particular, must ensure that when it appoints the judges and magistrates it does not influence them so that they decide cases in ways Government wants them decided. If that was to happen, the decisions would be unfair, and injustice would result. Government would thereby rule the country without the necessary check and balance which the constitution requires the Judiciary to keep upon the actions of the Government. Anarchy would be the consequences.

5. Fortunately, and wisely, the constitution provides that when the judges are appointed, they are to be so appointed for as long as they are fit and able to carry out the functions of judges and provided they are of good behavior. (Refer clause 87 of the Constitution).

6. However, due to financial inability of the Government to pay salaries which would ensure recruitment of fit and competent persons as judges the Australia and New Zealand Govenments have been able to assist the Kingdom by providing the funds with which those salaries are paid. Those governments are only periodical, that is, they are subject to change, which change may result in termination of the provision of those funds, when they have their 3 yearly general elections in their countries.

7. Accordingly, the Tongan Government can only guarantee the salaries, which the judges would be paid, for the periods directed by the Australian and New Zealand governments.

8. Necessarily therefore, Government must appoint the judges on contracts for the periods limited by the Australian and the New Zealand Governments.

9. But when those periods are renewed and extended by those governments, the Tongan Government must renew and extend the contracts of the judges as a matter of course.

10. Government must not refuse to renew and extend a judge's contract for which the funds have been renewed and extended, unless the judge has not been of good behavior. Otherwise, the Government would thereby improperly attempt to influence the judiciary, and it does that by showing other judges who are on similar contracts that their own contracts may not be renewed or extended if Government so wished. Those judges may then have to decide cases as Government wants them decided and injustices would be the result.

11. It was therefore desirable, and indeed timely, that the Judicial Services Act was enacted precisely to prevent any such improper attempt of Government to influence the judiciary.

12. That Act established a Commission which comprised the Chief Justice as Chairman and 3 members, who were the Secretary for Justice, the Solicitor General and the President of the Tonga Law Society, and it was given the authority to make the recommendations to Privy Council for the appointment (and re-appointment) of judges. It was also given the authority to hear and determine complaints of misconduct against judges and to recommend termination of their appointments.

13. That Act achieved, in the circumstances, the independence of the judiciary for the Kingdom. It was a historical milestone in the development not only of the judiciary but also of the Kingdom as a whole. It guaranteed total independence of the judiciary and the ability of everyone, including Government, to obtain justice in the Courts.

14. That however, and most unfortunately, was not to be. In July of this year, Government submitted a bill to Parliament and, against the voice and votes of the people's representatives, secured the repeal of the Judicial Services Commission Act, and appointed a Lord Chancellor to carry out the said functions of the Judicial Services Commission instead.

15. It is clear that Government did that because it could not influence or control the decisions and recommendations of the Judicial Services Commission, without which Privy Council was powerless to make the appointment and termination of appointment of judges. It wanted to control those recommendations and it can now do that by controlling the appointment, and dismissal, of the Lord Chancellor.

16. And to top it all, Government has now approved a Royal Commission of Inquiry to inquire "into reports that Government has attempted unduly to influence the independence of the Judiciary"! That is a farce.

17. We do not need an expert, let alone a competent royal Commission of inquiry, to say that what Government has done, as described above, or as to why Mr. John Cauchi, the Attorney General, resigned, and as to why the contracts of Justice Andrew and of the Chief Justice Ford have not been renewed despite the recommendations of the Judicial Services Commission last year to renew them, were and are attempts by Government to influence the judiciary.

18. In December 2009, Cabinet declined to renew Chief Justice Ford's contract which is to expire in September 2010. That was in total disregard of the recommendation of the Judicial Services Commission to renew it.

19. In February 2010, the Law Society petitioned the King and Privy Council to renew the Chief Justice's contract. That petition was directed by the Princess Regent, Her Royal Highness, Princess Pilolevu, to be forwarded to the Prime Minister's Office for submission to Privy Council. To date, despite the repeated inquiries of the Law Society, no reply has been received up to now. A copy of that petition is attached hereto.

20. It therefore does not take much imagination to see that the royal commission of inquiry which has just been approved by Government will find that Government has not attempted unduly to influence the judiciary. Why else was it appointed ?

21. The fact remains. The judiciary is no longer independent in Tonga. We can only hope and pray that the new government which the people will elect in November this year will restore it. ENDS

Attached Letter of Petition to the King:

Tonga Law Society, 9th February 2010.

Your Majesty and Privy Councillors,

The Tonga Law Society is by nature and composition a conservative and cautious body and is not given to becoming engaged in matters of the body politic unless an issue of grave concern regarding matters in which the Society has a legitimate voice has arisen. The record will show, we believe, that this is the first occasion upon which the Society has entered into correspondence with Your Majesty
in relation to such an issue, and we do so with the greatest of respect, but also with a deep and abiding concern that the laws of the Kingdom are upheld.

The matter which we wish to bring to your Majesty's attention is the decision not to renew the contract of Chief Justice Ford upon the expiration of his present contractual term in September of this year.

This is especially of concern to the members of the Society because they, as a body, are represented by the President of the Society as a member of the Judicial Services Commission, which in pursuance of its several functions under the Judicial Services Commission Act 2006, makes recommendations about appointment of judges as well as the hearing of complaints against judges and the making of recommendations in respect of such complaints.

Let us first acknowledge that the members of the Society, who appear before the Chief Justice on a daily basis, consider His Honour to be an impeccable jurist,
with great respect and affinity for the Kingdom, its Constitution, its laws and its people, and a skilled administrator. Under his guidance, great improvements have been made in the administration of the Courts in the Kingdom and such improvements have been recognized and praised at an international level. No complaint, no hearing and no recommendation against him has ever been made in the 10 years he has been a judge in Tonga.

That said, the Society's concern lies not in any issue of personality, but in the adherence to the Constitution and laws of Your Majesty's Kingdom.

As your Majesty is well aware, the Constitution of the Kingdom of Tonga was adopted under the auspices of His Majesty, King George Tupou I 135 years ago in 1875. It was and remains a remarkable, forward thinking and prescient document, recognizing and securing the rights of all of the people of Tonga, from King to commoner, at a time when other supposedly greater nations were still throwing off the shackles of slavery. It is, and remains, a tribute to the unique nature of the Kingdom and its Monarch.

The Constitution recognized many critical and important rights and powers, which over the past one and a quarter centuries have helped to maintain Tonga's independence, and its reputation as a peaceful, law abiding and respected member of the community of nations.

One of the important cornerstones laid by the Constitution, for all of its people, but perhaps of even greater import for those of us who practice the law, is the independence of the judiciary, which can only be achieved by the impartiality of the judges, as reflected in those terms of the Constitution which address the process of appointment of the judiciary and their tenure and the oath to be taken by them. In this regard we respectfully draw your Majesty's attention to Clauses 86, 87 and 95 of the Constitution, which say:

"87 The Judges shall hold office during good behaviour and shall receive such salaries as the Legislature may determine and the Legislature may increase but shall not decrease such salaries during their tenure of office."

"95. The Chief Justice and any other judge shall take the following oath: "I swear in the presence of God that I will be loyal to His Majesty King Taufa'ahau Tupou IV the lawful King of Tonga and that I will perform truly and with impartiality my duties as a judge in accordance with the
Constitution and the Laws of the Kingdom". The judge shall read and sign this oath in the presence of the Cabinet:

Provided that a Chief Justice or any other judge, who is not a Tongan subject, shall take the following oath in lieu of the foregoing oath: "I swear in the presence of God that I will perform truly and with impartiality my duties as a judge in accordance with the Constitution and the Laws of the Kingdom."

"86. The Supreme Court shall consist of a judge called the Chief Justice, and such other judges as may be appointed from time to time by the King with the consent of the Privy Council, sitting with or without a jury."

In practice, however, the concept of a contract for the Supreme Court Judges has been adopted, but this was largely, as the Society understands the matter, to meet the requirements of foreign governments providing funding to assist in meeting the expenses of the judicial payroll. Such contractual arrangements do not breach the pre-requisites of judicial appointment and tenure set forth in the Constitution, but must be considered in light of those pre-requisites. Quite simply, those requirements are that once a judge has been appointed, the judge holds office during good behaviour, with the consequence that the contract should, and in fact must, be renewed unless the requirement of good behaviour has been transgressed.

And in view of the achievements of Chief Justice Ford and he having been of good behaviour, the Judicial Services Commission, as it must, recommended that his contract be re-newed. That recommendation was, however, not accepted by Cabinet.

This, Your Majesty, with the greatest respect, brings us to the core of the Society's present concern. Despite having made enquiry of those involved in the decision process not to renew the Chief Justice's contract, no party has been able to demonstrate how the Chief Justice has transgressed the constitutional requirement of good behaviour. Given the serious and constitutional nature of our concern, the Society would be most grateful if those who adjudicated this transgression could be asked to explain its precise nature to us.

The Society would respectfully submit to Your Majesty that the Constitution of the Kingdom of Tonga is the cornerstone of the laws of the Kingdom, prudently and carefully laid and cemented in place by the Monarchs, including Your Majesty, over the centuries. To allow that foundation to be eroded at any level and in any manner is to place in jeopardy the independence of the judiciary and the well being of all the people of Tonga and their right to a fair trial by an impartial judge. It would undermine the integrity of the judicial system of the Kingdom.

It is the Society's sincere, honest and professional view that the Judges of the Supreme Court must be permitted tenure in accordance with the terms of the Constitution, and in the absence of evidence of misbehaviour, we respectfully submit that in the circumstances, those terms have not been adhered to when Cabinet decided not to renew the Chief Justice's contract.

Your Majesty's consideration in addressing this vital matter is respectfully and urgently requested, and we humbly request that Your Majesty and Honourable Privy Councillors may direct that Chief Justice Ford's contract be renewed. We believe that that would ensure that the provisions of the Constitution of the Kingdom of Tonga are upheld.

The Society, in a special general meeting called for the purpose and held on Friday, 5 February 2010, considered and resolved that we, the undersigned, forward this representation on its behalf. We thank you.

We humbly remain,

Laki Niu
President, Tonga Law Society

Dana Stephenson
Secretary, Tonga Law Society"