Tongan PM seeks royal audience after lawyer’s constitutional advice on law

Tonga’s King Tupou VI and Prime Minister ‘Akilisi Pōhiva … vetoed laws issue. Image: Kaniva News

By Kalino Latu, editor of Kaniva News

The government of Prime Minister ‘Akilisi Pōhiva has planned an audience with the King of Tonga after a New Zealand legal expert advised that the king had no right to judge the merits of legislation passed by Parliament.

A government spokesperson said the plan was made after cabinet accepted the New Zealand lawyer Dr Rodney Harrison’s recommendations.

Pōhiva told Kaniva News in a recent interview that six Amendment Bills were submitted by the Tu’ivakanō government in 2014 and were passed by Parliament.

However, when submitted to King Tupou VI in Privy Council for his approval and signature he rejected the new laws.

These amendments included Acts of Constitution of Tonga (Amendment Bill) 2014, Judicial and Legal Service Commission 2014, Tonga Police (Amendement Bill) 2014, National Spatial Planning and Management (Amendment Bill) 2014, Magistrate Court Amendment Bill 2014 and Public Service Amendement Bill 2014.

Pōhiva said the Amendment Bills 2014 were submitted by the Tu’ivakanō government after the constitution was reviewed by a Commonwealth constitutional law expert, Peter Pursglove.

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As Kaniva News reported, Pursglove said that Tonga’s 2010 constitution did not uphold democracy, the Privy Council lacked any democratic composition or accountability and the judiciary lacked accountability and transparency.

Amendment bills left
Pōhiva said when his government came to power in November 2014, the Tu’ivakanō government had left these amendement bills for them to complete working on them.

He said they pursued some of these bills, including some that concerned the assignment of the Attorney-General to the Privy Council, which Pursgrlove said was unconstitutional.

In a response to a request by the Prime Minister’s office for an opinion on the legality of the Royal Assent Order 2011, Dr Harrison said it appeared there was a misconception that the king had the “power to grant or refuse the Royal Assent conferred by Clause 56 of the Constitution”.

Dr Harrison recommended that the government try to get the king to alter his views on his powers by “reasoned persuasion”. Seeking a judicial ruling is also an option.

The government spokesperon said the Prime Minister wanted to talk to the king first as he wanted to make sure the constitution was correctly interpreted and followed through.

He said the Prime Minister believed the king would consider Dr Harrison’s advice favourably.

Vetoed by king
Minister of Justice Vuna Fa’otusia said many of the amendments to laws and the constitution passed by Parliament were vetoed by the king because of the Judicial Committee.

The Judicial Committee was comprised of some law lords and was chaired by Lord Dalgety of Scotland. The minister said if the committee did not agree with laws and amendments to the constitutions which were already passed by the Parliament the king would reject those laws.

Dr Harrison said the Law Lords played no specific constitutional role and they did not have any constitutional function or role as scrutineers of legislation or the legislative process.

Royal Assent 2011:
56 Power of Legislative Assembly

The King and the Legislative Assembly shall have power to enact laws, and the
representatives of the nobles and the representatives of the people shall sit as one
House. When the Legislative Assembly shall have agreed upon any Bill which has
been read and voted for by a majority three times it shall be presented to the King
for his sanction and after receiving his sanction and signature it shall become law
upon publication. Votes shall be given by raising the hand or by standing up in
division or by saying “Aye” or “No”

This article is republished by Asia Pacific Report with permission.

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MIL OSI – Source: Evening Report Arts and Media

Review of laws passed by Parliament ‘not in Tongan king’s power’

King Tupou VI … 2010 Constitution “excludes” the King and Privy Council from “governing” the Kingdom. Image: Linny Folau/Matangi Tonga

By Philip Cass of Kaniva News

The King of Tonga has no right to judge the merits of legislation passed by Parliament, according to a New Zealand constitutional legal expert.

Dr Rodney Harrison said that under the 2010 Constitution, review and evaluation of the merits of legislation passed by the General Assembly did not fall within the scope of the king’s powers of sanction and signature.

Dr Harrison said the king had withheld or deferred his signature from a number of pieces of legislation because it was deemed to be inappropriate or unconstitutional.

He said the new Constitution excluded the King and Privy Council from the role of governing the Kingdom.

He said judgements about whether legislation was constitutional went against the doctrine of the separation of powers and the role and independence of the judiciary.

He said the Royal Assent Order 2011, under which the King and Privy Council purported to act, was therefore invalid.

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Dr Harrison was asked to give an opinion on the legality of the Royal Assent Order 2011 by the Prime Minister’s Office.

Real problem
However, Dr Harrison said challenging the validity of the Order in court would not solve the real problem, which was the regular deferral or refusal of royal assent for legislation that had been approved by Parliament.

“The underlying problem is not the legal validity of the Royal Assent Order as such,” Dr Harrison said.

“The underlying problem is the view currently held by His Majesty or at least by the Privy Council and, in particular the Law Lords as His advisors, as to the extent of the King’s power to grant or refuse the Royal Assent conferred by Clause 56 of the Constitution.

“It is that in my respectful opinion erroneous view of the King’s constitutional powers that needs to be addressed, hopefully by reasoned persuasion or if not, by judicial ruling.”

Dr Harrison said the old Tongan constitution made it clear that the three arms of government had to be kept separate as a safeguard for the proper running of the country and the safeguarding of the liberties of its people.

The Royal Assent Order 2010 challenged the underlying assumptions of the Tongan constitution. The Order allowed the King to appoint privy councillors as advisers and a Judicial Committee had also been established by the Privy Council in 2011.

Dr Harrison said any powers and functions conferred on any such committee, must be consistent with the overall scheme of the Constitution and any other statutory or fundamental legal principle.

King’s signature
Clause 41 of the Constitution required that “Acts that have passed the Legislative Assembly” must “bear the King’s signature before they become law”.

He said that under the new Constitution the king did not have complete discretion to refuse to sign an Act that had been passed by the Legislative Assembly.

He said changes to the constitution in 2010 had shifted the balance of power from the king to Parliament. This meant that the king should exercise his veto on legislation only in “truly exceptional circumstances and for compelling reason.”

Problems had arisen because the king had deferred assent to legislation passed by Parliament on the advice of Privy Councillors and the Law Lords appointed by the king to the Judicial Committee.

Dr Harrison said the Law Lords played no specific constitutional role, other than that of providing the King with advice.

They could not be permitted to operate de facto as judicial officers and did not have any constitutional function or role as scrutineers of legislation or the legislative process.

“The most fundamental problem with the Royal Assent Order is that it purports to confer on the Judicial Committee and ultimately the Privy Council power to review Acts duly passed by the Legislative Assembly and ultimately to determine whether each such Act is an ‘appropriate’ or ‘inappropriate’ recipient of the Royal Assent; and whether any such Act is or even may be unconstitutional,” Dr Harrison said.

Merits of legislation
“Under the new Constitution, review and evaluation of the merits of legislation passed by the General Assembly do not fall within the scope of the King’s powers of sanction (and signature).

“The ‘inappropriateness’ assessment falls foul of the new Constitution’s exclusion of the King and Privy Council from the role of governing the Kingdom. The constitutionality assessment does likewise, and in addition offends against the constitutional separation of powers and specifically the role and independence of the judiciary.

“If the assessments which the Royal Assent Order purports to authorise fall outside the constitutional powers of the King Himself, it necessarily follows that they cannot be empowered by means of the Royal Assent Order, as a mere Order in Council purportedly made pursuant to Clause 50(3) of the Constitution. On that basis, the Royal Assent Order must be seen as invalid.”

Dr Harrison said the Royal Assent Order was also invalid because it purported to confer the ultimate power of decision and assessment on the Privy Council, when it was only intended to provide a mechanism for giving advice to the King.

Media academic Dr Philip Cass is an adviser to the Kaniva News website. This article is republished by arrangement.

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MIL OSI – Source: Evening Report Arts and Media

Pōhiva rejects ‘secret agenda’ claims that he wanted to seize royal power

MIL OSI – Source: Evening Report Arts and Media

Headline: Pōhiva rejects ‘secret agenda’ claims that he wanted to seize royal power

‘Akilisi Pōhiva speaking to hundreds of his constituents at a meeting in Kolomotu’a on Tuesday. Image: Kalino Lātū/Kaniva News

By Kalino Lātū, editor of Kaniva News

Tongan Prime Minister ‘Akilisi Pōhiva told his supporters that if he had really wanted to take away people’s land and the royal powers he would have made himself Minister of Defence and Minister of Land at the last election.

Pōhiva made the revelation on Tuesday night when he spoke in front of hundreds of his Tongatapu 1 constituents at the Uaiselē Hall at Sipu Road in Kolomotu’a before Thursday’s snap general election, which boosted the Democrats with a landslide win.

He was rejecting claims by his political opponents that he had a secret agenda to take away people’s rights to their land and give it to the nobles.

Kaniva News was unable to publish anything on his speech immediately because of Tonga’s electoral law which prohibited the publication of any material that could promote a candidate within 24 hours of Thursday’s election.

In his speech, the Prime Minister said he struggled in 2014 to choose a minister for the Ministry of Land and His Majesty’s Armed Forces.

Pōhiva, who was re-elected to Parliament in Thursday’s election, said he lay down at home at night and “thought deeply” about the problem.

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‘Fragile’ future
He said he knew how “very fragile” the future of land and the defence services seemed in some people’s minds, especially the nobility and the royals while he – a man who had called for significant changes to the status quo in the past 30 years – was leading the country.

He finally made up his mind to appoint Lord Ma’afu from the nobility to the posts.

He thought the noble’s appointment could show the nation his ambition to bring about reforms that could bring more stability to Tonga.

He said politicians who campaigned against him during the snap election misled the people by telling them he was trying to unnecessarily remove the king’s power.

“That was not right,” Pōhiva said.

Protecting His Majesty
Pōhiva, whose critics accused him of wanting to “become king”, said he understood the way he wanted to protect the king put him and his government in a delicate situation.

The Prime Minister was referring to submissions from Cabinet to amend the constitution, including a proposal to reinstate the former Privy Council structure in which the king met with cabinet ministers in Privy Council.

The move was described by the Minister of Justice Vuna Fā’otusia as an attempt to make sure the king was directly informed first hand about government matters by the ministers because they were the ones who did government’s administration work.

Fā’otusia said the current structure was not secure because the Privy Council was filled with people who were not elected by the people and were not accountable to the public.

Pōhiva explained that amending the law would benefit the king and the people, but unfortunately his critics had twisted and demonised their intentions.

‘Dirty politics’
He described it as “dirty politics” and thanked his followers for helping defeat his rivals in the three decades he had been involved in Tongan politics.

Tuesday night’s meeting was repeatedly interrupted by applause and yells of support from the audience.

As Kaniva News reported on Friday, Pōhiva and his Democratic Party won 14 parliamentary seats which enabled them to form the next government without needing the help of the nobility or the independents.

It is understood Pōhiva and his cabinet were due to meet this weekend, although the line-up of the cabinet has not been announced yet.

Asia Pacific Report republishes Kaniva News stories with permission.

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