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

King’s second son’s noble rights announced in Tonga Gazette

MIL OSI – Source: Evening Report Arts and Media

Headline: King’s second son’s noble rights announced in Tonga Gazette

Prince Ata … Mormon prince has entitlements gazetted in Tonga. Image: Kaniva News

By Kalino Latu in Auckland

King Tupou VI’s second son is the lawful successor to the hereditary noble title and estate of Ata, it has been announced in the kingdom of Tonga Gazette.

It said Viliami ‘Unuaki-‘o-Tonga Mumui Lalaka-mo e-‘Eiki Tuku’aho was entitled to the hereditary estate belonging “to the title to which he has succeeded together with the rents and profits thereof and all other rights and privileges attached to the title as from 25 September 2006”.

The King’s order comes after he sent former Prime Minister Lord Tu’ivakanō and some royal guards to intervene in a baptism ceremony that would have made Prince Ata a Mormon three years ago.

The prince drew back, but a year later he was baptised as a Mormon in Hawai‘i.

As Kaniva News reported at the time, an unconfirmed report said the King later warned Prince Ata he could have some of his princely privileges revoked if he was baptised into the Mormon church.

It is believed he was the first prince of Tonga to become a Mormon after his aunt, the late Princess ‘Elisiva Fusipala Vaha’i, became the first member of the royal family to join the Church of Jesus Christ of Latter-day Saints in the 1980s.

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The Tongan constitution does not say that successors’ rights to the throne will be affected by their religious beliefs.

The royal family are members of the Free Wesleyan Church of Tonga.

It was unclear why the announcement was published on November 23, 2017 more than 11 years after the 29-year-old prince was appointed in 2006.

Prince Ata’s estates
Prince Ata is fourth in line to the throne. The noble title was previously held by his father.

In 2006, the palace office announced the late King George V had appointed him to the noble title Ata.

It said the appointment was to be effective from September 25, 2006.

Ata’s hereditary estates are Kolovai in Tongatapu and the island of ‘Atatā, 10 kilometres North-West of Nuku‘alofa.

As Kaniva News reported last year, Prince Ata had joined Mormon church leaders who held the first Sunday prayer service for members of the Church of Jesus Christ of Latter-day Saints on the island of ‘Atatā.

The service marked a milestone in the history of the Mormon church on the island.

In the past they have had to make a 30 minute crossing to Tongatapu, the main island of Tonga, to attend Sunday services and church meetings there.

The Gazette
The announcement by His Majesty’s Lord Privy Seal Tēvita Malolo is published verbatim below.

“In Exercise of the powers conferred by Section 38 of the Land Act, His Majesty King Tupou VI hereby Orders to be published in the Gazette that:

Viliami ‘Unuaki-‘o-Tonga Mumui Lalaka-mo e-‘Eiki Tuku’aho is the lawful successor to the hereditary noble title and estate of: ATA and shall possess and enjoy the hereditary estate appurtenant to the title to which he has succeeded together with the rents and profits thereof and all other rights and privileges attached to the title as from 25 September 2006.”

The Land Act
The relevant provision of the Land Act says:

“King to publish name of lawful successor (1) Upon the death of a holder of an hereditary estate or upon being convicted of a criminal offence and sentenced to imprisonment for more than two years or upon his being certified as insane or imbecile by a medical officer,

His Land Act CAP. 46.02 Section 39 to 2016 Revised Edition Page 25 Majesty shall cause the name of the lawful successor to the title of such holder to be published in the Gazette together with the date of his succession thereto which shall be the day following that on which the death of the holder took place or on which the holder was convicted of a criminal offence and sentenced to imprisonment for more than two years or was certified by a medical officer as insane or imbecile.

25 (2) On a convenient day not more than 6 months after the date of such publication, or, where the lawful successor is on such date a minor, 6 months after the day he attains the age of 21 years, His Majesty shall summon the person so named to appear before him in the Privy Council and there to take the oath of allegiance set out in Schedule VII. (3) The clerk of the Privy Council shall keep a roll of all persons holding hereditary estates.”

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