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King’s decision should be challenged in court: Senituli

Former civil servant, PM's advisor and prominent local Mr Lopeti Senituli


(This first appeared on Mr Senituli’s Facebook Page)

NUKU’ALOFA-August 30: 4.08pm (Nuku’alofa Times): I have been asked whether I stand by my opinion that former Prime Minister and current caretaker PM, Akilisi Pohiva and Cabinet should apply to the Supreme Court for an immediate injunction on the dissolution of the Legislative Assembly and for a judicial review of His Majesty’s proclamation to ensure that it is constitutional.

My answer is a big ‘YES’.

I say that with the greatest of respect to the Acting Attorney General, ‘Aminiasi Kefu and his opinion that His Majesty, King Tupou VI, had exercised his Persona Royal Prerogative, which he says is beyond judicial scrutiny.

I disagree with the Acting Attorney General.

The basis of my disagreement is the decision of the Supreme Court in 2016, (which was later endorsed on appeal by the Privy Council in 2016) relating to His Majesty’s decision to appoint the current Chief of Defence Staff of His Majesty’s Armed Forces to the Hereditary Noble title of Lord Fielakepa.

The Supreme Court declared His Majesty’s appointment as null and void. Part of their reasoning was that although it was His Majesty’s Personal Royal Prerogative to appoint Nobles of the Realm, he still had to make those appointments according to the law (the Land Act) and the Constitution.
So I agree that His Majesty, in dissolving the Legislative Assembly, was using his Personal Royal Prerogative, and is not required by the Constitution or any law to disclose reasons.

However, it is my opinion, His Majesty must use that Personal Royal Prerogative according to the letter and the spirit of the constitution and laws of the land.

The Legislative Assembly is the highest democratic mechanism in the Kingdom of Tonga and the current structure was adopted after the reforms in 2010, with the full approval of His Majesty’s predecessor, King George Tupou V.

The functioning of the Legislative Assembly, therefore, should only be disturbed or interfered with in extreme circumstances where the sovereignty and integrity of the country, as an independent nation state, is being threatened.

I do not regard the eight (8) reasons that the Hon Speaker, Lord Tu’ivakano, had released as good enough to warrant the dissolution of the Legislative Assembly.

They do not amount to a threat to the nation’s sovereignty and integrity as an independent state.

I classify the Hon Speaker’s eight reasons into two groups.

The first group I have classified as:
1. Alleged Threats to His Majesty’s Royal Prerogatives.
• The draft Bill to review or amend Clause 41 of the Constitution, which grants His Majesty’s authority to assent to all legislation adopted by the Legislative Assembly before they become law.
• The government’s earlier plans to sign and ratify CEDAW, thereby bypassing His Majesty’s authority under Clause 39 to make treaties and sign conventions on behalf of the country
• The government’s earlier signing of the PACER Plus agreement, which is a regional convention without prior authorisation by His Majesty in accordance with Clause 39.
• The draft Bill to amend the Constitution to remove His Majesty’s authority (Clause 31A) to appoint the Attorney General and to appoint the Police Commissioner (under the Police Act) and transfer these powers to the Prime Minister and Cabinet.

In my view the draft Bills that the Hon Speaker referred to should be allowed to be tabled and discussed by the Legislative Assembly and if necessary, the Legislative Assembly should conduct public and community meetings to discuss these proposals so that the whole country can express an opinion on it.

Dissolving the Legislative Assembly because of the fear of these alleged threats to His Majesty’s Prerogative is an extreme knee-jerk reaction of people who are afraid of the democratic process!

We should let the people hear and express their opinion on these proposals through their elected representatives in the Legislative Assembly as well as in public meetings on these proposals.

In respect of CEDAW and PACER Plus, Prime Minister Pohiva and Cabinet acted in accordance with legal advice that was given them by legally qualified people in government. (I know this because I was responsible for the CEDAW initiative.)

If that advice clashed with advice given His Majesty then that can be resolved by going to court for a declaration as to which advice is correct. It does not warrant dissolving the Legislative Assembly.

The second group of reasons I have classified as:

  1. Alleged Mismanagement by the Prime Minister and Cabinet.
    • Lying to the Legislative Assembly that Hon Etuate Lavulavu would be punished and not delivering on it.
    • Misleading the Legislative Assembly on the Pacific Games 2019 and continuing to collect the foreign exchange levy, though hosting the Games had been cancelled.
    • Raising their own salaries in response to a tax threshhold increase whilst the rest of the country carry the extra tax burden.
    • Petitions of impeachment not worth of the Legislative Assembly’s time and resources.

This second group of reasons I regard as specious.

These could have been dealt with by the Hon Speaker as he has considerable powers under the Rules of Procedure of the Legislative Assembly and under the Constitution (Clause 70) to punish members who behave in contempt of the Legislative Assembly.

They certainly do not warrant the dissolution of Parliament.
So I stand by my proposal for the former Prime Mnister and Cabinet to seek and immediate injunction and judicial review of His Majesty’s proclamation.


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