By Kalafi Moala
October 3, 2020: Of the three branches of government in Tonga, the Judiciary is the last bastion of our governance structure that remains relatively free from the taint of corruption. The other two branches, the Executive and the Legislature have had their days of controversy, scrutiny, and critical review. They have been found wanting, and a major part of our problem as a developing nation is largely founded on the decision-making, the policies (or lack thereof), and practices put into motion by the latter institutions of our government.
Decisions that are made in the Executive branch can be far reaching in their benefits or damages to the general populace. And the same goes for Parliament in the legislations they pass in the House.
There have been cases in these two branches of government when members of Parliament were prosecuted and convicted; and, also, where members of Cabinet have either been asked to resign or simply dismissed for breaches of law.
But just as there has not been the kind of scrutiny given to the Judiciary, there are issues that need to be closely watched so as to ensure that the principles of good governance and justice are thoroughly applied in the Judiciary. And this is more apt at a time when the door is more open for the appointment of local judges, instead of non-Tongan judges from overseas.
There are the obvious vulnerabilities among locals with the lack of neutrality and possible excessive subjectivity in judgments. This was the chief reason for the many years of having only foreign judges in the Supreme Court, an idea held strongly and propagated by the late King Taufa’ahau Tupou IV. Foreign judges do not necessarily become as subjective compared to the locals due to influence of a complex socio-culture that must be accountable to the rule of law.
But in an unprecedented move about two years ago, renowned lawyer, Mr. Laki Niu, was appointed as the first Tongan Supreme Court Judge. Before his appointment, the Supreme Court judges, including the Chief Justice, were either from the United Kingdom, Australia, or New Zealand.
The funding for the payment of those judges came from both Australia and New Zealand. However, the funding has now ceased. Tonga is now taking up the payment of the judges, local or foreign.
The current process for the appointment of these judges are in the hands of the Judiciary Panel made up of the Lord Chancellor, Tavake Afeaki as Chairperson; Chief Justice Michael Whitten, QC; Attorney General Linda Folaumoetu’i; Lord Dalgety and Lord Tupou as law lords.
Reviewing the judicial process or taking a critical look at how the administration of justice works (or not) in Tonga may need to be done on a regular basis, and to be reported publicly. Whatever review and assessment that needs to be done about the Judiciary need to have the involvement of qualified independent legal professionals from outside. And it may also be helpful to include those from other community spheres to give input.
But there are questions raised concerning the selection process applied to judges, particularly Supreme Court judges. The ultimate authority that appoints judges is His Majesty in Privy Council. When there is a vacancy, it is advertised, and the panel would select and make recommendation to His Majesty for appointment.
One of the issues pushed by the previous Government led by the late ‘Akilisi Pohiva was to shift the responsibility of appointments of judges from His Majesty to the Government (the Prime Minister and Cabinet). They also wanted the appointments of the Attorney General and the Police Commissioner to be the responsibility of the Government instead of the Monarch.
These motions in Parliament however were seen by most MPs as well as the Public, as a frontal attempt to substantially reduce the power of the Monarch. The motions were sidelined. The Monarch, it was argued, must continue to hold the balance of power, for he has already given away much of his executive power as a direct result of the 2010 Constitutional amendments.
Lord Dalgety, who is a Law Lord, and member of the Judiciary Panel, explains that the Judiciary Panel in examining applicants require that they have practiced law for a minimum of 10 years with unlimited jurisdiction.
“The applicant must also have a proven track record as a lawyer or senior counsel,” said Lord Dalgety. “And if the applicant is an expatriate, he needs to be familiar with the Pacific. He or she needs to have substantial legal and judicial ability.”
Another requirement by the panel for applicants is their physical and mental fitness and health. They must bring a medical report that attests to good health. It is this aspect of the requirements by the Judicial Panel that the selection of Laki Niu has been questioned by some. Justice Niu is alleged to have had physical and mental health issues prior to his selection.
In relation to expatriates, Lord Dalgety said, the applicant must have his legal and judicial training applicable to the legal and socio-cultural orientation of Tonga. “They need to be someone from British Commonwealth countries, not Russia or China,” he said.
There are 20 judges in Tonga, three of them Supreme Court judges. The Chief Justice, Michael Whitten, QC, is from Australia; Justice Charles Cato is from New Zealand; and Justice Laki Niu is local.
A vacancy is coming up to replace Justice Cato. He leaves in November. The vacancy is being advertised. It is expected there would be Tongan applicants for the post, now that the door is open for Tongan judges in the Supreme Court. Not that it was ever closed, but there was no precedent set; not until the appointment of Laki Niu.
There are questions being raised as to why there are so few Supreme Court judges, especially at a time when there is confirmation of backlog cases on the rise; some have been awaiting trial for many months.
Dealing with the backlog of cases is something Chief Justice Whitten is genuinely concerned about. In August he expressed that over the last 12 – 18 months, there have been quite several drug offense cases piling up, and delays in these cases are delays in the execution of justice.
The recent appointment of ‘Elisapeti Langi, who was a prosecutor and magistrate, may be a big help in getting the backlog of cases heard. Ms. Langi’s appointment is only temporary for four months. But there are questions raised whether she has had the scrutiny that candidates for the Supreme Court bench must go through.
Recently, two prominent women lawyers were appointed as King’s Counsel. Both these lawyers are eligible for Supreme Court appointment, but if they become applicants, would the appointment as King’s Counsel be a conflict of interest? This may raise questions as to how a King’s Counsel, someone who advise the King on legal matters, may also be an applicant for a job that it is the King’s prerogative to appoint.
Mrs. Petunia Tupou is a renowned lawyer in private practice. Mrs. ‘Alisi Taumoepeau is a longtime lawyer who was prominently involved in Government. She is a former Attorney General, as well as Minister of Justice prior to the 2010 reform. Whether it matters or not with the current requirements of the Judicial panel, Mrs. Taumoepeau was forced to resign as Minister of Justice due to a breach of the Constitution by attempting and authorizing a contract extension for former CJ Anthony Ford, without the knowledge and approval of the His Majesty at the time.
There are other Tongan legal professionals who may be qualified and suitable for Supreme Court appointment, but the process of selection as administered by the Judiciary Panel, as well as the strict character and minimum ethical requirements for applicants, must need be administered and perceived to be above board.
In the case above board. there must not be any appearance of nepotism and conflict of interest. This would be most appropriate especially in the scrutiny and examination of Tongan candidates, compared to their expatriate counterparts, who may not be as vulnerable to the kinds of issues of local concern.
Late last year, seasoned lawyer Clive Edwards Sr., made references to the Office of the Attorney General as being so slow in bringing prosecution to cases that have been submitted to them. He brought up the fact that the AG’s office may be understaffed, and that good lawyers may be on leave or some have gone overseas for good.
And so, the appearance of tranquility at the Judiciary may not necessarily reflect the real situation. It is not a question of wrongdoing or misadministration, but rather a need for reform in effectiveness and efficiency of administration practices to enable better service, and therefore, swift justice from the Judiciary to the people of Tonga.