Taranaki Daily News

Report finds no reason for Tonga’s law lord structure

- Michael Field

Nearly a dozen New Zealand lawyers are thought to be in the queue to become Tonga’s next chief justice of Tonga but a report prepared for the country’s Ministry of Justice suggests they are heading into chaos.

The report is highly critical of the existing judicial structure, saying it could be a ‘‘recipe for tyranny’’.

‘‘The present constituti­on of Tonga can lay claim to being the most poorly structured and drafted constituti­on of any country in the Commonweal­th,’’ the report says.

It’s ‘‘truly a very sad state of affairs in a kingdom that has one of the world’s oldest surviving written constituti­ons’’.

A near-absolute monarchy for much of its modern life, Tonga experience­d growing calls for democracy through the 1990s. In 2006, soon after George Tupou V became king, Nuku’alofa exploded in riots that destroyed much of the town. Rioters targeted the new king’s businesses.

Just before he staged a lavish coronation in 2008, he renounced much of his power in favour of greater democracy, leading to a new 2010 constituti­on.

Until then Tonga had a wellfuncti­oning independen­t judiciary but the new king, who died in 2012, left a poison pill by creating new positions, including lord chancellor, law lords and a privy council, that were not accountabl­e to the government. Tonga’s Ministry of Justice commission­ed an independen­t report as part a wider government programme to improve the kingdom’s governance, accountabi­lity, transparen­cy and the rule of law.

The Commonweal­th Fund for Technical Cooperatio­n funded a UK-based senior counsel Peter Pursglove to write it.

He listed figures he met, including Justice Minister Clive Edwards, former Tongan chief justice Sir Gordon Ward and former prime minister Fred Sevele.

Pursglove’s report, which has gone to cabinet with recommenda­tions for changes, says Tonga has ended up with an unfortunat­ely unique judicial system, lacking transparen­cy and accountabi­lity and has become autocratic.

‘‘No reasoning or justificat­ion has ever been given for the creation of a judicial structure based on, what are to Tonga, alien institutio­ns with no legal, cultural or historical ties to the kingdom,’’ Pursglove says.

He offers no explanatio­n for how Tonga ended up with its failed judicial system, but highly placed legal sources told Fairfax that the damage was done during Tupou’s reign when he named a ‘‘law lord’’, for the first time, one-time Scottish sheriff Ramsay Dalgety.

A source said ‘‘Lord Dalgety,’’ as he is called, retains a key role behind the scenes.

He was an official in the company that owned the ferry Princess Ashika that sank in 2009 with the loss of 74 lives. He was arrested for perjury over Ashika but Tongan Supreme Court Justice Charles Cato, an Auckland lawyer working in Tonga’s courts, dismissed the charge.

Pursglove said the judicial system was not only unworkable but incompatib­le with the principles of constituti­onal monarchy and democracy.

He says the new role of lord chancellor is not necessary given that Tonga has one of the world’s smallest judiciarie­s. He questions the nature of the role and that of judicial independen­ce and says: ‘‘To give someone complete discretion and independen­ce and to permit him to carry out his duties without any interferen­ce whatsoever from any person or authority is to set that person above the law and is a recipe for tyranny.’’

Judges’ salaries used to be funded by New Zealand and Australia, but when the lord chancellor set new salary scales equating Tongan judges’ salaries with those in New Zealand, the aid donors backed out.

Now Tonga has to find its own money to pay them.

Pursglove is puzzled at Tonga having ‘‘law lords’’, saying it is ‘‘an example of an archaic title being adopted from the United Kingdom without any reasoning or justificat­ion being given for the creation of what is in Tonga an alien institutio­n with no legal, cultural or historical ties to the kingdom’’.

Tonga now has four law lords, including Dalgety, ‘‘holding what is now a defunct title transplant­ed into Tonga from the United Kingdom’’.

His report is also critical of the role of attorney-general who is principal legal adviser to the cabinet and the government but is also in charge of criminal proceeding­s. It raises the question of whether the role is impartial.

Pursglove noted the role did not require the attorney-general to speak Tongan, which he considers a severe handicap in addressing the legislatur­e and cabinet.

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