The former Prime Minister of Tonga who was behind the controversial 2010 constitution has defended his idea to remove the Attorney General from Cabinet and attached the position to the Privy Council.
The political and legal post was in Cabinet before a draft report submitted to Parliament by the Lord Sevele ‘O Vailahi government became the basis of Tonga’s new constitution in 2010.
Lord Sevele, who was Prime Minister of Tonga in 2006 – 2010, defended the decision to move the post during a Press Conference at the Tonga National Centre in Tofoa.
He told the conference it was his Cabinet’s idea to move the Attorney General from the “politicians” because the post was “sensitive.”
In justifying his idea, he told the conference to look at what was happening to the current government.
In Tongan he said: “Tuku atu ki tu’a e kau talēkita ko ee’ tuku atu e fa’ahinga ko ee’, tuku atu ki tu’a e fa’ahinga ko ee’.”
This translates as: “They fired those directors, they fired those people, they fired those people.”
He said that the behaviour of the government was inappropriate as it affected the dignity associated with those posts.
He said it also affected those who were being sacked because these posts were “sensitive” to the operation of the government and the nation.
In Tongan he said:
“Ko e lika ‘eni ‘a ‘Ene ‘Afio he taimi ko ia’ mo ‘emau sio ki he founga ngāue’ tonu ke to’o e me’a ko eni’ mei he mafai e kau politiki’. Fu’u pelepelengesi ‘aupito e me’a ko ‘eni’. Pea kapau ‘oku mou sio ki he ngaahi me’a ‘oku hoko he ngaahi ‘aho ni’….. ‘Oku ‘ikai ke hoa mo taau ia mo e molumalu mo e lele fuoloa ‘a e pule’anga’ kae ‘uma’ā e ngaahi lakanga ko ‘eni ‘oku pelepelengesi ki he fakahoko e faifatongia ko ‘eni ‘a e ngaahi lakanga ko eni ki he pule’anga mo e fonua’.”
Unanimous decision
The press conference was hosted by Lord Sevele, Noble MP Lord Nuku and MP Samiu Vaipulu. Lord Nuku was the Minister of Police in the Sevele government, while MP Vaipulu was the Minister of Justice and Attorney General.
Lord Sevele organised the conference so he could respond to a previous press conference called by Prime Minister ‘Akilisi Pōhiva. Lord Sevele said Hon. Pōhiva had wrongly accused him about the 2010 constitution.
Hon. Pōhiva said the Sevele government transferred some executive powers to the Privy Council without going through Parliament. Lord Sevele denied this and said this was a “serious allegation” by Hon. Pōhiva.
He said the 2010 constitution was approved by an unanimous ballot in the House.
In Tongan Lord Sevele said: “’I he miniti ko ē ‘o e Fale Alea’ na’e ‘ikai ha ta’e loto ia ki ai.”
He told reporters he had checked the Parliamentary record and he could confirm no one voted against the move. He did not distribute copies of the minute to the reporters although he distributed other statements to supports his response to Hon. Pōhiva.
Editor’s comment:
Lord Sevele’s response to why he moved the Attorney General to Privy Council gave rise to question about the problems the government has faced today. He referred to some actions by the Pōhiva government which he alleged were inappropriate, implying people had been sacked for political motives.
Was Sevele saying that the Pōhiva government made those decisions which he described as “inappropriate” because the Attorney General was not in Cabinet? Was he saying that if the Attorney General was in Cabinet these inappropriate actions could not have happened?
Lord Sevele’s contradictory response appears to highlight the advice by the Constitutional and Electoral Commission (CEC) which appeared in a report by a constitutional law expert questioning the legality of moving the Attorney General from Cabinet to Privy Council.
The report was written by Peter Pursglove and was endorsed by the Tu’ivakanō government in May 2014.
The Commission said: “When the Attorney General is a member of Cabinet, he must, as with the other ministers, normally attend all meetings and can advise Cabinet of the legal position and consequences of any decision before it is made. That may sometimes, avoid the need for subsequent correction and any attendant embarrassment that may cause,” the report said.
This ECE’s recommendation was not found in the 2010 constitution.
Lord Sevele told reporters it was the Parliament which approved the new constitution, but he failed to remind them the majority of the Parliament at the time were his government ministers and members of the nobles who supported the drafted report of the constitution Sevele submitted to Parliament.
Sir Gordon Ward’s report?
Kaniva News has learnt through a highly placed source that the final report by Tonga’s CEC was believed to have been totally ignored by the Sevele government.
The CEC, which was tasked with the preparation of the proposed new system of government for Tonga, which was put into place in January 2011, was chaired by former Chief Judge Sir Gordon Ward.
Instead, the Sevele government, is believed to have adopted a submission mostly written by Lord Dalgety which replaced the primacy of the Prime Minister and Cabinet with the Judicial Appointment and Disciplinary Panel.
Lord Dalgety is now the chairman of the Privy Council’s Judicial Appointment and Discipline Panel.
A report by veteran Pacific affairs reporter Michael Field said highly placed legal sources said the damage referred to by Pursglove in his report was done during king George V’s reign when he appointed former Chief Judge Ramsay Dalgety as a law lord.
The paper claimed Lord Dalgety played a key role behind Tonga’s 2010 constitution.
The Pursglove report referred to a recommendation by the ECE regarding the benefit of having the Attorney General in Cabinet. That recommendation was not found in the 2010 constitution.
Pursglove said the removal of the Attorney General from Cabinet to the Privy Council and the creation of the Judicial Appoinment and Discipline Panel were unconstitutional.
He also said the creation of the office of the Lord Chancellor has put the Lord Chancellor above the law and said it was a “recipe for tyranny.”
Lord Sevele and Lord Dalgety
Lord Sevele was Prime Minister when the MV Ashika sank in 2009 killing 74 people.
Some people were charged and jailed after the tragedy, including the captain of the vessel Makahokovalu Tuputupu, Acting Director of Marine and Ports Viliami Tu’ipulotu and John Jonesse the Managing Director of the Shipping Corporation of Polynesia Ltd, which owned the vessel.
Critics said the prosecution should have brought to justice everybody involved, including Lord Sevele who was accused of being instrumental in bringing the doomed vessel to Tonga.
Lord Sevele was reported as saying he didn’t think the vessel’s seaworthiness was responsible for its sinking.
Lord Dalgety was the secretary of the Shipping Corporation of Polynesia Ltd.
He was arrested for perjury over the sinking of the Ashika, but the Supreme Court dismissed the charges.
For more information
Tonga Chief Justice rejects Lord Sevele’s judicial review application
Minister says Lord Dalgety should not stay in other posts after leaving Commission
Pōhiva pursues expert’s advice to remove AG from Privy Council
