31st August 2017 TONGAN The Attorney General’s Office wishes to respond to the report in the Kaniva news website that was published on 29 August 2017, where it reported views made on Facebook by Mr Lopeti Senituli, former Government Chief Executive Officer for Internal Affairs and also Government advisor, urging the current Government to take legal action against His Majesty the King’s decision to dissolve the Legislatie Assembly. Mr Senituli stated that the Government should apply to the Courtfor an injunction against the dissolution of the Legislative Assembly, and also apply to the Courts to review that decision.
2 It is not customary for the Attorney General’s Office to engage in public debate over the law, especially when it is made in social media. However when such statements are made on a wrong interpretation of the law, that creates a real risk of misleading the public, and which may lead to contempt or ridicule of the Constitutional institutions of the Kingdom, and it has resulted in some traction with the public, especially with the international media, then it is a fundamental duty of the Attorney General to speak out to correct that error and potential misconception.
3 The Attorney General’s Office also believes that the proper place for resolution of differences of legal opinion should be in the Courts and not in the court of public opinion.
4 Mr Senituli is of course entitled to make and express his opinions. It is also appreciated that these are lay opinions, but even more so the need for opinions on legal matters to be accurate and restrained.
5 It must be made very clear that no one is barred from taking any legal action to the Courts, regardless if it is a strong or weak case.
6 The Attorney General’s Office’s view is that any legal action that will be taken against the dissolution of the Legislative Assembly will be dismissed summarily by the Courts, and therefore no such legal action should be taken.
7 Mr Senituli opined that His Majesty the King’s decision to dissolve the Legislative Assembly under clauses 38 and 77(2) of the Constitution may be subject to judicial scrutiny. He based his opinion on the Land Court case of Tupou Tongaliuaki Filo’auola Aleamotu’a v Fielakepa, [2015] Tonga LR 556 (Scott LCJ). He stated that the personal
Royal prerogative must be exercised “according to the letter and the spirit of the constitution [sic] and laws of the land”.
8 These are the reasons why this view is flawed in the law, and the misconception should be desisted imediately:
No provision in Constitution or laws of Tonga to support opinion
(1) Mr Senituli did not refer to any legal provision in the Constitution or the laws of Tonga to support his opinion.
Land Court held that His Majesty the King cannot be sued in Court on a challenge against exercise of a personal Royal prerogative
(2) The Land Court case relied upon by Mr Senituli ruled that His Majesty the King could not be made a defendant to the case because the Courts have no jurisdiction over His Majesty the King. The Land Court explained as follows:
[21] A distinction must, in my view, be drawn between the exercise by
His Majesty of unfettered royal prerogatives retained by him under the
Constitution, such as the power to confer titles (Clause 44) and the exercise by him either upon the advice of a body or person, of the powers specified in the relevant statute (e.g. Clause 50A(1) or Clause 50B).
[22] In Tu’ipulotu v Kingdom of Tonga (above) [[1997] Tonga LR 258] Hampton CJ held that in Tonga, as in England, the King in person (subject only to Clause 49) is immune from all actions at law whether civil or criminal:
“No proceedings are maintainable against the King in person. The Courts are the King’s court and the Courts have no jurisdiction over him”.
While the decision relates to Judicial review proceedings in the Supreme Court in my view the principle is equally applicable to the Land Court.
And in paragraph [27] it added that:
[27] Most of the previous cases dealing with the issue of contested hereditary titles may be found in Volume II, Tonga Law Reports. Some of those will be referred to later on in this judgment. In none of them, so far as can be seen from the report, was the Sovereign joined as a party. In my view the matters now before this Court for decision may be satisfactorily and comprehensively be dealt with without the need for any second defendant or third party to be joined.
Land Court case dealt with a personal Royal prerogative that is limited by the law:
appointment of successors to hereditary titles and hereditary estates
(3) The Land Court case dealt with different laws to the laws that applies in the dissolution of the Legislative Assembly. The Land Court stated in this case that the power to appoint successors to hereditary titles and hereditary estates is a personal Royal prerogative, and the Courts cannot direct His Majesty the King on making such appointments. However, the Courts can review the exercise of this particular power because of the procedures prescribed by law under sections 38(1) and 40(1)
of the Land Act, and the rules of succession prescribed by clause 111 of the Constitution. The Land Court stated this by saying that:
[25] In my opinion the powers and duties given to the King by Sections 40(1) and 38(1) [of the Land Act] are personal and not subject to direction by the Court. It follows that there is no basis for the King to be joined as a party when breaches of these sections are alleged.
[26] To say however that decisions made by the King pursuant to sections 40(1) [and] 38(1) are not subject to order is not to say that they are not justiciable at all. The Court retains the right and indeed the duty to analyse the actions taken and, when it is of the view that the parameters within which the royal prerogative must be exercised have been exceeded it may, in its discretion, declare that to be the case.
Privy Council confirmed that Land Court case dealt with a personal Royal prerogative limited by the law
(4) The limitation by the law of the personal Royal prerogative to appoint successors to hereditary titles and hereditary estates was confirmed by the Privy Council in the appeal from this Land Court case. The Privy Council stated as follows:
11 Relevant to the interpretation to be given Clauses 104, 111 and 112 of the Constitution is HM King George Tupou I’s address to parliament in 1875 as quoted by our distinguished predecessors in Tu’ipulotu v Hon Niukapu (supra) at 83:
I have made up my mind absolutely not the alter names or nominate chiefs so that the estate shall go with the title and the succession shall be from father to son forever. The Law of Succession is stated in the Constitution, and such succession shall be by blood relationship only …. Should there be any dispute it shall be tried by Justices of the Court in accordance with the usage of civilised Governments. You Chiefs of Tonga all of you who have titles estates when the Constitution came into force: I affirm to you the right of yourself and your children by marriage to hold and possess your titles and estates forever, as stated in the Constitution.
12 His Majesty [King George Tupou I] clearly contemplated that succession to the noble titles he had created to reinforce his reign and the unity and wellbeing of the Kingdom would henceforth devolve according to law and not by royal pleasure.
The personal Royal prerogative to dissolve parliament is not limited by the law
(5) The power to dissolve the Legislative Assembly under clauses 38 and 77(2) of the
Constitution is a personal Royal prerogative that has no “parameters” prescribed by any law, unlike the personal Royal prerogative to appoint successors to hereditary titles and hereditary estates. Accordingly, there is no basis for the Courts to analyse whether the decision taken by His Majesty the King to dissolve the Legislative Assembly has exceeded any legal parameters prescribed by the law.
The wording of clauses 38 and 77(2) of the Constitution puts this principle beyond doubt. Clause 38 provides that the King may dissolve the Legislative Assembly at his pleasureand command that new representatives of the nobles and people be elected to enter the Assembly. Clause 77(2) also provides that “it shall be lawful for the King, at his pleasure, to dissolve the Legislative Assembly at any time and command that new elections be held”.
9 The Attorney General’s Office therefore wishes to confirm that it is of the view, that the decision by His Majesty the King to dissolve the Legislative Assembly under clauses 38 and 77(2) of the Constitution was an exercise of a personal Royal prerogative that is not limited by the Constitution or the laws of Tonga, and therefore such decision cannot be reviewed by the Courts.
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For further information or clarification, please contact:
Mr ‘Aminiasi Kefu,
Acting Attorney General and Director of Public Prosecutions,
Attorney General’s Office
Telephone Numbers: (676) 24055/24007 (Office), (676) 25347 (Direct), (676) 7715314 (Mobile)
Facsimile: (676) 24005
Email: dpp@crownlaw.gov.to, aakefu@gmail.com