Kaniva Commentary
Yesterday’s report on the Land Court ruling against Lord Nuku has led to calls from Democrats for the Noble to stand down as Police Minister.
Democrat supporters also said it raised serious questions about trust in the government.
It has also revived questions dating to 2017 about the fairness of the Constitution to all Tongan MPs and political candidates.
As Kaniva News reported yesterday Lord Chief Justice Whitten said in his summary of a Land Court decision that Lord Nuku had refused to co-operate with the court, tried to cover up his real financial position and tried to avoid responsibility for millions of pa’anga worth of debt.
Judge Whitten made the comments in his summary of a hearing of an application to have an earlier judgement against Lord Nuku enforced.
The court heard that Lord Nuku owed just over TP$4 million.
In 2017 Judge Scott ordered Lord Nuku, Yanjian Group Co and Yanjian Tonga Limited to pay Lord Luani TP$5,556,000.
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The amount was later reduced to TP$3,380,335 with costs and interest at the rate of 10% per annum from that date until satisfied.
In his summary of the proceedings, Lord Chief Justice Whitten said that Lord Nuku had failed to provide any documents supporting his claims about his financial status.
“I conclude that it is more likely than not that Lord Nuku has or has had other significant sources of income which he has not disclosed or not fully disclosed in this proceeding,” the judge said.
“In that regard, I note that the entries in the one bank statement produced bear no resemblance to the levels of financial transactions about which Lord Nuku gave evidence.
“That observation alone reinforces the view that it is more likely than not that he holds, or has held, personally or beneficially, other accounts or has otherwise dealt in substantial cash amounts which have not been disclosed in this proceeding.
“For those reasons, I am of the view that upon analysis of the available evidence, it is reasonable to infer that Lord Nuku’s actual income is very likely to be substantially greater than just his Parliamentary salary, and housing and nobles allowances.”
Trust
Commenting on the Global Democracy Movement Facebook page, Democrat supporters claimed the Prime Minister needed to understand that the situation had caused the public to lose hope and trust in him.
They said the situation has caused the public to mock the government and fear there was growing complacency about law and order.
They said that as a Minister Lord Nuku should lead by example and present a good image of the country. The Police Ministry was one of the most important portfolios and its leaders should have clean records.
Online discussions have encompassed comparisons with the dismissal of MP ‘Akosita Lavulavu by the late Prime Minister ‘Akilisi Pohiva after the then Minister of Internal Affairs was charged for obtaining by false pretenses and three counts of knowingly dealing with forged documents. Lavulavu who is still awaiting court hearings, is the current Minister of Tourism and Infrastructure.
Debaters also discussed the case of former Prime Minister and Speaker Lord Tu’ivakanō who received a suspended sentence and a fine for passport, perjury and firearm offences. After his sentencing he still held his seat in Parliament.
They also discussed the charges laid in 2010 against Lord Tu’ilakepa, the then Speaker of Parliament, after Australian police alleged that he was conspiring with the South American drug lord, Obeil Antonio Zuluaga Gomez, to ship cocaine to Tonga to sell in markets in Australia and China. Prosecutors in Tonga later withdrew the charges against Lord Tu’ilakepa due to the complexity of the case. Lord Tu’ilakepa is now the Minister of Agriculture, Forestry and Fisheries.
Constitution
The Land Court ruling once again raises constitutional and legal issues.
In his comments on the Land Court judgement, Lord Chief Justice Whitten said the next general election was due in November 2021. Clause 65 of the Constitution provided that any person qualified to stand for Parliament could nominate as a candidate and be elected, unless an order had been made against them in any court in the Kingdom for the payment of a specific sum of money and the whole or any part of the money owed remained outstanding on the day they submitted their nomination paper.
“Accordingly, if by the time of nominations for the next general election, Lord Nuku has not paid or otherwise secured a release of the judgment debt, it is unlikely he will be eligible to stand for re-election,” the judge said.
As we reported in May 2017, Lord Nuku’s original conviction led to speculation that he would lose his title.
Under Clause 23 of the constitution, no civil servant or Member of Parliament convicted of a criminal offence can hold office under the government or be qualified to vote for nor to be elected a representative of the Legislative Assembly, unless he has received from the King a pardon, together with a declaration that he is free from the provisions of this clause.
The Land Act section 37 also states that if a noble has been convicted in the Supreme Court, he can be stripped of his title along with his estate.
However, Acting Attorney General ‘Aminiasi Kefu said at the time that Clause 23 of the constitution and Section 37 of the Land Acts only applied if the Noble was convicted in the Supreme Court of criminal offences that entailed a jail sentence of two years or more.
The Acting Attorney General said Lord Nuku was not convicted in the Supreme Court of criminal offence. He was convicted and sentence in a civil court case and so he would retain his title and estate.
In November 27 the Acting attorney General said Lord Nuku’s debts would not affect his election to Parliament unless the constitution was changed,
He said Clause 65 of the Tongan Constitution stipulated that a candidate for Parliamentary elections had to get a written clearance from the Supreme Court and Magistrates Court showing they had no record of outstanding order before they could register to become a candidate.
Hon. Kefu said that clause did not apply to the Noble’s Members of Parliament.
“The prohibition was only intended for the people’s Parliamentary representatives,” Kefu told Kaniva News.
The Acting Attorney General said the prohibition counted from the day the candidates submitted their “letter” to register as candidates.
“There is no such “letter” to be handed in by the nobility,” he said.
It is unlikely that the dispute between Lord Nuku and Lord Luani has seen its last day in court.
While the eventual financial outcome will be a matter for the courts, the issues it has raised are political and constitutional. The government, of course, cannot interfere in the courts, but it must at least acknowledge that there is concern, in some sectors at any rate, about the propriety of Lord Nuku’s Parliamentary position.
More importantly, the case continues to raise questions about whether or not the rules regarding eligibility to stand for Parliament are applied equally to Nobles and commoners. There is also the matter of why a difference is made between a criminal and a civil judgement, especially one in which such enormous amounts of money are involved. These are matters that must be resolved.
In fact, I have no more faith in the current administration of PM Tu’i’onetoa, this administration is complicit in protecting wrong doers and their corruption.
Tonga’s Constitution is problematic due to some clauses that are biased or give preferential treatments giving nobles entitlements over and above the rest of the members of parliament who have been elected by the people. There is an urgent need to move Tonga more toward a democratically run country and requires the government to address clauses or loopholes in the Constitution to address issues of equality and human rights.
It raises the question of the “legitimacy of nobles” in Tonga, a newly set up British system by the Methodist Wesleyan missionaries in the 19th century that no longer exist in Europe. Tonga in pre-Christian missionaries was ruled by Tu’i Tonga and his Falefa (skilled advisers) of the Kauhala Uta (aristocratic status) that spanned from 950 A.D. to the mid-19th century when the Methodist missionaries from Sydney, Australia arrived and converted Tonga into their faith. A review of Tonga’s Constitution by looking at the form of the traditional ruling pre-Christian missionaries might be more fair and democratic.