OPINION: Prime Minister Pōhiva Tu’i’onetoa has used the Constitution to defend his failure to take action against the Governor of Ha’apai after he was found guilty of unlawful possession of turtle meat.
Tu’i’onetoa has cited Clauses 23, 54 and 55 to justify not taking action.
Kaniva News believes the Prime Minister’s argument is flawed and that Clause 54 of the Constitution outlines his powers, while Clause 55 underlines the Governor’s legal and Constitutional obligations. Clause 23 is a power given to the judiciary to make sure a person who is convicted of a criminal offence and sentenced to imprisonment for more than two years would not become a minister or governor.
PM has more power
We believe the Prime Minister is wrong because clause 54 has given him more power over his ministers and governors no matter how significant or insignificant the offences they have committed, than the power clause 23 has given to the judiciary.
Tu’i’onetoa told Parliament he would not take action against Governor Viliami Hingano Manuopangai after the Governor was convicted and sentenced in the Supreme Court for breaching a law Manuopangai is obliged to ensure his people do not break.
Manuopangai, who was MP for Ha’apai No 12 until 2015, has been spoken of as a candidate for the Prime Minister’s PAK party to challenge sitting Democrat MP Mo’ale Finau at the next election.
Innocent until proven guilty
The Prime Minister has already clearly laid out the house rule for his ministers or governors and said the key for dismissing them if they misbehaved was the principle of being presumed innocent until found guilty.
He meant that if a Cabinet minister or governor became involved in serious allegations or court case he would only act against them if they were convicted by the courts.
Governor Manuopangai was found guilty and fined TOP$20,500 in the Supreme Court of unlawful possesion of 198 kg of turtle, but Tu’i’onetoa said the Constitution did not allow him to sack Manuopangai.
Attempt to divert attention
Tu’i’onetoa also told Parliament the government would not interfere with the judiciary, and that the Governor was free to lodge an appeal within 42 days after his sentence. He was sentenced on May 19.
The Prime Minister urged Parliament last week not to disobey the Constitution or leave the law aside because of their own personal opinions towards Manuopangai.
However, his plea could be seen as an attempt to divert attention from the fact that he has a responsibility to respond to the governor’s conviction appropriately.
Clauses 23 and 54 are independent
Clauses 23 and 54 are two separate powers given by the Constitution to the judiciary and the Prime Minister. The most important point here is that it appears the Prime Minister can recommend the dismissal of the governor at any time. The provisions of Clause 23 do not appear to prevent the Prime Minister from dismissing or forcing a governor or a minister to resign.
Kaniva News believes the Prime Minister’s reasoning for not taking any action is misguided. Any action taken by the Prime Minister with respect of a conviction would be justified by Clause 54, which it does not clash with Clause 23.
Clause 54 says: “The King shall appoint Governors to Ha’apai and Vava’u on the advice of the Prime Minister.” This means the power to dismiss the governor rests with the Prime Minister and the king’s prerogatives.
It is also a matter on which the Prime Minister must use his conscience.
Although Tonga’s Parliament does not formally accept conscience and pragmatic approaches in a legal sense, technically such issues can arise. Even when we might expect them to vote as a block, nobles and people’s representatives have voted according to their conscience rather than on party lines, on certain issues.
Most of the Cabinet Ministers in the past included ministers who resigned according to their conscience did so because they did not want their continuation in the post to cause further distractions.
No interference with judiciary
If the Prime Minister stood down Governor Manuopangai temporarily while he was filing an appeal, such a decision would not be seen as interfering with the judiciary. One power lies with the Prime Minister, the other with the courts.
Governor’s role model
Kaniva News believes that Manuopangai has breached his constitutional obligation to enforce the law to his Ha’apai people.
The Prime Minister appears to have ignored the fact that Clause 55 clearly tells us that the sole responsibility of governors is to ensure their people follow the law. He has not made a case for keeping Governor Manuopangai in office, when his duty is to tell the people of Ha’apai, whose livelihood relies on fishing, to follow the law on turtle meat – a law he has been found to have broken.
The best thing for the Prime Minister to do is to stand down Manuopangai and let him appeal his conviction. If he is acquitted he may be re-appointed – on Hon. Tu’i’onetoa’s recommendation – by the king.
FAKAMATALA FAKATONGA NOUNOU
Kuo mahino ‘eni he’ikai pe fai ‘e Tu’i’onetoa ia ha me’a ki he kōvana Ha’apai hili hono tautea’i ia ‘i he fakamaau’anga’ ‘i hono maumau’i ‘o e lao ‘oku ‘uhinga ai ‘ene kōvana’ ke fakapapau’i ‘oku tauhi lao ‘a e kakai ‘o Ha’apai. Pea na’a’ ne fakahā ‘eni ‘i Fale Alea he uike kuo ‘osi’. ‘Oku faka’apa’apa’i pe ‘ene tu’utu’uni’ ka ‘i he taimi tatau ‘oku ‘i ai e ngafa ‘o e mitia’ ke sivisivi’i ene faka’uhinga’ pe ‘oku fai he ngaahi makatu’unga lelei, totonu mo taau pe ‘oku ‘ikai. Ko e vakai ‘a e Kaniva’ ‘i he fakamatala faka-e-fakakaukau (opinion) ko ‘eni’ ‘oku ‘i ai ‘a e tōnounou mo e matavaivai lahi he faka’uhinga ‘a e palēmia’ pea ‘e lava pe ke mau pehē kuo’ ne takihala’i ‘a e Fale Alea’ mo e kakai ‘o e fonua’. Kuo kalo e palēmia’ ki he kupu 23 e konisitūtone’ kae tuku e kupu 54 ‘oku ne foaki ‘a e mafai lukufua mo lahi ange ia he mafai ‘oku foaki ‘e he kupu 23 ki he fakamaau’anga’. Ko e kupu 54 ‘oku ne ma’u ai e mafai ke ne tauea’i ha minisitā ‘o tatau pe pe ko e hā e lahi hono tukuaki’i pe tautea he fakamaau’anga’. Ko e kupu 23 ‘oku fakangatangata pe ia ki ha taha kuo mo’ua ngāue pōpula laka hake he ta’u ‘e ua’ pe lolotonga fai ha’ane tangi tuku kehe kapau kuo fakamolemole’i ‘e he tu’i’. Pea tokua ‘i he faka’uhinga ‘a Tu’i’onetoa ‘oku hao ai ‘a Manuopangai he na’e ‘ikai foki mo’ua ngāue pōpula ia. Ka ko e me’a ‘oku vaivai ai e faka’uhinga ko ‘eni’ he ‘oku ‘ikai ‘aupito kaunoa ‘a e kupu 23 ia ‘i hono mafai (perogative) he kupu 55 ‘a ia kuopau ai ke ne pule ki hono fakanofo, tuku ki tu’a pe tautea’i ha’ane minisitā pe kōvana kuo tukuaki’i pe mo’ua ‘i ha’ane faihia. Ko e mafai kakato ia ‘oku ma’u ‘e he palēmia’ ta’e ha kākunga ki ai ‘a e fakamaau’anga’. Pea ‘oku foaki ia ‘e he konisitūtone’ ke vave ma’u pe ha’ane faitu’utu’uni ke fakapapau’i ‘oku ‘ikai ma’u ‘a e fu’u vāhenga lahi mo monū’ia ‘i he lakanga minisitā mo kōvana’ ‘e ha ni’ihi lolotonga ‘oku fai e femamahi’aki mo e vālau ‘a e kau li tukuhau’ ‘i hanau tukuaki’i pe ‘ulungaanga ta’etaau pe maumau lao. Pea ‘i he keisi ‘a Manuopangai, ‘oku lau ia ko e hia mamafa he kuo’ ne toe maumau’i pe ‘e ia ‘a e lao ‘oku tu’unga ai ‘ene hoko ko e kōvana’. ‘Oku hanga ‘e he keisi ko ‘eni ‘o tesi ‘a e konisenisi mo’ui ‘o e palēmia’ mo e loloto e maama fakalotu mo e ako ‘oku’ ne ma’u’. ‘Oku taha mātē pe fatongia ‘o e kōvana’ ‘oku tala mai ‘e he konitūtone’ kupu 55. ‘A ia ko e pau ke ne fakapapau’i ‘oku muimui ‘a hono kakai Ha’apai’ ki he tu’utu’uni ‘a e lao’. ‘E anga fēfē ke fakamālohi’i ‘e Manuopangai ‘a e kakai ‘o Ha’apai’ ke ‘oua na’a nau maumau’i ‘a e lao fekau’aki mo e kakano’i fonu’ lolotonga ia’ na’e mo’ua ia ‘i he’ene maumau’i ‘a e lao ko ia? Ko e fakamanatu pe ki he palēmia’ ko hono ngafa ke faitautea’ ‘oku ‘i he kupu 54 ia pea ‘oku ‘ikai ha kaunga ki ai ‘a e kupu 23. Ko e ongo mafai kehekehe ia ‘e ua ‘o ‘ikai ta’ofi ‘e ē ‘a ē. Pea kapau te ne fai hano tautea ‘o Manuopangai he taimi ni’ lolotonga ‘oku te’eki fai ‘ene hopo tangi ‘oku lau’ ‘e ‘ikai ‘aupito ha’ane uesia ‘e taha ‘ene tu’utu’uni ko ia’ ‘a e fakamaau’anga’ ai hangē ko ‘ene faka’uhinga ‘i Fale Alea’. Mole ke mama’o ke taku ko ha’ane kaunoa ia ‘i he fatongia ‘o e fakamaau’anga. ‘Oku hala ‘aupito e fo’i faka’uhinga ia ko ia. ‘Oku aata mai leva heni ‘a e fakakaukau ‘oku ‘ikai fai ‘ene tu’ut’uuni ko ‘eni ‘i ha ‘uhinga taau mo lelei mo e vakai atu a e kakai totongi tukuhau pea ‘oku ‘atā ai ki he kakai ‘o e fonua’ ke nau faka’uhinga’i pe ko hā ‘oku kei vilitaki ai ‘a e palēmia’ ke malu’i ‘a e kōvana’. Kuo ‘i ai foki e vavalo ‘a ha ni’ihi ‘oku taumu’a ‘a e palēmia’ pea mo ‘ene paati PAK ke kemipeini’i ‘a Manuopangai ke hū ki Fale Alea mei Ha’apai he fili hoko’. Pea kapau ‘oku tonu e faka’uhinga ko ia’, pea ta ‘oku ‘ikai tokanga ‘a e palēmia’ ia ki he lelei ‘a e kakai li tukuhau’ mo hono tauhi malu ‘e he kakai ‘o Ha’apai’ ‘a e lao’ ka ko ‘ene lelei pe ia ‘a’ana tokotaha mo ‘ene paati fakapolitikale’.