Prime Minister Pōhiva Tu’i’onetoa told media this evening that convicted fraudster and Cabinet Minister Akosita Lavulavu would stay in office until the 42-day appeal process was complete.
Akosita and her husband, ousted former MP and Cabinet Minister ‘Etuate Lavulavu, are set to be sentenced on July 2.
Tu’ionetoa again used the controversial Clause 23 of the constitution to defend his refusal to take immediate action against Akosita.
The Prime Minister told Kaniva News and other media in an e-mail that Clause 23 was re-enacted in 2013 and signed by the king to protect the right of the individuals, government clerks and senior officers who were accused and taken to court.
Final decision
Prime Minister Tu’i’onetoa said he would make a final decision after the appeal was completed, but he did not say what decision he would make.
He was emotional and asked the media to help him.
“It is not an easy task to make decision in judging another person because it is only a decision made by a human being who is also a sinner, its experience, wisdom and power given by God is incomplete,” Hon. Tu’i’onetoa said in Tongan.
“The decision maker is the same as the accused as they are both sinners. Only Jesus Christ is the righteous and can fulfill everything.”
Innocent until found guilty
When Akosita first appeared in court we asked Tu’i’onetoa whether he would force her to resign after a call by the opposition party. His response was that she was innocent until found guilty in court. Now Akosita has been found guilty and he said Clause 23 gave her the right to further remain in office until her appeal is completed.
He pleaded with the media to use his statement to enlighten the public and let the judiciary which is the third pillar of the country rule.
He said Tonga had its own constitution, law and democracy which was different from other countries who had complete democracies. He said he believed what he was talking about was in line with what the king wanted about the constitution. The king recently reprimanded Parliament and the Tu’i’onetoa government, saying they should learn from other countries’ democracies.
Editors’ note:
The Prime Minister’s media release appears to show he deeply felt for Akosita after she was found guilty, but did not say anything about the taxpayers and overseas donors such as New Zealand and Australia which funded the school grants which have been defrauded by the Lavulavus.
In our opinion article on Thursday we said we believed the Prime Minister had 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.
In his handling of Akosita’s case we believe the Prime Minister has made the same mistake and used the same misguided reasoning as he did over the Ha’apai governor.
Two separate clauses
We believe there are two clauses in the Constitution that deal with appointments and dismissal of government representatives. They are Clauses 23 and 51.
Clause 23 is the power given to the judiciary while the clause 51 gives the Prime Minister and the government another power.
Clause 23 says: “No person having been convicted of a criminal offence and sentenced to imprisonment for more than two years, shall hold any office under the Government whether of emolument or honour nor shall he 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 freed from the disabilities to which he would otherwise be subject under the provisions of this clause: Provided that the operation of this clause shall be suspended in any case until the expiration of 42 days after the date of the conviction; and in cases where notice of appeal or leave to appeal is given within 42 days after the date of conviction, until the determination of the appeal; and if the conviction is quashed on appeal or the sentence reduced to no more than two years imprisonment then this clause shall not have effect.”
Clause 51 says: “A Minister shall retain his position as Minister until – (a) his appointment is revoked by the King on the recommendation of the Prime Minister or in accordance with clause 50B.”
PM’s exclusive power
Clause 23 appears to have restricted the power of the judiciary to only those who are convicted and imprisoned for more than two years. Such people are not allowed to hold any government office unless they are pardoned by the king. It also restricted to convicts who appeal their conviction.
Clause 51 is called a prerogative or special power given to the Prime Minister over his Cabinet Ministers and there is no limit there for how significant or insignificant the crime, accusation or allegation involved. It appears this exclusive power given to the Prime Minister allows him to sack a Cabinet Minister at his pleasure whether they were innocent, convicted or at the centre of an allegation.
We believe these two separate constitutional powers were reasonable, but have various roles which needed to be clarified.
Respective roles
We believe the provision of Clause 51 gives the Prime Minister the right to use his conscience and action immediately to make sure the government offices are untarnished by serious allegations, controversy and distraction. It is a disciplinary power which relies on the Prime Minister’s principles and morals.
If it was not for this clause, the only options could be Clause 23 and we can imagine the anguish the kingdom could be in if it takes another 42 days for an appeal to be made. If the appeal is accepted it may take another months before a final decision is made. When that decision comes, the damage to the reputation of the government and the country may be very great.
In our opinion, it is important to understand that if the prime minister has sacked Akosita while she was awaiting his appeal that should not be regarded as a punishment for her guilty verdict. That is a matter for the Supreme Court to decide on July 2. Her dismissal by the prime minister should be seen as an attempt by the government to stop further distraction from the public because of her continuation in the office.
Suspended sentence
We also need to consider what might happen if the Supreme Court sentences Akosita to a two-year suspended sentence because she is a first time offender. According to the Constitution she would still have the right to stay in Cabinet. Given the Prime Minister’s repeatedly demonstrated inclination to take no action against Akosita Lavulavu, it seems likely he would keep her in Cabinet.
This would raise serious questions among Tonga’s citizens about the morality of having a convicted fraudster in such a position of power.
There seems little doubt that many people want the Prime Minister to remove Akosita from office immediately using his powers under Clause 51, rather than using Clause 23 as an excuse to do nothing.
Kaniva News believes the Prime Minister should force Akosita to resign for the good of the government and Tonga.
FAKAMATALA FAKATONGA NOUNOU
Kuo fakahā ‘e he palēmia’ ‘e kei hoko atu pe ‘a Akosita Lavulavu ‘i hono lakanga minisitaa’ ‘oua leva ke ‘osi ‘ene tangi ‘i ha ‘aho ‘e 42. Ko e faka’uhinga ‘a e PM ‘oku fai mei he kupu 23 pea ‘i he ‘aho’ ni kuo tuku mai ‘ene tali ‘o kau ai ‘a ‘ene akonaki faka-Tohi Tapu ko e konga ‘ene taukapo ma’a Akosita. ‘I he vakai ‘a e Kaniva’ ‘oku hā mai ‘oku ‘i ai ‘a e matavaiavai lahi he faka’uhinga ‘a e palēmia’ ki he kupu 23 ‘o e konisitūtone’ pea ngali ko ‘ene fai pe ke fakatonuhia’i’aki ‘ene ta’efiefai ha me’a kia Akosita’. ‘I he kupu 51 ‘o e konisitūtone ‘oku’ foaki ai ‘a e mafai ta’etoe’ekea ki he palēmia’ ke ne tuku ki tu’a ha’ane minisitā ‘o fakatatau pe ia ki he anga hono loto’ ‘ikai toe fiema’u ke ‘ai ‘uhinga atu ha minisita pe fakafepaki ki he’ene tu’utu’uni. Pea oku hā mai ngali ko e mafai he kupu 51 oku ‘ikai toe fiema’u ia ke tatali ki ha tangi pe hopo pe ha toe faka’uhinga. ‘Ikai ‘aupito. Ko ‘ene pehē pe ‘e he palēmia’ ke ‘i tu’a ha minisita ko e ‘i tu’a ia ‘a e minisitā ko ia’. Tonu foki ke mahino ‘i he anga e tui’ ‘oku ‘ikai ko hano tuli ‘e he palēmia ia ‘a Akosita, ‘o kapau te ne tuli, ko hano tautea’i tokua ia ‘ene hia kuo halaia ki ai ‘i he fakamaau’anga lahi ki hono ma’u kākaa’i e pa’anga vaeua miliona mei he pule’anga’. ‘Ikai ‘aupito ‘e toki tala tu’utu’uni ‘a e Fakamaau’anga Lahi ia ki ai ‘i Siulai ‘aho 2. Ko e ‘uhinga ki hono tuli ia ‘e he palemia’ ‘e kau ai ‘a e ‘uhinga he ‘oku ‘ikai fiema’u ke valau pe fakatupu hoha’asi ‘e hono ngaahi tukuaki’i mamafa faufau kuo fai’ ‘a e kakai pea uesia ai mo e pule’anga’. ‘Oku mahino lelei ‘a e ‘uhinga ko ‘eni ‘i hono ‘ai ‘i Nu’u Sila’ pea na’e ‘osi hoko ‘i Tonga ‘o tuku ki tu’a ‘a e kau minisita pea toe fakafoki pe ia ki loto. I he anga e fakakaukau’ ‘oku kehe ‘a e kupu 23 ia pea ko e mafai fakangatangata pe ia ‘o e fakamaau’anga’ ki ha taha kuo ngāue pōpula laka hake he ta’u ‘e ua’ pea toe tangi. ‘Oku ‘ikai ha kākunga ia ‘a e kupu 23 ki he mafai makehe ‘o e palemia he kupu 51 ko e ongo mafai kehekehe pe ia ‘e ua pea ‘oku na tau’ataina pe ‘ikai fepaki pe tukulolo ē ki hē. Ko e fehu’i – ko e hā kuo ala ai e palēmia’ ki he mafai ‘o e fakamaau’anga’ he kupu 23 ‘oku ‘ikai ko hano mafai ia kae ‘ikai ke ne ngāue’aki e kupu 51 ko hono mafai totonu ia ‘o’ona ke ngāue’aki’. Kuo lea lahi atu e kakai he me’a ni mo ui kiate ia ke tuku ‘a Akosita ki tu’a ngaue’aki hono mafai he kupu 51 ka ‘oku ‘asi mai ‘oku fakasiosio kehe pe ia. ‘I he’ene pehee’ ‘oku lava ke tau aofangatuku ko e faka’uhinga ‘a e palēmia’ mo hono kei fakalaloa’i holo ‘o Akosita’ ‘oku ‘ikai fai ia ki he ‘uhinga lelei mo e ngaahi pilinisipolo fakamōlale’ ‘a ē ‘oku taau ka ‘oku fai pe ki he’ene lele’ia pea mo malu’i e ki’i kakai tokosi’i mo’ui ta’efaitotonu ‘oku nau poupou’i ia mo ‘ene ngaahi taumu’a fakapolitikale’ mo fakatokosi’i.
