OPINION: PM has greater discretion under Clause 51 to sack convicted Akosita Lavulavu than Clause 23 of Constitution

    OPINION: Convicted Cabinet Minister Akosita Lavulavu will be sentenced tomorrow July 2 at 10am.

    Whatever her sentence, it will add a new chapter to the democrat MPs endeavour to push for more democracy in terms of good governance, transparency and accountability.

    Minister of Infrastructure ‘Akosita Lavulavu and husband ‘Etuate Lavulavu. Photo/Akosita Lavulavu (Facebook)

    In this opinion piece I will round up the debates and exchanges with the Prime Minister in the past two months on Akosita’s saga.

    I have previously made it clear that the Prime Minister owed the public a proper response to the repeated calls to dismiss Akosita because he was the one who chose her to be Minister of Infrastructure, Tourism and Transport. He knew when he appointed her in 2019 that she had been charged with serious fraud offence in 2018. He should have checked the legal implication of her charges and how they could affect the government.

    Clause 51(3)(a) vs clause 23

    Prime Minister Pōhiva Tu’i’onetoa’s insistence, based on Clause 23 of Tonga’s Constitution, that he cannot sack Akosita, was unfounded in many respects.

    In fact, his power given by Clause 51 (3) (a) means he can do something, but he refused to do it and unfortunately, he appears to have attempted to mislead the public about this clause.

    Clause 51 (3) (a) says: “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”.

    Prime Minister Pōhiva Tu’i’onetoa. Photo/Kalino Lātū (Kaniva Tonga)

    This clause has two independent phrases divided by the conjunction “or” which means it is either the Prime Minister who can recommend to the king that a Minister’s appointment be revoked, or the minister can be revoked according to Clause 50B.

    In his recent response to media in a livestream talk show the Prime Minister appears to have intentionally avoided talking about the first phrase and claimed his power in clause 51(3)(a) can only be exercised according to clause 50B.

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    Conflict, a matter for judiciary

    In my opinion, Clauses 51 (3) (a) and the re-enacted Clause 23 appear to be in conflict when it comes to Akosita’s case because one clause allows the Prime Minister exclusive power to sack her at his pleasure, while the other says she must not be sacked if she seeks leave to appeal her sentencing. It also says that if she is sentenced to no more than two years imprisonment she is still entitled to be appointed a minister, no matter how serious the offence committed.

    When constitutions and laws clashed it is a matter for the judiciary to make a final decision and clarify which one is void.  Unfortunately, Tu’i’onetoa appears to have taken the role of the judiciary into his hands in this case and declared that Clause 23 was the only clause he could use and turned a blind eye to clause 51(3)(a).

    A sensible leader should use his discretion and use the clause which will do what is best for the people, no matter what. In Akosita’s case the Prime Minister should have stuck to Clause 51 (3)(a) and shown he had a sense of responsibility to the whole kingdom.

    Shifting

    The Prime Minister’s comments and response to media questions about Akosita’s case clearly show he has shifted his justification when it suited him.

    When asked about her pay while she was in court, instead of saying how many days were involved and which law justified her payment,  Tu’i’onetoa said Akosita was still working at the time and Cabinet ministers worked 24 hours a day.

    Tu’ionetoa was uncertain whether Akosita would appeal her sentencing. On June 5 he said “if after the 42-day period stipulated by the constitution is over and there is no appeal I will make the final decision.”

    But his most telling comment was when he said he did not want to sack Akosita as he feared she might take him and the government to court using Clause 23. He said he did not want to be penalised by the court and for the government to have to  pay Akosita compensation.

    But the Prime Minister appears to have no concern at all about who will pay back the monies being paid to Akosita after her conviction and in the next 42 days if she appeals her sentence.  Of course she could accept her sentence and go to jail, or her appeal could be rejected.

    That is why it would have been better for the Prime Minister to immediately take action and dismiss or suspend Akosita without pay under Clause 51(3)(a). If she did end up taking him and the government to court and won, that would have been it. It would have been fair to pay her back all her entitlements, salaries and allowances because the legal process had been gone through.

    Precedents

    In law there are precedents – previous actions take by the courts of the legislature – that are considered as an authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. In Akosita’s case, there is a clear precedent for his dismissal.

    Akosita was dismissed in 2018 by Late Prime Minister ‘Akilisi Pohiva after she was arrested and charged for the fraud of which she has now been convicted.

    Prime Minister Tu’i’onetoa should use this as a precedent to dismiss Akosita. He should also use it in court if Akosita takes legal action against the government because of clause 23.

    Akosita has been found guilty of plundering more than half a million pa’anga from the government school grant scheme which was co-funded by New Zealand and Australia. The Prime Minister has a duty to spend every cent of public money wisely.  Instead, he has continued to reward her with the same benefits and entitlements given to other ministers who have not been convicted of serious fraud.

    The end justifies the means 

    In English there is an idiom that says the end justifies the means used to achieve it. Whatever means the Prime Minister is using at the moment seem only to point to one end, to keep Akosita in Cabinet. But is this goal really enough to justify the financial implications, the chaos over the  Constitution and the effect on his government’s reputation?

    Akosita’s court appearance tomorrow morning will determine the next chapter of this sorry saga.

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