Tongatapu 4 seat declared vacant, but AG says he has not received appeal from Tapueluelu

In picture: L-R, Acting Attorney General ‘Aminiasi Kefu, Mateni Tapueluelu and Speaker of the House Lord Tu’ivakanō.

The Tongatapu 4 electorate has been declared vacant and Tonga’s Attorney General, ‘Aminiasi Kefu, has declared that a by-election must be called.

The seat was held by MP Mateni Tapueluelu, but the electorate’s Parliamentary seat was declared empty after the Supreme Court ruled that Tapueluelu had outstanding court debts when he ran as a candidate for Parliament.

This breached Clause 65 of the Tongan Constitution, which says that nobody can be elected if they have not paid their court fines on the day they submit their nomination paper to the Returning Officer.

Local media reported last week that Tapueluelu has appealed the court ruling, but Kefu said this morning (December 21) he had not received the appeal and therefore the seat was currently vacant.

Kefu said the: “Tongatapu 4 seat is vacant.”

According to Section 6 of the kingdom’s Legislative Assembly Act, when a seat is declared vacant, the Speaker (in this case Lord Tu’ivakano) will issue a writ for an election. It says the Electoral Commission will work with the Speaker to fix the time and place for the election:

The Attorney General told Kaniva News the court ruling was enough to declare Tapueluelu’s election was void.

Kaniva News understands all appeals against any judicial decisions in Tonga must first be registered at the Supreme Court Registry Office. Copies of the appeals must then be delivered to the Attorney General’s Office for processing.

Kefu said Section 6 of the kingdom’s Legislative Assembly Act accorded with Clauses 23 and 76, which he said the Act strengthened the constitution.

The constitution made it clear that it was the responsibility of the Speaker of the House to declare any disqualification of any MPs and apply for processing of a by-election to elect a successor.

Appeal

Tapueluelu can appeal the court decision after it was made on December 12.

New Zealand-Tongan based Barrister and Solicitor Sione Fonua said he believed that while Kefu’s interpretation of the legal situation was technically correct,  Tapueluelu’s legal team could appeal and apply for a stay of execution.

If a stay of execution was approved by the court, Tapueluelu would remain a Member of Parliament until the Court of Appeal made a decision on his appeal.

Fonua said this would depend on whether the Court of Appeal agreed to hear the appeal.

The legal situation

The following are the passages from Tonga’s Constitution and Legislative Assembly Act concerned with a person’s eligibility to be elected or retain a Parliamentary seat.

Section 6 of the kingdom’s Legislative Assembly Acts:

“If any representative shall die or shall resign his seat or shall cease to be qualified for election under clauses 23 and 65 of the Constitution or be unseated in accordance with clause 66 of the Constitution or the provisions of the Electoral Act, his seat in the Legislative Assembly shall thereupon become vacant and the Speaker of the Legislative Assembly shall issue a writ for the election of a successor. The Electoral Commission in consultation with the Speaker shall thereupon fix the time and place of such election and the person elected thereat shall hold office for the balance of the term of his predecessor.”

Clause 76 of the Constitution on by-elections:

“Upon the death or resignation of any representative of the nobles or of the people and when a member is deprived of his seat after impeachment, the Speaker shall immediately command that the nobles or the electors of the district which he represented shall elect a representative in his place. But the Legislative Assembly shall have the power to sit and act although its number be not complete.”

Constitution clause 23:

“No person having been convicted of a criminal offence punishable by 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. (Act 8 of 1961.)”

Constitution clause 66:

“Any person elected as a representative who shall be proved to the satisfaction of the Assembly to have used threats or offered bribes for the purpose of persuading any person to vote for him shall be unseated by the Assembly.”

Constitution clause 65

“Representatives of the people shall be chosen by ballot and any person who is qualified to be an elector may be chosen as a representative, save that no person may be chosen against whom an order has been made in any Court in the Kingdom for the payment of a specific sum of money the whole or any part of which remains outstanding or if ordered to pay by instalments the whole or any part of such instalments remain outstanding on the day on which such person submits his nomination paper to the Returning Officer: Provided that no person holding an office of emolument under the Crown shall enter the Assembly except the Ministers, and the Governors. (Substituted by Act 8 of 1978.)”

Correction: Earlier on we refferred in this story to Section 6 saying it was Section 6 of the kingdom’s Electoral Acts. This was not correct. We should say it was Section 6 of Tonga’s Legislative Assembly Acts. 

The main points

  • The Tongatapu 4 electorate has been declared vacant and Tonga’s Attorney General, ‘Aminiasi Kefu, has declared that a by-election must be called.
  • The seat was held by MP Mateni Tapueluelu, but the electorate’s Parliamentary seat was declared empty after the Supreme Court ruled that Tapueluelu had outstanding court debts when he ran as a candidate for Parliament.
  • Local media reported last week that Tapueluelu has appealed the court ruling, but Kefu said this morning (December 21) he had not received the appeal and therefore the seat was currently vacant.
  • He said the Speaker of Parliament, Lord Tu’ivakano, in consultation with the Election Commissioner, must immediately publish a notice of vacancy, the time, date and place for the by-election.

For more information

Constitution of Tonga

Tonga Electoral Act

Tongan MP’s election ruled unconstitutional (RNZI)

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