Challenge to king’s action has no basis in law or Constitution, says acting AG

Acting Attorney General and Director of Public Prosecutions ‘Aminiasi Kefu, said this morning any legal action taken against the dissolution of the Legislative Assembly would be dismissed by the courts.

The Acting Attorney General was responding to an article in Kaniva News which quoted former Government Chief Executive Officer for Internal Affairs Mr. Lopeti Senituli urging the current Government to take legal action against King Tupou VI’s decision to dissolve the Legislative Assembly.

Mr. Senituli said the Government should apply to the Court for an injunction against the dissolution and for a review of the king’s actions.

Hon. Kefu said there was no provision in the Constitution or laws of Tonga to support Mr Senituli’s opinion.

He said His Majesty’s personal prerogative to dissolve parliament was not limited by the law.

The power to dissolve the Legislative Assembly under clauses 38 and 77(2) of the Constitution was a personal Royal prerogative that had no “parameters” prescribed by any law, unlike the personal Royal prerogative to appoint successors to hereditary titles and hereditary estates.

Accordingly, there was no basis for the Courts to analyse whether the decision taken by His Majesty the King to dissolve the Legislative Assembly had exceeded any legal parameters prescribed by the law.

“The wording of clauses 38 and 77(2) of the Constitution puts this principle beyond doubt,” Hon. Kefu said.

“Clause 38 provides that the King may dissolve the Legislative Assembly at his pleasure and command that new representatives of the nobles and people be elected to enter the Assembly.”

Clause 77(2) also provided that “it shall be lawful for the King, at his pleasure, to dissolve the Legislative Assembly at any time and command that new elections be held.”

The Acting Attorney General said Mr Senituli had based his opinion on the Land Court case of Tupou Tongaliuaki Filo’auola Aleamotu’a v Fielakepa, [2015] Tonga LR 556 (Scott LCJ).

However, Hon. Kefu said that in the case relied upon by Mr Senituli, the court had ruled that the king could not be made a defendant to the case because the Courts had no jurisdiction over him.

Legal reasoning

Hon. Kefu then went into lengthy detail explaining the court’s reasoning for its finding.

“A distinction must… be drawn between the exercise by His Majesty of unfettered royal prerogatives retained by him under the Constitution, such as the power to confer titles (Clause 44) and the exercise by him either upon the advice of a body or person, of the powers specified in the relevant statute (e.g. Clause 50A(1) or Clause 50B).

“In Tu’ipulotu v Kingdom of Tonga [ [1997] Tonga LR 258] Hampton CJ held that in Tonga, as in England, the King in person (subject only to Clause 49) is immune from all actions at law whether civil or criminal: ‘No proceedings are maintainable against the King in person. The Courts are the King’s court and the Courts have no jurisdiction over him.’

“While the decision relates to Judicial review proceedings in the Supreme Court…the principle is equally applicable to the Land Court.

“In paragraph 27 it added that:

“ Most of the previous cases dealing with the issue of contested hereditary titles may be found in Volume II, Tonga Law Reports.[…] In none of them, so far as can be seen from the report, was the Sovereign joined as a party. …The matters now before this Court for decision may be satisfactorily and comprehensively be dealt with without the need for any second defendant or third party to be joined.

“A Land Court case dealt with a personal Royal prerogative that is limited by the law: appointment of successors to hereditary titles and hereditary estates,” Hon Kefu said.

He said the Land Court case dealt with different laws to the laws that applied in the dissolution of the Legislative Assembly.

“The Land Court stated in this case that the power to appoint successors to hereditary titles and hereditary estates is a personal Royal prerogative, and the Courts cannot direct His Majesty the King on making such appointments,” the Acting Attorney general said.

“However, the Courts can review the exercise of this particular power because of the procedures prescribed by law under sections 38(1) and 40(1) of the Land Act, and the rules of succession prescribed by clause 111 of the Constitution. The Land Court stated this by saying that:

‘…the powers and duties given to the King by Sections 40(1) and 38(1) [of the Land Act] are personal and not subject to direction by the Court. It follows that there is no basis for the King to be joined as a party when breaches of these sections are alleged.

‘To say however that decisions made by the King pursuant to sections 40(1) [and] 38(1) are not subject to order is not to say that they are not justiciable at all. The Court retains the right and indeed the duty to analyse the actions taken and, when it is of the view that the parameters within which the royal prerogative must be exercised have been exceeded it may, in its discretion, declare that to be the case.’

Hon. Kefu said the Privy Council had confirmed that Land Court case dealt with a personal Royal prerogative limited by the law

“The limitation by the law of the personal Royal prerogative to appoint successors to hereditary titles and hereditary estates was confirmed by the Privy Council in the appeal from this Land Court case,” he said. The Privy Council stated as follows:

‘ Relevant to the interpretation to be given Clauses 104, 111 and 112 of the Constitution is HM King George Tupou I’s address to parliament in 1875 as quoted by our distinguished predecessors in Tu’ipulotu v Hon Niukapu (supra) at 83:

I have made up my mind absolutely not to alter names or nominate chiefs so that the estate shall go with the title and the succession shall be from father to son forever. The Law of Succession is stated in the Constitution, and such succession shall be by blood relationship only …. Should there be any dispute it shall be tried by Justices of the Court in accordance with the usage of civilised Governments. You Chiefs of Tonga all of you who have titles estates when the Constitution came into force: I affirm to you the right of yourself and your children by marriage to hold and possess your titles and estates forever, as stated in the Constitution.

‘His Majesty [King George Tupou I] clearly contemplated that succession to the noble titles he had created to reinforce his reign and the unity and wellbeing of the Kingdom would henceforth devolve according to law and not by royal pleasure.’

“The Attorney General’s Office therefore wishes to confirm that it is of the view, that the decision by His Majesty the King to dissolve the Legislative Assembly under clauses 38 and 77(2) of the Constitution was an exercise of a personal Royal prerogative that is not limited by the Constitution or the laws of Tonga, and therefore such decision cannot be reviewed by the Courts.”

The main points

  • Acting Attorney General and Director of Public Prosecutions ‘Aminiasi Kefu, said this morning any legal action taken against the dissolution of the Legislative Assembly would be dismissed by the courts.
  • He was responding to an article in Kaniva News which quoted former Government Chief Executive Officer for Internal Affairs Mr. Lopeti Senituli urging the current Government to take legal action against King Tupou VI’s decision to dissolve the Legislative Assembly.
  • Kefu said there was no provision in the Constitution or laws of Tonga to support Mr Senituli’s opinion.
  • He said His Majesty’s personal prerogative to dissolve parliament was not limited by the law.

For more information 

Former gov’t political adviser urges Pōhiva to launch legal challenge against King’s decision to dissolve Parliament

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