Time to ask whether King’s role in Cabinet appointments has been properly understood

KANIVA COMMENTARY: His Majesty’s actions in revoking his support of the appointment of two Cabinet ministers raise a number of serious questions.

King Tupou VI Photo/File photo

As the drama over the King’s actions continues, it is surely time for voters and citizens to ask:

Has the King been ill-advised by his Privy Council?

Has his constitutional role in appointing ministers been misconstrued?

Clause 51 (2) of the Constitution says: “The Cabinet shall consist of the Prime Minister and such other Ministers who are nominated by the Prime Minister and appointed by the King: Provided that – (a) the Prime Minister may nominate as Cabinet Ministers not more than 4 persons who are not elected representatives; (b) the Prime Minister and Cabinet shall be fewer in number than half of the number of elected members of the Legislative Assembly excluding the Speaker.” 

This clause and sub-clauses do not stipulate that the King has to agree or  “consent” and have “confidence” in the Prime Minister’s nominated ministers before he can appoint them.

Since the concepts of “consent”  and “confidence” are not contained in the wording of the Constitution, voters and citizens may deduce that the King’s memo withdrawing his confidence and consent to the appointments of the ministers was based on a false premise.

There appears to be nothing in the Constitution saying the King must agree with the Prime Minister’s nomination before he appoints them.

Voters and citizens may deduce from this that the King did not appoint the Prime Minister’s nomination last year to replace former Minister Sēmisi Fakahau because he thought he had to agree with the appointment.

The king’s memo

Equally, people may be entitled to believe that the King appointed Dr Siale ‘Akau’ola as Minister of Health last week because he agreed with the nomination.

A kinder interpretation of the royal memo revoking the appointments is that it was merely a way for the King to publicly note his disagreement with the Prime Minister’s recommendations. In this interpretation the memo had no legal force because it did not cite any clause or section of the Constitution.

Voters and citizens might interpret this as meaning that the King was not actually  revoking the Ministerial appointments because he and his Privy Council were well aware that the King can only reject an appointment according to the advice of the Prime Minister.

If that is so, the Prime Minister and Cabinet’s response should have been simply  to tell the King his memo was noted. The government’s response went too far and said the king’s memo contravened Clause 51 (3)a of the Constitution by revoking the ministers’ appointments. But in the wording of the King’s memo, he did not revoke the appointments. He just withdrew his “confidence” and “consent” to the appointments, something that is not constitutional.

The government’s response should have also highlighted the ultimate responsibility of the government to which is being referred in the constitution as “executive authority”. It clearly prohibits any intervention by the King, the Privy Council or the Parliament against its “executive authority”.

This is mentioned in the Constitution’s  Clause 51(7) which says: ” The term “executive authority” in sub-clause (1) excludes all powers vested in the King or the King in Council, whether by this Constitution, or any Act of the Legislative Assembly, any subordinate legislation, and Royal Prerogatives. “.

Sub-clause 1 of Clause 51 under the title Function, Constitution and Powers of Cabinet says: “(1) The executive authority of the Kingdom shall vest in the Cabinet, which shall be collectively responsible to the Legislative Assembly for the executive functions of the Government”.

The response from the government was important since it sticks to what is constitutionally solid and valid. We must live by the Constitution and make sure the King honours the agreement between the people and his brother, the late king George V, to relinquish his executive power to the people in 2010 as part of a deal to reform and transform the old monarchical system to a democratic system.

It is important also for the government and the nobility  to stand together and push for the King to work on the Pursglove report and the suggestions he made. It is about a decade since lawyer Peter Pursglove said that Tonga’s 2010 constitution was the poorest among all Commonwealth countries. He made suggestions to improve it, but progress had been stalled. Pursglove expressed concern about the role and the establishment of the Privy Council.

We have had three governments now which all agreed that the current Constitution must be revised according to the Pursglove report. The first people’s elected government of Lord Tu’ivakanō was the one which saw that the Constitution was a problem, so they hired Pursglove to revise it. The second elected government of ‘Akilisi Pōhiva saw the same problem and they pushed for the Parliament to pass the six bills which were based on the Pursglove report. The Tu’i’onetoa government also moved for the king to change the Constitution and allow the Prime Minister to be a member of the Privy Council so they could work together and closely inform the King of the government’s operations. The King refused to take this step.

His Majesty’s decision also raises the question of whether he received the correct advice from the Privy Council. It calls to mind the advice he received from Lord Tu’ivakanō in 2017 which he used to dissolve Parliament and dismiss the government of’ Akilisi Pōhiva. He only discovered after the dissolution that such action gave him no power to dismiss the government.

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