Gov’ts legal battle against Secretary mirrors long dispute with king over Ministry of Foreign Affairs    

A court decision is expected this week on whether the power of the Chief Executive Officer (CEO) should remain with the King’s Secretary, or be returned to the Ministry of Foreign Affairs.

Viliami Malolo (L), PM Hu’akavameiliku.

It is understood the King’s Secretary, Viliami Malolo, sued the government after the Ministry of Foreign Affairs (MFA) and Public Service Commission (PSC) re-established the chief executive position following a recommendation by the former chief judge.

It has been claimed that the restoration of the post automatically invalidated Malolo’s roles in the MAF, Kaniva News has learned.

The Public Service Commission (PSC) believed the Secretary taking over the role of CEO constituted a lack of legal capacity.

The Prime Minister confirmed the court case last week, but did not give further details.

The dispute appears to have stemmed from the fact that the PSC previously succumbed to a push from the king to give him the power to appoint the CEO of Foreign Affairs, a position subsequently held by Malolo.

The PSC then moved the power to appoint the CEO to Schedule 2 of the PSC regulations in which all Ministries listed there must be appointed by the Privy Council, including the Police Commissioner, Defence officials, the Auditor General, Ombudsman and Judges.

Kaniva News understands that MFA and PSC made the move to restore the CEO’s position after former Chief Justice Michael Whitten made remarks about it last year in a court case between MFA and its Deputy Secretary, Toakase Pālelei.

As Kaniva News reported at the time, the court overturned MFA’s dismissal of Pālelei for allegedly committing a serious breach of discipline.  

In part of his report on that case, the Lord Chief Justice said the MFA sent an Executive Directive by e-mail to Palelei,  who was then Deputy Secretary of the MFA, the Secretary of MFA  and staff of the Ministry, for certain action to be implemented within the Immigration Division of the Ministry. 

The PSC alleged that neither Palelei nor the Secretary responded to the Minister’s directive. The Minister later repeated the directive and required it to be implemented by 2.30pm that day.  Again, neither the Plaintiff nor the Secretary responded. As a result, the Minister lodged a complaint with the PSC against the Plaintiff. 

Although Pālelei won her case against PSC and MFA, the government took into consideration Mr Whitten’s remarks in which he said:

“Firstly, pursuant to s 13, the Commission was required to appoint a CEO. In breach of that requirement, it has not done so. Had it done so, it is reasonable to expect that that CEO would have conducted an inquiry in accordance with regulation 5 and produced the requisite report.

“Secondly, and alternatively, even if the Secretary could be regarded, for present purposes, as a de facto CEO, his decision not to be involved in disciplinary proceedings against the Plaintiff could easily have been addressed by the Minister appointing an Acting CEO pursuant to s 13C. For reasons which were never explained, the Minister has not done so”.

King and the Ministry’s saga

Kaniva News understands the King wanted to appoint the Ministry of Foreign Affairs CEO or make the Secretary for Foreign Affairs as CEO, believing that Clause 39 of the Constitution allowed him to do so under the provision for appointing his representatives in foreign countries.

The government insisted that the clause was only intended to allow the King to appoint his foreign representatives such as High Commissioners or Ambassadors. It claimed the clause did not give His Majesty any power to interfere with the office of the Minister, and that the power to appoint all the positions in the Ministry, including the CEO, lay in the PSC and Minister’s hands.  

Clause 39 says: “It shall be lawful for the King to make treaties with Foreign States provided that such treaties shall be in accordance with the laws of the Kingdom. The King may appoint his representatives to other nations according to the custom of nations”.

As we reported recently relations between the Prime Minister and the throne have  been tense since the king issued a memo last month saying he no longer supported Prime Minister Hu’akavameiliku as the Minister for His Majesty’s Armed Forces and Hon. Fekitamoeloa Katoa ‘Utoikamanu as the Minister for Foreign Affairs and Minister for Tourism.

The Prime Minister and ‘Utoikamanu finally resigned last month after the king’s Nobles responded by demanding that they resign immediately in order to assuage the king’s disappointment.

The news about the court case broke after the former Secretary for MFA Mahe Tupouniua was sacked after he allegedly disputed the king’s demand to fund the recently established embassy in Dubai.

As Kaniva News reported at the time, Tupouniua was reported to be at the centre of a clash after the king wanted to open the kingdom’s  new embassy in Abu Dhabi, the capital of the United Arab Emirates. Kaniva News has tried to confirm this.

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