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INTRODUCTION

Draft 3 of this Proposal was publicly launched through the media in April 2002. Copies were submitted to the Palace Office, the Prime Minister’s Office, the offices of all the Cabinet Ministers and to all the 33 nobles of the Realm. Copies were also sent to all the members of THRDM and to key individuals in Tonga and overseas. Our intentions were to generate public discussion and the feedback would be the basis for the refinement of the Proposal before its formal submission to the Legislative Assembly.

In preparing our Proposal we wanted to address three major structural weaknesses in our current system of government.

The first major structural weakness is that identified in the US Department of State’s Country Report on Tonga for 2001. It states, “The Government’s human rights record was generally poor in several areas and the principal human rights abuse remained the severe restrictions on the right of citizens to change their government”.

The second major structural weakness is that pointed out by the Chief Justice in the case of The King v SA. Pohiva in 1998 relating to the Wall Street Journal article. In his Supreme Court decision Finnigan J stated “It is not shown to my satisfaction that the accused actually said that (“the King is a dictator”) but if he did then, in their context those words can only mean, “The King is an authoritarian ruler who ignores my repeated requests for accountability by Himself and his Ministers”. If he said this, it appears to me to be the truth. Taking account of evidence by the accused during the trial it appears to me not surprising that his attempts to obtain accountability in a system of government which does not provide for it are ignored”.

The third major structural weakness is that identified by Rev. Siupeli Taliai who writes “It seems as if the Tongan Constitution of 1875 which survives today in 2002 is founded on the principles of unequal dignity, unequal value, unequal sanctity and unequal human rights among the Tongan people”.

We received several written responses from Tonga and overseas. In addition there were numerous verbal comments and suggestions from members of THRDM and the public in general. This Draft 4 is based on that feedback.

In general the feedback wanted all the members of the House of Parliament to be elected by the people – even the Noble’s representatives. There was support for Tongan citizens living overseas to have representatives in Tonga’s Parliament and also for women to have a quota of seats. There was also suggestions to do away with the Privy Council altogether as its legislative and executive authority conflicts with that of the Legislative Assembly and the Cabinet in the existent structure of government.

In this Draft 4, we have retained the alternative structure proposed in Draft 3 as Alternative One. We then propose a totally different structure as Alternative Two. The two Alternatives can also be seen as different phases in our political evolution towards more democratic governance. In fact an Alternative Three can be created through a combination of the two alternatives presented here.

This Draft 4 is submitted with the approval of the THRDM Executive Committee. It is submitted herewith to the Legislative Assembly in the hope that it can be the basis for political reform in Tonga over the next 3 years.

ALTERNATIVE ONE

Form of Government: Democratic Monarchy

EXPLANATION

The form of government shall be called a Democratic Monarchy.

• Box 1
  (i) His Majesty The King is the Head of State and Head of Government.

  (ii) Succession to The Throne shall be hereditary in line with provisions in the present Constitution

  (iii) His Majesty’s role and functions will be the same as in the present Constitution except where modified herein or where they conflict with modifications contained herein.

• Box 2
  (i) The House of Nobles shall be made up of 9 members elected by the 33 Nobles.

  (ii) The distribution of seats amongst the electoral constituencies, the eligibility for candidacy and the method of election shall be the same as that for the current nine Nobles representatives in the present Legislative Assembly.

  (iii) The term of the House of Nobles shall be 3 years.

  (iv) The primary role and functions of the House of Nobles shall be to scrutinise. and approve legislations adopted by the House of Representatives before they are presented to His Majesty for his assent and enactment.

• Box 3
  (i) The House of Representatives shall be made up of 21 representatives elected under universal suffrage.

  (ii) Eligibility for candidacy for the 21 seats shall be open to everyone, commoners, Nobles and members of the Royal family.

  (iii) The distribution of the 21 seats amongst the electoral constituencies shall be proportional to the resident population of each constituency.

  (iv) Serious consideration should be given to the idea of allowing Tongan citizens living permanently in NZ, Australia and the US to be granted one seat each in the House of Representatives

  (v) The term of the House of Representative shall be 3 years.

  (vi) The primary role and functions of the House of Representatives shall be the same as that of the existing Legislative Assembly.

• Box 4
  (i) The Cabinet shall be made up of 12 members (1 Prime Minister, 2 Governors and nine other Ministers)

  (ii) The appointment of the members of the Cabinet shall be the exclusive prerogative of His Majesty The King but his field of selection shall be confined to the 9 members of the House of Nobles and the 21 members of the House of Representatives.

  (iii) To ensure equitable representation from both Houses, 1/3 of the members of the Cabinet shall be from the House of Nobles and 2/3 from the House of Representatives.

  (iv) The appointment of the Prime Minister shall be the exclusive prerogative of His Majesty The King but He shall ensure that the appointee is someone who in His considered opinion commands the support of the majority of the members of both Houses.

  (v) When appointing the eleven other members of the Cabinet, His Majesty The King shall consult the Prime Minister.

(vi) In the likelihood that His Majesty appoints the Prime Minister from the House of Nobles then the Prime Minister automatically becomes a member of the House of Representatives as well

(vii) The term of the Cabinet shall be 3 years.

(viii) The role and functions of the Cabinet shall be the same as that of the existing Cabinet.

• Box 5
  (i) The Privy Council shall be made up of 13 members (His Majesty The King plus all the 12 members of Cabinet).

(ii) Apart from His Majesty The King, the term of the 12 other members of the Privy Council shall be 3 years.

(iii) The role and functions of the Privy Council shall be the same as that of the existing Privy Council. However the new Privy Council must report periodically (every 3 months) to a Joint Session of the House of Nobles and House of Representatives.

• FURTHER EXPLANATION
  (i) All legislations must be adopted by both Houses before being presented to His Majesty for assent and enactment.

(ii) Should His Majesty withhold his assent three times from any legislation passed by both the House of Nobles and House of Representatives, then the members of both Houses in a Joint Session can override His Majesty’s veto through a majority vote of 75%.

(iii) His Majesty The King shall officially open and close the annual sessions of both Houses of Parliament. His Majesty shall also have the right to direct that the annual sessions of both the Houses be discontinued but He can only do so with the prior consent of the majority of the members of the respective Houses.

(iv) His Majesty shall have the right to convoke and dissolve both the Houses of Parliament but He can only dissolve the Houses with the prior consent of the majority of the members of the respective Houses.

(v) The term “exclusive prerogative of His Majesty The King” as used in Box 4(ii) and Box 4(iv) shall be interpreted to mean that only His Majesty The King may exercise these prerogatives and therefore are not exercisable by for example a Prince Regent or Princess Regent.

(vi) Although there is no specific mention of “political parties” in this proposal it is assumed that it will generate their growth. For example Box 4(iv) provides that His Majesty The King must appoint as Prime Minister someone who in His considered opinion commands the support of the majority of the members of both Houses. For illustrative purposes lets assume that in the 2005 elections the Everlasting Party wins 6 out of the 9 House of Nobles seats and 12 out of the 21 House of Representatives seats. The Peoples Democratic Party wins 3 House of Nobles seats and 7 House of Representative seats. The two remaining House of Representatives seats are won by independent candidates. Then His Majesty in accordance with Box 4(iv) should appoint as Prime Minister someone from the Everlasting Party as that person can command the support of 18 out of the 30 members of both Houses. Box 4(v) ensures that the Prime Minister also has a say in the appointment of the rest of the Cabinet who in this case should also be from the Everlasting Party.

(vii) The proposed alternative structure of government should not entail any major increase in financial costs. The combined size of both Houses of Parliament stays at 30, the size of the Cabinet stays at 12 and the Privy Council stays at 13, which are the same figures for the current structure. The only major increase in costs will be related to the holding of the elections for the House of Representatives. Currently there is financial provision for the election of nine representatives under universal suffrage. New funds must be found for the election of 21 representatives under universal suffrage – twelve more than in previous elections. Additional funds must be found if the idea contained in Box 3(iv) finds approval

ALTERNATIVE TWO

Form of Government: Democratic Monarchy

EXPLANATION:

The form of Government shall be called a Democratic Monarchy, with His Majesty the King as the Monarch, a Parliament made up of a Privy Council (Upper House) and a House of Representatives (Lower House) and a Cabinet of Ministers

• BOX 1:
  (i) His Majesty the King is the Head of State. (The Prime Minister is Head of Government)

  (ii) Succession to the Throne shall be hereditary in line with provisions in the present Constitution.

  (iii) His Majesty’s role and functions will be the same as in the present Constitution except that major changes will be made in relation to his executive powers and authority as His Majesty in Privy Council as defined in Clause 50 of the Constitution and in the relevant sections of the Government Act (CAP 3). (See Box 2 below)

  BOX 2:
  (i) The Privy Council as proposed here is totally different from that in the present structure of the Tongan Government.

  (ii) The Privy Council shall be made up of 9 members – 3 of whom are nominated by His Majesty, 3 by the Prime Minister and 3 by the Leader of the Opposition.
  
  (iii) The Privy Council shall not have any executive authority. (The executive authority shall lie with the Cabinet).

  (iv) The Privy Council shall not have any legislative authority except as in its role as the Upper House of Parliament in which it scrutinizes and approves legislations adopted by the House of Representatives (Lower House) before they are presented to His Majesty for his assent and enactment.

  (v) The Privy Council together with His Majesty shall be the final Court of Appeal on land cases.

  (vi) The term of the members of the Privy Council shall be 3 years and to run concurrent to that of the House of Representatives.

• BOX 3:
  (i) The House of Representatives shall be made up of 30 representatives elected by the people under universal suffrage.

(ii) The distribution of Parliamentary seats shall be as follows:
a) 6 representatives of the Nobles of the Realm. Eligibility for candidacy in this category shall only be open to the 33 nobles of the Realm but they shall be voted on by all eligible voters registered and resident in Tonga at the time of the election.

b) 6 representatives of Women. Eligibility for candidacy in this category shall be open only to women but they shall be voted on by all eligible voters registered and resident in Tonga at the time of the election.

c) 6 representatives of Tongan citizens resident overseas with 2 from NZ, 2 from Australia and 2 from USA. Eligibility for candidacy in this category shall be open only to Tongan citizens living in those countries. Eligibility for voting in this category shall also be restricted to those Tongan citizens resident in those countries and are registered to vote in Special Registers set up for those three countries.

d) 12 geographical representatives. Eligibility for candidacy for these 12 seats shall be open to everyone - commoners, Nobles, members of the Royal family. The geographical distribution of the 12 seats amongst Tongatapu, Ha’apai, Vava’u, ‘Eua and the two Niuas shall be proportional to the resident populations and they are to be elected by the eligible voters registered to vote in those constituencies.

(iii) The House of Representatives shall be the highest legislative authority in the country and its primary role is to formulate legislations and policies that will govern the country.

(iv) The House of Representatives will elect its own Speaker.

(v) The term of the House of Representatives shall be 3 years.

• BOX 4:
  (i) The Cabinet shall be made of 10 Ministers including the Prime Minister.

  (ii) The Prime Minister is the Head of Government.

  (iii) The Prime Minister shall be selected by the 30 members of the House of Representatives and be commissioned by His Majesty the King.

  (iv) The Prime Minister shall select his 9 Cabinet Ministers from the other 29 members of the House of Representatives and shall be commissioned by His Majesty the King.

  (v) There will no longer be any appointed Governors of Vava’u and Ha’apai. Instead they will be replaced by Government Representatives (as is the case for ‘Eua and the two Niuas) who are appointed by the Cabinet. Those Government Representatives will not have Cabinet or Privy Council status, and will be regarded as civil servants.

  (vi) The Cabinet shall be the highest executive authority in the Kingdom.

  (vii) The Cabinet shall be accountable to the House of Representatives.

  (viii) The term of the Cabinet shall be 3 years and shall run concurrent to that of the House of Representatives.

• FURTHER EXPLANATION:

  (i) All legislations must be approved by the House of Representatives (Lower House) and the Privy Council (Upper House) before being presented to His Majesty for his assent and enactment.

  (ii) Should His Majesty withhold His assent three times from any legislations approved by both Houses of Parliament then the members of both Houses in a Joint Session can override His Majesty’s veto through a majority vote of 75%.

  (iii) His Majesty shall officially open and close the Annual Sessions of the Privy Council and the House of Representatives.

  (iv) His Majesty will have the right to dissolve the Privy Council and the Houses of Representatives and call for new elections but only with the prior consent of its members.

  (v) His Majesty shall no longer have the right to appoint and/or dismiss Cabinet Ministers.

  (vi) It is assumed that in a fully elected House of Representatives political parties will emerge and that a party in opposition and a leader of Opposition will be easily identifiable.

Prepared by Lopeti Senituli for the Tonga Human Rights & Democracy Movement based on discussions in the Executive Committee of THRDM and an earlier proposal prepared by Rev. Simote M. Vea. Draft 2 is based on feedback on Draft 1 from Rev. Simote M. Vea. Draft 3 is based on feedback from Professor Futa Helu and improvements adopted by the THRDM Executive Committee on 11 April 2002. Draft 4 is based on feedback from Dr. Feleti Sevele, ‘Uliti Uata, Teisina Fuko, ‘Isileli Pulu, Samuela ‘Akilisi Pohiva, Finau Tutone, Rev. Siupeli Taliai, Lisiate Ikaafu, Latu Malolo, Fatafehi Tu’i’onetoa Fale, Kalafi Moala, Dr. Ian Campbell and discussions in the THRDM Executive Committee in August 2002.

30 August 2002

 

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