First impeachment case in Tonga in 50 years

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).

I recently did some research on the impeachment process in Tonga and came about an interesting article on the Tongan Legislative Assembly website. The article was entitled ‘Hon. Lavulavu survives impeachment notion’. The article was focused on discussing the outcome of the impeachment charges made against member of Parliament, the Minister responsible for Infrastructure and Tourism Hon. Étuate Lavulavu.

Lavulavu’s impeachment charges was tabled into Parliament by Vava’u Noble Representative No.2 Lord Tuílakepa earlier in August this year.[1] The accusation for impeachment included nepotism and fraudulent practices with government equipment, human resources and finances.[2]

Impeachment to those who do not know is the act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[3] But the grounds on which an official can be removed do not have to be criminal in nature.[4] They usually involve some type of abuse of power or breach of the public trust.[5] Impeachment was first used in the British political system in the second half of the 14^th century.

The grounds for impeachment of any Minister or representative of the nobles and of the people  is laid out in clause 75 of the Tongan Constitution:

1. breach of the laws;
2. the resolutions of the Legislative Assembly;
3. maladministration;
4. incompetency;
5. destruction;
6. embezzlement of Government property; or
7. the performance of acts which may lead to difficulties between Tonga and another country.

The impeachment process in the Tongan Legislative assembly in set out in Rules 87 to 96 of the Rules of Procedure of the Legislative Assembly of Tonga.  Any member of the Legislative Assembly can move the Assembly to impeach another member at his own volition or as a result of a written complaint made by any Tongan subject.[6] The following diagram summarises the impeachment process in Tonga according to the Rules of Procedure:

The person impeached can be represented by legal counsel and attend his own trial.[7] The Assembly can appoint the member who made the motion for impeachment to prosecute[8] and prepare the articles of impeachment.[9] The Member can also engage legal counsel with the approval of the Assembly.[10]

The article explains that the impeachment charges was a result of complaints from former Ministry of Infrastructure employees that Lavulavu has misused public funds.[11] The Standing Privilege Committee found and recommended that there was sufficient evidence for a prima facie case on 19 August 2015. The next step was for the Assembly to vote, whether a proceeding for impeachment should continue.

However the Assembly took another 3 months for it to vote on this impeachment case. During the 3-month period Lavulavu has taken different measures to expunge charges. For instance, he appealed that the Standing Committee on Privileges members be replaced by his own nominees.[12] However this motion was withdrawn as a result of pleas from the Prime Minister.[13] He continued to threaten and call the Speaker of the House a “dictator”.[14] Even before the Standing Committee on Privileges presented their cases that there is a prima facie case against Lavulavu, he had managed to delay their report t obey read. For instance, Lavulavu requested that he have time to respond to the allegations. As a result he produced two responses which he later withdrew.[15] The members of the Standing Committee on Privilege was Lord Fusitu’a as chairperson, Minister of Justice, Hon. Vuna Fa’otusia, Minister of Finance, ‘Aisake Eke, Speaker of the House, Lord Tu’ivakano, Lord Tu’iha’angana and People’s Representative Mateni Tapueluelu.
However, this voting process was delayed 5 times as a result of as a result of pleas from Lavulavu and support from the Prime Minister to allow Lavulavu to respond to the allegations made against him.[16] At the course of the consistent battles in the Assembly regarding this impeachment case, the Prime Minister raised concern that Lavulavu as a result of the case might loose his seat in Parliament.[17]

Taking into account the procedures discussed above, Lavulavu managed to stall the process with different excuses. For instance, delay was always granted to allow him to prepare a defence for his case under natural justice. However at the end he never presented a defence and he never sought private legal representations despite the fact that he was entitled to it.

In addition, the article notes that the Prime Minister plead that the matter be dealt with by Cabinet, as impeachment is an Executive decision. This is not part of the procedure as laid out by the Constitution and the Parliament Standing Orders. The Constitution expressly states that the impeachment proceedings are to be presided over by the Chief Justice who decides on questions of law, whilst the final judgement and the questions of fact are all determined by the Legislative Assembly.[18]

Moreover, the article notes that Lavulavu had misinformed the  Assembly, by stating that he was never given an opportunity to respond. However he did respond, but he had withdrew his response from the House. The Finance Minister confronted him with this lie, as a result Lavulavu apologized, but he did not admit to lying.

However a majority of 12 to 9 votes saved Lavulavu from the impeachment proceedings. Surprisingly 3 of the members of the Standing Committee on Privileges voted against the impeachment proceedings, this is the Minister of Finance ‘Aisake Eke, Minister of Justice Vuna Fa’otusia and Member of Parliament Mateni Tapueluelu. The rest of the member voted for the impeachment proceedings.

Lavulavu stood for the election as an independent candidate, but joined the Prime Minister’s ‘Akilisi Pohiva’s party after the elections. It comes as no surprise that all the Prime Minister’s Ministers stood up for Lavulavu against an impeachment proceeding. The Prime Minister has also shown support for him all throughout the proceedings and supported him by pushing for delays in the voting process.

Lavulavu is the first Minister to be charged with impeachment in 50 years in Tonga. There has only been one case that mentions impeachment, this is Attorney General v Fusitu’a, ‘Akauola & Moala  [1997] Tonga LR 18, the case makes references to clause 75 (impeachment) of the Constitution. However the respondents to this case did not make any submissions that the Chief Justice at the time was in breach of clause 75. Nonetheless the Pro-democracy movement did move to have the Prime Minister Prince ‘Ulukalala Lavaka Ata impeached in 2012 for failing to present audited public accounts, but this failed.[19]

Impeachment cases are very serious, it does not require an indictment like civil and criminal cases.[20] A person convicted of impeachment can no longer retain his position as a Minister[21], cabinet ministers who are elected representatives shall loose their seat in the Assembly if he or she is impeached. In addition, even the King cannot grant pardons to a person who has been charged with impeachment.[22]

Tonga is the only Pacific Island that has provisions for impeachment in its Constitution. The other Pacific Islands have provisions for “recall” and “vote of no confidence”. Vote of no confidence is the formal legal method by which a legislative body, by a majority vote, forces the resignation of a cabinet or ministry[23] whereas impeachment is the act of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[24]

Foreign jurisdictions including Australia and New Zealand do not have provisions for impeachment, however Commonwealth countries like India and the United Kingdom still provides for impeachment.

The grounds for impeachments in other jurisdictions is similar to Tonga, but other jurisdiction’s impeachment grounds includes high crimes which covers a wide range of misconducts including to misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty,  conduct unbecoming, refusal to obey a lawful order and ordinary crimes.[25]

In conclusion, the impeachment process will always be unpredictable as it is politicians judging another politicians.[26] Others may argue that Tonga’s impeachment clause is archaic and out of date. This is evident in the United Kingdom, where the last recorded impeachment case was in 1806.[27] I believe that the clause still serves a good purpose to promote transparency and accountability despite the fact that on the phase of it, we do not see transparency and accountability there. However, this provision can continue to be on Tongan laws to remind politicians that they can be held accountable for their actions. The process might appear time consuming, but it still gives the people the power to control and have a say on the people they elect to the Assembly.

[1] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[2] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[3] Black Law’s Dictionary (10^th ed, 2014) 870.

[4] Black Law’s Dictionary (10^th ed, 2014) 870.

[5] Black Law’s Dictionary (10^th ed, 2014) 870.

[6] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 87.

[7] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 91.

[8] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(a).

[9] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(b).

[10] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(3).

[11] ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 11 November 2015).

[12] Bruce Hill, ‘Impeached Tongan minister demand charges in privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[13] ‘Tonga MP wanted own committee for impeachment decision’ (2015) http://www.radionz.co.nz/international/pacific-news/282507/tonga-mp-wanted-own-committee-for-impeachment-decision (Accessed 1 November 2015).

[14] ‘Angry Tonga minister calls the speaker a ‘dictator’ (2015) http://www.cookislandsnews.com/item/53427-angry-tonga-minister-calls-the-speaker-a-dictator/53427-angry-tonga-minister-calls-the-speaker-a-dictator (Accessed 10 November 2015).

[15] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’(2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[16] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[17] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp,org/2015/10-22-10.htm (Accessed 1 November 2015).

[18] Clause 75 Constitution

[19] ‘Attempt to impeach Tonga’s prime minister’ (2012) http://www.radioaustralia.net.au/international/2005-06-24/attempt-to-impeach-tongas-prime-minister/766506 (Accessed 14 November 2015).

[20] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[21] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 51(3)(b).

[22] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[23] Black Law’s Dictionary (10^th ed, 2014,1208).

[24] Black Law’s Dictionary (10^th ed, 2014,870).

[25] United States and the United Kingdom provides for impeachment on the grounds of “High Crimes”.

[26] Bruce Hill, ‘Impeached Tongan minister demands charges in the privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[27]Impeachment’ (2014) http://www.parliament.uk/site-information/glossary/impeachment/ (Accessed 23 September 2015).

Disclaimer : Please note that this article is the author’s own personal views and it is not to be quoted for research purposes. 

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).