Questions have been raised about the departure of Lord Chief Justice Owen Paulsen, who is leaving Tonga for New Zealand.
As Kaniva News reported yesterday, Lord Chief Justice Paulsen has been appointed an Associate Judge of the High Court in New Zealand.
He will sit on the bench in Christchurch.
Comments made by Justice Minister Vuna Fā’otusia last year suggest the appointment of expatriate judge to the Supreme Court may be coming to an end.
Government supporters have expressed concern that the Privy Council did not extend the judge’s contract.
There has been criticism of the role of the Privy Council since the introduction of the 2010 Constitution.
Constitutional expert Peter Pursglove said the constitutional provisions relating to the judicial structure of Tonga was unworkable and incompatible with the principles of constitutional monarchy and democracy.
The present government’s legal adviser, Dr Rodney Harrison, said the power of Privy Council to appoint and select judges had compromised the judiciary.
In 2014, the then Minister of Justice, Clive Edwards, described the power and influence being exercised through the Privy council as “a mockery.”
Lord Chief Justice Paulsen has been hailed by many for his part in some historical court cases such as the one on Tongasat, the Pacific Games vs Tongan Governmen and the reinstatement of Lord Sevele as head of the Tonga Pacific Games Organising Committee.
He has also sat on the bench of the Land Court, hearing what are often extremely complicated inter-generational disputes.
He has also headed Tonga’s highest court, the Court of Appeal.
During this period there has been measured, but consistent criticism of what have been considered occasional poor practices in the Tongan legal system.
Decisions made by the first Tongan judge to be appointed to the Supreme Court, Laki Niu, have also been the subject of comment, review and appeal.
While the actions of the Privy Council have been called into question, Justice Minister Vuna Fā’otusia has made it clear that he wants expatriate judges off the Supreme Court bench.
Hon. Fā’otusia told Radio New Zealand in 2018 he hoped to have an all-Tongan Supreme Court bench by 2020.
He said he hoped that one day court proceedings would be conducted in Tongan instead of English.
“We have to ensure that we have at least three Supreme Court judges on the bench, most probably after the contracts of our New Zealand Supreme Court judges which is next year (2019),” he told Radio New Zealand.
He said the government could appoint two Tongan Supreme Court judges.
He said having three judges would avoid conflicts of interest.
He said the presence of Australian and New Zealand judges on the Court of Appeal would be maintained.
“We may be assisted by a foreigner,” the Minister said.
“We can include some Tongans in our Court of Appeal, but it is good to start with the Supreme Court.”
The new Lord Chief Justice is expected to start working next month.
Kaniva News says
Give people clarity on Privy Council decision and future of judiciary
The failure to reappoint Lord Chief Justice Paulsen to the Supreme Court has rightly raised questions.
He has only held the position for four years, but in that time has presided over a number of landmark cases and created a judicial atmosphere in which there has been an expectation that legal practice will be sharpened up so that courts proceed properly.
While we do not normally present our readers with the many pages of reasoning that lie behind his decisions in a case, they show a judge familiar with case law and its application in a number of jurisdictions.
How long it will take for somebody to build up a similar knowledge of Tongan and Commonwealth law is open to question.
Questions have been raised about the role of the Privy Council in all of this. The lack of transparency over the non-extension of his contract is regrettable. It should be a principle of open government that appointments as important as this should be a matter of public record and scrutiny.
However, we should also ask how much of this situation has arisen because of the Justice Minister’s understandable desire to have an all Tongan Supreme Court bench.
We should ask whether Tonga currently has the resources to fulfil this ambition.
We should also consider what Tonga and other small Commonwealth states gain from having judges with international experience sitting on their benches.
The independence of the judiciary, the appointment of people with the proper skills to the bench and the creation of Tonga’s own pool of legal talent should be matters of concern to all Tongan citizens.
What the people need now is clear information about why Lord Chief Justice Paulsen was not reappointed and what the future of Tonga’s judiciary is going to look like.