12:33 PM |
Legal expert says Tonga not like Fiji yet
Updated
John Cauchi's resignation as attorney-general in Tonga is a disappointing development for the rule of law, according to a prominent constitutional law expert. Professor Bill Hodge, of the Law Faculty of Auckland University in New Zealand, says Tonga can't be compared directly with Fiji as regards the relationship between the judiciary and the executive branch of government. But he says listening to John Cauchi's reasons for resigning, its clear that extremely troubling things are happening.
Presenter: Bruce Hill
Speaker: Professor Bill Hodge from the Law Faculty of Auckland University, New Zealand
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HODGE: First of all it's really quite inspirational to hear a legal officer responsible for the rule of law in a small island nation to speak so emphatically about the rule of law, the independence of the judiciary, separation of powers, that is core constitutional stuff. I'd love to use that in teaching in the constitutional law classes. It's basic rote constitutional law. But my second feeling is one of heartbreak, my feeling is tragedy because at the same time finally we've got democracy moving in Tonga, we've got elections coming up and I wonder, I'd like to be optimistic, and I'm wondering what will happen when a new 17 member popularly elected legislature parliament comes in and replaces this outgoing executive, to what extent can the situation be rescued. I'm not all doom and gloom, we do have light at the end of the tunnel later in this year, so perhaps, perhaps we can step toward a resurrection of the rule of law. But the most chilling thing is that the prospect of some prosecutions, I mean it's tragic that a boat sank, but it's also tragic that the sinking of a boat is sinking of judicial independence at the same time.
HILL: The former attorney general did made reference to Tonga to a certain extent going down the path already set out by Fiji as regards relations between the judiciary and the government. Do you think that he was overstating the case at all? Tonga's no Fiji, there's no coup or anything?
HODGE: No, no I think it's overstating in fact because right now we've got the King blessing this progress toward democracy. We do have elections set out for this year as opposed to whatever it is, 2014 if they do happen in Fiji. I'm going to cross my fingers and hope this is a blip, a very big blip, a spike in the progress to greater democracy, which is progressing this year. And I mean we've had such tremendous success in Tonga with this movement, and the King taking part in it. It was unforeseeable, unthinkable just 20 years ago that we'd be where we are now. So no, this isn't Fiji, not at all, but it is a characteristic of a small island state where the judges come from outside with outside funding, and they're always going to go if the outside funding isn't there or if they're not especially friendly to the executive. It's always been a sensitive point, I've never seen it erupt quite like this except in Fiji, and this is rare to this extent in the Pacific, with Fiji being the outer limit of the bad example.
HILL: Some of the judicial positions in Tonga are obviously paid for by the Commonwealth Secretariat or by Australia and New Zealand. Does what's happened there in Tonga pose in any sense a challenge for Australia and New Zealand? Should it just be business as usual?
HODGE: I think they should look very carefully at the tenure of judges, and just as judges who are from New Zealand and Australia probably rightly walked away from the loss of the rule of law in Fiji, I think they should just take a careful look. The tenure up there is short, and if you're compliant you might get a renewal, and if you're not then you go back home. It's just something to be extremely careful about, but at the same time I have to say being a judge in a small jurisdiction if you're from the jurisdiction is extremely difficult because your cousins will be on both sides in any major case. So it's just about not quite impossible, because Falefatu Sapolu in Samoa has done a very good job and hasn't been accused of any corruption, has managed to walk a tightrope between all of the family connections around the place. So it is possible, but I would be concerned about becoming a judge up in Tonga, but the governments of Australia and New Zealand will not want to undermine the progress that they're making, so I think they will cross fingers continue to support the rule of law in Tonga or try to return to it.
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