Koe Tu'i Ko E Pule, The King is Sovereign: An Analysis of the 2017 Dissolution of the Tongan Parliament

AuthorWiliame Iupeli Gucake
PositionLLB, BCom, Barrister and Solicitor of the High Court of New Zealand. Wiliame is of Fijian and Samoan descent
e Kingdom of Tonga is the only c ountry in the P acif‌ic never to h ave been
colonised . Its constitut ional develo pment thus prov ides a unique mo del of customar y
Pacif‌ic gover nance in the mod ern world cont ext. On 25 August 2 017, the King of Tonga
dissolved Parl iament. e i mpetus was sai d to be due to issues w ith Prime Mini ster
Akilisi Pohi va. Elections held three mon ths later resulted in the re-elect ion of Pohiva as
Prime Minis ter. is articl e considers the c onstitutio nal relation ship between the Ki ng
and the Tongan people in tw o dierent spher es. Firstly, it will c onsider the di ssolution
of Parliament th rough a customa ry lens, usi ng the Kavei Koul a ‘e Fa, the four golden
pillars of Tongan socie ty, as a framework. It w ill specif‌ically look at fa ka‘apa‘apa (respect)
and its applica tion between King a nd people, considering it s utility as a mechanism for
accountabi lity. Secondly, th is article co nsiders the dec ision with resp ect to the main
accountabi lity mechani sm within the co mmon law, that is , judicial re view. is art icle
will evaluate t he legal strength of a ju dicial review pro ceeding brought aga inst the decisio n
of the King, explori ng the growing in digenous and ov erseas case la w and jurispr udence
on the constra ining of prerogati ve powers of a Sove reign. is ar ticle overal l considers
the constitu tional relati onship between t he King and his peop le, in the inters ection of
customary l aw and Western notions of pow er.
In the ti me beyond memory, the god Ta ngaloa
‘Eitum atupu‘a climb ed down from the s ky on a great ca suari na
tree, (he) saw a wom an, search ing for shellf‌i sh in the sea. T ime
* LLB, BCom , Barrist er and Solicitor of t he High Court of N ew Zealand. W iliame is of Fij ian and
Samoan de scent. He would l ike to acknow ledge his pa rents, fam ily and fr iends for their s upport
and rea rmation. H e also tha nks Profess or Tony Angelo QC, fo r his feedback a nd support, a nd
acknowledg es the late Profe ssor Guy C Powles and t he late Associ ate Professor Teres ia Teaiwa,
for their acad emic inspi ration for this paper. He al so acknowledges that t hese are hi s views
alone as an o utsider to Ton gan cult ure and apologises for a ny errors i n his under stand ing.
Vina‘a va‘alevu and Malo au‘pito.
The aut hor acknowledges the pa ssing of Prime M inister Pohiv a in 2019. Toka ā ‘i he nonga ‘a e
82 [Vol 27, 2020]
went by and the God kep t visiti ng the human woman na med
Va‘epopua. Aft er some time, Va‘epopua beca me pregnant but
Tanga loa ‘Eitumatupu‘a had t o return to his home i n the sky.
Not long afte r that she gave birth t o a boy named ‘Aho‘eitu.1
The genealogy of t he ruli ng fami ly of Tonga, and i ts connect ion to div inity, is
key for outsiders to b egin to u ndersta nd the impor tance a nd role of the Tonga n
roy al fa mi ly.2 Tonga, li ke many other cu ltures, has a trad itional a ssociation of t he
divine w ith thei r leaders. Whi le the old trad itiona l religions a re no longer lar gely
practised , this cog nitive l ink would h ave inf‌luenced m any of the cus toms and
practices per meating the roy al family a nd the interact ions between the ro yal famil y
and the people of Tong a. This is b est illu strated by t he consti tutiona l provisions
holding the p erson of the Ki ng as being t apu or sacred.3 The sacredness of ruler’s
personhood i s a customar y principle, which hold s that as leader of Tonga, t he King’s
mana is supreme and thu s his personhood is tapu .
On 24 August 2 017, the ngātu of Tonga’s constitutiona l history added a ne w print
to its folds; the d issolution of the Le gislative Ass embly (“Parliame nt”) by King Tupou
VI. This r esulted f rom growi ng tensions b etween the Poh iva government a nd the
tradit ional noble powerba se. The care taker govern ment stil l left Pri me Mini ster
Pohiva (“Pohiv a”) in power, and, ult imately, Pohi va emerged vict orious from t he
ensuing r e-election held on 16 November 2017. The decision had worldwide med ia
attention , with ma ny commentat ors concerned for demo cracy in Tonga .4 This ,
however, does not full y comprehend the cons titut ional relat ionships at play i n
Tonga and applie s a Western view of p olitics to t he situat ion, not necessa rily one
that is anga-fakatonga – the Tong an way.
This ar ticle considers t he exercise of the K ing’s prerog ative to di ssolve
Parlia ment. Firs tly, it considers the deci sion of the King by emp loying the cus tomary
lens of Kavei Koula ‘e Fa , with part icular reference t o faka‘apa‘apa. This is a n attempt
to underst and the decision from a Tonga n point of view. The ar ticle then analyse s
the legal b asis of the decision, w ith specif‌ic consider ation of whether the decis ion is
justicia ble and able to be heard be fore a court.
1 Ad rienne L Kaeppl er “Rank in Ton ga” (1971) 10(2) Et hnology 174 at 180.
2 For discussion of the soc ial orga nisati on in Tonga of Nobles a nd Commoner s in Tim Re
Salomon “A Bal ancing Act : Modern Equal ity vs Trad itional Nobi lity In Tong a” (2009) 40 VU WLR
3 Const itution of Tong a 1875 (Cap 2), cl 41.
4 Barbara D reaver “Fears of violen ce in Tonga after K ing Tupou VI di smisses PM Aki lisi Pohiva
and disso lves Parlia ment” ONE News Now .

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