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

• Author: Wiliame Iupeli Gucake
• Position: LLB, BCom, Barrister and Solicitor of the High Court of New Zealand. Wiliame is of Fijian and Samoan descent
• Pages: 81-98

KOE TU‘I KO E PULE, THE KING IS

SOVEREIGN: AN ANALYSIS OF THE

2017 DISSOLUTION OF THE TONGAN

PARLIAMENT

†

Abstract

e Kingdom of Tonga is the only country in the Pacif‌ic never to have been

colonised. Its constitutional development thus provides a unique model of customary

Pacif‌ic governance in the modern world context. On 25 August 2017, the King of Tonga

dissolved Parliament. e impetus was said to be due to issues with Prime Minister

Akilisi Pohi va. Elections held three mon ths later resulted in the re-elect ion of Pohiva as

Prime Minister. is article considers the constitutional relationship between the King

and the Tongan people in two dierent spheres. Firstly, it will consider the dissolution

of Parliament through a customary lens, using the Kavei Koula ‘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 application between King a nd people, considering it s utility as a mechanism for

accountability. Secondly, this article considers the decision with respect to the main

accountability mechanism within the common law, that is, judicial review. is article

will evaluate t he legal strength of a ju dicial review pro ceeding brought aga inst the decisio n

of the King, exploring the growing indigenous and overseas case law and jurispr udence

on the constraining of prerogative powers of a Sovereign. is article overall considers

the constitutional relationship between the King and his people, in the intersection of

customary l aw and Western notions of pow er.

In the time beyond memory, the god Tangaloa

‘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 academic inspi ration for this paper. He al so acknowledges that these are hi s views

alone as an outsider to Tongan cult ure and apologises for any errors in his understanding.

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

‘Eiki

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went by and the God kept visiti ng the human woman na med

Va‘epopua. After 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 the ruling family of Tonga, and its connection to divinity, is

key for outsiders to begin to understand the importance and role of the Tongan

roy al fami ly.2 Tonga, like many other cu ltures, has a traditional association of the

divine with their leaders. While the old traditional religions are no longer largely

practised, this cognitive link would have inf‌luenced many of the customs and

practices per meating the roy al family a nd the interact ions between the ro yal famil y

and the people of Tonga. This is best illustrated by the constitutional provisions

holding the person of the King as being tapu 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 24August 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 resulted from growing tensions between the Pohiva government and the

traditional noble powerbase. The caretaker government still left Prime Minister

Pohiva (“Pohiva”) in power, and, ultimately, Pohiva emerged victorious from the

ensuing re-election held on 16 November 2017. The decision had worldwide media

attention, with many commentators concerned for democracy in Tonga.4 This,

however, does not fully comprehend the constitutional relationships at play in

Tonga and applies a Western view of politics to the situation, not necessarily one

that is anga-fakatonga – the Tong an way.

This article considers the exercise of the King’s prerogative to dissolve

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 Tongan point of view. The ar ticle then analyses

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 social organisation in Tonga of Nobles and Commoners in Tim René

Salomon “A Bal ancing Act : Modern Equal ity vs Trad itional Nobi lity In Tong a” (2009) 40 VU WLR

369.

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 .