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 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

‘Eiki

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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 né

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 .