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Lawmakers have just a year to implement dramatic change

By Pesi Fonua NUKU΄ALOFA, Tonga (Matangi Tonga, Nov. 12, 2009) - THE eagerly awaited final report of Tonga's Constitutional and Electoral Commission released this week contains some 80 recommendations on how to structure a new system of government for Tonga. While there are no surprises, the Commission does voice a concern over an apparent lack of understanding of its aims and the actual contents of its reports by some of the members of the House.

"It gives cause for some pessimism about the passage of this report and any consequent legislation through the House," the Commission noted in its conclusion.

The concern of the Commission is warranted because the House is the body that will have to decide on a future system of government for Tonga.

The Commission is also concerned that there may not be enough time to agree on the Tongatapu boundaries for the introduction of a proportional voting system, whereby three newly defined electoral divisions elect one representative each.

The Commission was on schedule with their final report, which they presented to HM King George Tupou V and the Legislative Assembly on November 5, and to the public on November 9.

Now, the government and the Legislative Assembly have only 12 months to introduce the new system of government prior to a General Election that is supposed to take place during November 2010.

The Constitutional and Electoral Commission Final Report prepared after national consultations over the last 10 months, consists of four volumes: Volume I, the Final Report; Volume II, the Written Submissions; Volume III, the Further Written Submissions; and Volume IV, the Transcripts of Public Forums.

The crunch of the report is the 80 recommendations relating to the five main sections of government, namely the Monarchy, the Privy Council; the Cabinet; the Legislature; and the Electoral Reform. The recommendations are supported by eight bills to amend the Constitution and various Acts, and a bill for a new Electoral Commission Act.

If the government and the Legislative Assembly decide to action the Commission's recommendations, the structure of Tonga's proposed new system of government will be very similar to what we have now, excepting that there will be an executive power shift from the King in Council to the Cabinet.

The proposed new system of government will remain a Constitutional Monarchy. So Tonga will still have a King, a Privy Council, a Cabinet, a Legislature and the Judiciary.

The major realigning of authority will be that of the King in Privy Council, which will no longer be part of the executive government. The Cabinet will become the executive government, accountable to the Legislative Assembly. The Legislative Assembly will be accountable to the electorates, who will elect 17 of a 26-members parliament. The nobles will continue to elect their nine representatives.

The King has already made a public statement of his willingness to surrender his executive power in council to the Cabinet, so the transferring of his power to the new cabinet should be reasonably smooth.

The King will remain a head of state and remain the Commander in Chief of the Tonga Defence Services.

However, the King will appoint the Prime Minister on the advice of the Legislative Assembly, and Cabinet Ministers from elected members on the advice of the Prime Minister.

This is a reverse of the current practice where the King has the power to appoint his own Prime Minister; and Cabinet Ministers from inside and outside the House, on the advice of the Prime Minister.

The size of the Cabinet will be limited to a maximum of 10 ministers, in addition to the Prime Minister. Any Minister who ceases to hold a ministerial position shall retain his seat in the Assembly as an ordinary elected representative until the next election unless deprived of his seat by impeachment or for any other disciplinary reason.

The King will retain his power to appoint one of the nobles' representatives in the assembly as Speaker of the House, and the King will still have the privilege to withhold his assent to laws and to dissolve the Legislative Assembly at his pleasure.

The King will appoint the judges to the Court of Appeal and the Supreme Court on the advice of the Judicial Services Commission. He will also appoint the Privy Councilors, but the governors of Vava'u and Ha'apai, the secretary of the Traditions Committee, two nominated nobles and a nominated church leader should be Privy Councilors ex officio, but Privy Councilors could not be members of the Legislative Assembly.

The Privy Council will become an advisory body to advise the king and it will no longer have any judicial function or power to pass ordinances.

The transferred executive power to govern will rest entirely on the Cabinet, which is accountable to the Legislative Assembly.

They recommended that the Legislative Assembly shall take immediate steps to appoint a committee both of members of the House and members of the public to advice on the constitution, terms of reference and duties of an independent Legislative Assembly Salaries Commission and that a Bill be prepared for consideration by the Assembly before the election in 2010.

The Legislative Assembly Salaries Commission shall include determination of all matters relating to salaries and allowances of representatives, determination of all claims for allowances and expenses, revision of the rules for travel within and outside the country and for payment for time worked outside the prescribed hours and any other matters relating to the payment of money to elected members of the House.

The Commission recommended that the establishment of an Electoral Commission should be given the highest priority to allow it to perform its functions in time for the general election in 2010.

The voting in future elections shall be by a single transferable vote and the number of people's representatives shall be nine for Tongatapu, three each for Vava'u and Ha'apai and one each for 'Eua and Niuatoputapu/Niuafo'ou.

The electoral district of Tongatapu shall be subdivided into three electoral divisions each of which will return a proportion of the representatives. The boundaries of the electoral divisions on Tongatapu and the number of representatives elected from each shall be determined by the Electoral Commission.

The Commission pointed out that time is critical, stating that, "The responsibility of deciding which and how many of the recommendations are to be implemented lies on the Assembly. . . . If our recommendations for the electoral system are to be adopted or, indeed, if any major changes are to be made, time is critical."

"Given the will, it can be done. If it is not, such is the expectation of an election in 2010, we would suggest that, rather than defer the election beyond the promised date, it might be held under the existing electoral districts but using the single transferable vote and the recommended increased numbers of representatives. That would remove the time consuming determination of new boundaries of the divisions on Tongatapu."

The Commission also expressed its concern that, "the lengthy debate on the interim report in the Assembly with its frequent references to already entrenched views in the minds of many representatives does not bode well. Coupled with the all to apparent lack of understanding of the aims or even of the actual contents of the interim report by some of the members of the House, it gives cause for some pessimism about the passage of this report and any consequent legislation through the House . . . "

The concern of the Constitutional and Electoral Commission is warranted because the power that has been given to the House to decide on a future system of government for Tonga, despite the apparent lack of understanding by members of the House of the role of the Commission and the fact that the House has not yet agreed on the composition of the House and the electoral system.

The irony of the situation is that one important issue that the House agreed on was for government not ratifying the CEDAW convention, and even the Commission did not think it was necessary to have seats allocated for women in the House, even though there are seats allocated for the nobles.

The other main issue of contention is the big reduction in the number of Cabinet Ministers from the current 16 to a proposed 10. The reduction means that the executive will not be a majority in the House.

The members of the Constitutional and Electoral Commission were chairman, Justice Ward, and members Dr Sitiveni Halapua, Dr 'Ana Taufe'ulungaki, Noble Vaea, and Sione Fonua.

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