CONSTITUTION OF TONGA

PART 2 - FORM OF GOVERNMENT

THE JUDICIARY

83A. Rule of Law and Judicial Independence

The existing underlying constitutional principles of the Rule of Law and Judicial Independence shall always be maintained.

83B. The Lord Chancellor

(1) The King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, shall appoint a Lord Chancellor who shall have primary responsibility for –

(a) the administration of the courts;

(b) all matters related to the Judiciary and its independence;

(d) such related matters as are specified in this Constitution or any other Act.

(2) The Lord Chancellor shall, unless otherwise provided by law, have complete discretion to exercise his functions, powers and duties, independently without any interference whatsoever from any person or authority.

(3) The Lord Chancellor may, with the consent of the King in Privy Council, make regulations for the following purposes –

(a) to establish an age at which the Attorney General, a Judge, a Magistrate and the Lord Chancellor shall retire from office;

(b) to regulate a judicial pension scheme;

(4) The Lord Chancellor shall be a person who is qualified to be a Judge of the Supreme Court and he shall, subject to any contractual arrangements, hold office during good behaviour.

(5) The King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, shall determine the terms of appointment of the Lord Chancellor, and shall have the power to dismiss him.

(6) In the event of a vacancy in the office of the Lord Chancellor, and pending the appointment of a Lord Chancellor under sub-clause (1), the King in Privy Council may appoint a suitably qualified person to be Lord Chancellor ad interim, to hold office only until a substantive appointment has been made. Any such appointee shall have all the powers and privileges and perform all the duties of the Lord Chancellor as set forth in this clause and the Lord Chancellor ad interim shall also be the Chairman of the Judicial Appointments and Discipline Panel constituted under clause 83C.

83C. Judicial Appointments and Discipline Panel

(1) There is hereby established, as a Committee of the Privy Council, a Judicial Appointments and Discipline Panel comprising –

(a) the Lord Chancellor, who shall be the Chairman;

(b) the Lord Chief Justice;

(d) the Law Lords, being such persons versed in the law as the King from time to time shall so appoint.

(2) The Judicial Appointments and Discipline Panel shall recommend to the King in Privy Council –

(a) the appointment of eminently qualified persons to the Judiciary, and as Lord Chancellor and to any other office that the King requires;

(b) the disciplining of members of the Judiciary;

(c) the dismissal of members of the Judiciary for bad behaviour through gross misconduct or repeated breaches of the Code of Judicial Conduct;

(d) the remuneration and terms of service of members of the Judiciary;

(e) a Judicial Pensions Scheme;

(f) a Code of Judicial Conduct; and

(g) the appointment of assessors to the Panel of Land Court Assessors.

(3) At any meeting of the Judicial Appointments and Discipline Panel the quorum shall be three, namely the Lord Chancellor (or anyone appointed to act as Lord Chancellor ad interim); one of the Lord Chief Justice or the Attorney General (or anyone appointed to act as Attorney General ad interim); and not less than one of the Law Lords.

84. The Courts

(1) The judicial power of the Kingdom shall be vested in the superior courts of the Kingdom (namely the Court of Appeal, the Supreme Court, and the Land Court) and a subordinate court namely the Magistrate's Court.

(2) The Judiciary of the Kingdom shall comprise –

(a) the Lord President of the Court of Appeal and Judges of the Court of Appeal;

(b) the Lord Chief Justice, who shall be the professional Head of the Judiciary, and Judges of the Supreme Court;

(d) the Chief Magistrate and the Magistrates.

85. The Court of Appeal

(1) The Court of Appeal shall consist of the Lord President of the Court of Appeal and of such other judges as may be appointed from time to time by the King with the consent of Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel:

Provided that no person shall be appointed unless—

(a) he holds, or has held, high judicial office; or

(b)

(i) he is qualified to practise as an advocate in a court in some part of Her Britannic Majesty's dominions having unlimited jurisdiction in civil or criminal matters; and

(ii) he has been qualified so to practise for not less than ten years.

(2) The King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, shall determine the terms of appointment of the Judges of the Court of Appeal and may dismiss them.

86. The Supreme Court

(1) The Supreme Court shall consist of the Lord Chief Justice, who shall be the professional Head of the Judiciary, and such other judges as may be appointed from time to time by the King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel:

Provided that no person shall be appointed unless —

(a) he holds, or has held, high judicial office; or

(b)

(i) he is qualified to practise as an advocate in a court in some part of the Commonwealth having unlimited jurisdiction in civil or criminal matters; and

(ii) he has been qualified so to practise for not less than ten years.

(2) The King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, shall determine the terms of appointment of the Lord Chief Justice and Judges of the Supreme Court, and may dismiss them.

86A. The Land Court

(1) The Land Court shall consist of a Lord President and other Judges, assisted by assessors, as may be appointed from time to time by the King with the consent of Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel.

(2) The King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, shall determine the terms of appointment of the Lord President and Judges of the Land Court and may dismiss them.

87. Judges to hold office during good behaviour

The judges, subject to any contractual arrangements, shall hold office during good behaviour:

Provided that it shall be lawful to appoint Judges of the Supreme Court and Court of Appeal for limited periods, or for the purposes of a particular sitting of the Supreme Court or Court of Appeal, or of particular proceedings to come before the Court, on such terms as may be approved by the King in Privy Council.

88. Acting Judge

(1) It shall be lawful for the King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel, at any time during the illness or absence of any judge, or for any other temporary purpose to appoint an acting judge for the period during which the judge is ill or absent or for the period necessary to effect the temporary purpose.77

(2) An acting judge shall have the jurisdiction and powers of, and may exercise all the authorities which are vested in or may be exercised by a judge and shall be paid such salary as may be determined by the King in Privy Council, after receiving advice from the Judicial Appointments and Discipline Panel.

89. Powers

The judges shall have power to direct the form of indictments to control the procedure of the lower courts, and to make rules of procedure.

90. Jurisdiction of Supreme Court

The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the Court of Appeal in other land matters) and in all matters concerning Treaties with Foreign States and Ministers and Consuls and in all cases affecting Public Ministers and Consuls and all Maritime Cases.

91. Appeals from Supreme Court

(1) Subject to the provisions of any Act of the Legislative Assembly relating to appeals to the Court of Appeal, a party to any proceedings in the Supreme Court or Land Court (excepting matters relating to the determination of hereditary estates and titles) who is aggrieved by a decision given in those proceedings by that Court, or a judge thereof, sitting in first instance, may appeal to the Court of Appeal against such decision.

(2) Except as may be provided by any Act of the Legislative Assembly, or by rules in respect of limited classes of appeals, no appeal shall be finally determined by less than three members of the Court of Appeal.

92. Jurisdiction of Court of Appeal

The Court of Appeal shall have exclusive power and jurisdiction to hear and determine all appeals which by virtue of this Constitution or of any Act of the Legislative Assembly lie from the Supreme Court or Land Court (excepting matters relating to the determination of hereditary estates and titles) or any judge thereof and shall have such further or other jurisdiction as may be conferred upon it by any such Act.

93. (Repealed by Act 23 of 1990)

94. Judge may not hear appeal from own decision

It shall not be lawful for any judge to sit or adjudicate upon an appeal from any decision which he may have given.

95. Oath of Judge

The Lord Chief Justice and any other judge shall take the following oath:

“I swear in the presence of God that I will be loyal to His Majesty King Tupou VI the lawful King of Tonga and that I will perform truly and with impartiality my duties as a judge in accordance with the Constitution and the Laws of the Kingdom”.

The judge shall read and sign this oath in the presence of the Cabinet:

Provided that a Lord Chief Justice or any other judge, who is not a Tongan subject, shall take the following oath in lieu of the foregoing oath:

“I swear in the presence of God that I will perform truly and with impartiality my duties as a judge in accordance with the Constitution and the Laws of the Kingdom .

96. Court fees

The Legislature shall determine the fees payable to the various courts. The Registrar of the Supreme Court shall keep the court records.

97. Judge not to receive fine

It shall not be lawful for any judicial officer to receive any portion of a fine paid by any person convicted of an offence or for the Government to allot prisoners to serve any judicial officer, police officer, juror, or any other person as payment for duties discharged by them.

98. (Repealed by Act 23 of 1990)

99. Trial by jury

Any person committed for trial before the Supreme Court on a charge of having committed any criminal offence shall if he shall so elect be tried by a jury; and whenever any issue of fact is raised in any civil action triable in the Supreme Court any party to such action may claim the right of trial by jury; and the law of trial by jury shall never be repealed.84

100. Form of verdict

It is the duty of the jury in criminal cases to pronounce whether the person accused is guilty or not guilty according to the evidence given before the Court. In civil cases the jury shall give judgment for payment or compensation as the case may be and according to the merits of the case.

101. Judge to direct jury

In civil and criminal cases the judge shall direct the jury upon the law bearing upon the case and assist them in arriving at a just decision upon the case before them. The judge shall have power to refuse to admit evidence which he may deem to be irrelevant or improper.

102. Lord Chief Justice to report upon criminal statistics

The Lord Chief Justice shall report once a year to the King upon the administration of justice and the criminal statistics of the country and upon any amendments in the law which he may recommend. And the King shall lay this report before the Assembly at its next meeting in the same manner as the reports of the ministers.

103. Powers of Magistrates

The Legislature shall determine the time and place for holding the Courts and shall limit the powers of the magistrates in criminal and civil matters and shall determine what cases shall be committed for trial to the Supreme Court.

103A Relief for breach of Constitution

The remedy for breach of any provisions of the Constitution shall be declaratory relief and shall not affect any award of damages under any other law.