Act of Constitution of Tonga (Amendment) (No. 2) Act 2010

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ActofConstitutionofTonga_Amendment__No.2_Bill2010v8


Act No. 20 of 2010




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ACT OF CONSTITUTION OF TONGA
(AMENDMENT) (NO.2) ACT 2010





Act of Constitution of Tonga (Amendment) (No.2)
Act 2010 Arrangement of Sections





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ACT OF CONSTITUTION OF TONGA (AMENDMENT)
(NO.2) ACT 2010

Arrangement of Sections
Section

1 Short Title .................................................................................................... 5
2 Clause 17 amended – Government to be impartial ................................................ 5
3 Clause 19 amended – Expenditure to be voted ......... ...................................... 5
4 Clause 22 amended – Guards and Militia .............................................................. 6
5 Clause 24 replaced – Public Officer not to engage in trade ................................... 6
6 Clause 30 amended – Government ....................................................................... 6
7 Clause 31 amended – Form of Government .......................................................... 6
8 Clause 31A inserted – Attorney General ........................................................ 7
9 Clause 37 replaced – King may pardon convicts ........ ...................................... 7
10 Clause 39 amended – Treaties .................................................................. 7
11 Clause 41 amended – King’s powers – Signature to Acs ..................................... 8
12 Clause 50 replaced – Constitution and powers of Privy Council........................... 8
13 Clause 50A inserted – Prime Minister ................................................................. 8
14 Clause 50B inserted –Votes of No Confidence ..................................................... 9
15 Clause 51 replaced – Constitution and powers of Cabinet .................................. 10
16 Clause 54 replaced – Governors – how appointed ............................................... 11
17 Clause 55 amended – Powers of Governors ............................................... 11
18 Clause 59 replaced – Composition of Legislative Assembly............................... 11
19 Clause 61 replaced – Speaker ................................................................. 12
20 Clause 62 replaced – Rules of procedure ..................................................... 12
21 Clause 70 amended – Offences against the Assembly ......................................... 13
22 Clause 71 replaced – Noble deprived of his seat ........ ...................................... 13
23 Clause 75 amended – Impeachment .................................................................... 13
24 Clause 76 amended – Bye-elections ............................................................ 13
25 Clause 77 replaced – General Elections ....................................................... 14
26 Clause 85 amended – The Court of Appeal ................................................. 14

Arrangement of Sections
Act of Constitution of Tonga (Amendment) (No.2)

Act 2010





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27 Clause 86 replaced – The Supreme Court ............................................................ 14
28 Clause 87 amended – Judges to hold office during good behaviour .................... 15
29 Schedule – Procedure for appointing a Prime Minister ....................................... 15
30 Minor amendments .................................................................................... 15



SCHEDULE 16


Act of Constitution of Tonga (Amendment) (No.2) Act
2010 Section 1





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Act No. 20 of 2010 Page 5




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ACT OF CONSTITUTION OF TONGA (AMENDMENT)
(NO.2) ACT 2010

Act No. 20 of 2010

AN ACT TO MAKE VARIOUS AMENDMENTS TO REVISE THE
CONSTITUTION

I assent,
GEORGE TUPOU V,
24th November 2010.


BE IT ENACTED by the King and the Legislative Assembly of Tonga in the Legislature
of the Kingdom as follows:
__________________________________________________________________

1 Short Title

(1) This Act may be cited as the Act of Constitution f Tonga (Amendment)
(No. 2) Act 2010.

(2) In this Act, the Act of Constitution of Tonga, s amended, is referred to as
“the Constitution”.

2 Clause 17 amended – Government to be impartial

Clause 17 of the Constitution, in the English version only, is amended by repealing
“govern” and replacing it with “reign”.

3 Clause 19 amended – Expenditure to be voted

Clause 19 of the Constitution is amended by –

Section 4
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2010





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(a) repealing paragraph (b); and

(b) repealing “Treasurer” and replacing it with “Minister for Finance”
wherever it appears.

4 Clause 22 amended – Guards and Militia

Clause 22 of the Constitution is amended by –

(a) repealing the first sentence; and

(b) in the Tongan version only, by repealing the words “Pea ‘oku” and
replacing them with “‘Oku”.

5 Clause 24 replaced – Public Officer not to engage in trade

Clause 24 of the Constitution is repealed and replac d with the following –



“24 Public officer not to engage in trade

It shall not be lawful for anyone holding any office under the Government
whether of emolument or otherwise to hold any appointment from another
Government without first obtaining permission from Cabinet. And it shall not
be lawful for anyone holding an office of emolument u der the Government
to engage in trade or work for anyone else, except with the prior consent of
Cabinet.”.

6 Clause 30 amended – Government

In Clause 30 of the Constitution –

(a) renumber the clause as 31; and

(b) repeal the words “King Privy Council and Cabinet (Ministry)” and
replace them with “Cabinet”.

7 Clause 31 amended – Form of Government

Clause 31 of the Constitution is repealed, renumbered and replaced with –



“30 Form of Government

The form of government for this Kingdom is a Constitutional Monarchy
under His Majesty King George Tupou V and his successors.”.

Act of Constitution of Tonga (Amendment) (No.2) Act
2010 Section 8





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8 Clause 31A inserted – Attorney General

The Constitution is amended by inserting the following clause –



“31A Attorney Genera l

(1) The King in Privy Council shall appoint an Attorney General, who
shall:

(a) be the principal legal advisor to Cabinet and Government;

(b) be in charge of all criminal proceedings on behalf of the
Crown; and

(c) perform any other functions and duties required under law.

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

(3) The Attorney General 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.

(4) The King in Privy Council shall determine the terms of appointment
of the Attorney General, and shall have the power to dismiss him.”.

9 Clause 37 replaced – King may pardon convicts

Clause 37 of the Constitution is repealed and replac d with the following –



“37 King may grant pardons

It shall be lawful for the King in Privy Council to grant a Royal Pardon to any
person for a breach of law (including any person who has been convicted of a
breach of law) except in cases of impeachment.”.

10 Clause 39 amended – Treaties

Clause 39 of the Constitution is amended by repealing the following –

“It shall not be lawful for the King to alter the customs duties without the
consent of the Legislative Assembly.”.

Section 11
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11 Clause 41 amended – King’s powers – Signature to Acts

Clause 41 of the Constitution is amended by repealing “governs” and replacing it
with “reigns”.

12 Clause 50 replaced – Constitution and powers of Privy Council

Clause 50 of the Constitution is repealed and replac d with the following –



“50 Constitution and powers of Privy Council

(1) The King shall appoint a Privy Council to provide him with advice. The
Privy Council shall be composed of such people whom the King shall
see fit to call to his Council.

(2) If any case shall be heard in the Land Court relating to the
determination of hereditary estates and titles, it shall be lawful for
either party thereto to appeal to the King in Privy Council which shall
determine how the appeal shall proceed and the judgment of the King
in Privy Council shall be final.

(3) Privy Council may by Order in Council regulate its own procedures.”.

13 Clause 50A inserted – Prime Minister

The following heading and clause is inserted in the Constitution –


“THE PRIME MINISTER

50A The Prime Minister

(1) The King shall appoint from amongst the elected r presentatives a
Prime Minister who is recommended by the Legislative Assembly in
accordance with the procedure set out in the Schedule to, or clause 50B
of, this Constitution.

(2) The Prime Minister shall hold office until –

(a) another Prime Minister is appointed in accordance with this
Constitution;

(b) his appointment is revoked under clause 50B;

(c) he dies, resigns, or his appointment is revoked after he ceases to
be an elected representative for any reason other tan he
dissolution of the Legislative Assembly; or

(d) he becomes ineligible to hold the office in accordance with this
Constitution or any other law.

Act of Constitution of Tonga (Amendment) (No.2) Act
2010 Section 14





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(3) The Prime Minister shall regularly and as required report to the King
upon matters that have arisen with the government and upon the state of
the country.”.

14 Clause 50B inserted –Votes of No Confidence

The following clause is inserted in the Constitution –


“50B Votes of No Confidence

(1) If the Legislative Assembly passes a motion described as a “Vote of no
confidence in the Prime Minister” in accordance with this clause, then
upon delivery of that resolution to the King by the Speaker, the Prime
Minister and all Ministers shall be deemed to have resigned and their
appointments revoked.

(2) A vote of no confidence in the Prime Minister –

(a) shall not be moved unless at least 5 working days’ notice of the
intention to move such a motion has been given to the Speaker;
and

(b) shall be of no effect if made within 18 months after a general
election has been held, nor within 6 months before the date by
which an election shall be held in accordance with clause 77(1),
nor within 12 months after the date on which the last such motion
was voted upon in the Legislative Assembly.

(3) If within 48 hours of the revocation of the appointment of the Prime
Minister and all Ministers in accordance with sub-clause (1) following
a vote of no confidence in the Prime Minister, the Legislative Assembly
passes a motion that recommends the appointment of another elected
representative as Prime Minister, then upon delivery of that resolution
to the King by the Speaker, the King shall appoint the person so
nominated as the Prime Minister.

(4) If no recommendation is delivered to him in accordance with sub-
clause (3) following a vote of no confidence in thePrime Minister, the
King shall –

(a) dissolve the Legislative Assembly and command that a general
election be held on a date not more than 90 days thereafter;

(b) appoint as interim Prime Minister the elected rpresentative who
the King considers best able to lead an interim government, who
shall not be the Prime Minister in respect of whom a otion of
no confidence was passed in the Legislative Assembly, until a
Prime Minister is appointed after the general election; and

Section 15
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(c) in consultation with the interim Prime Minister, appoint interim
Ministers to hold office until Ministers are appointed after the
general election.”.

15 Clause 51 replaced – Constitution and powers of Cabinet

Clause 51 of the Constitution is repealed and replac d with –



“51 Function, constitution and powers of Cabinet

(1) The executive authority of the Kingdom shall vest in the Cabinet,
which shall be collectively responsible to the Legislative Assembly for
the executive functions of the Government.

(2) The Cabinet shall consist of the Prime Minister and such other
Ministers who are nominated by the Prime Minister and ppointed by
the King:

Provided that –

(a) the Prime Minister may nominate as Cabinet Ministers not more
than 4 persons who are not elected representatives;

(b) the Prime Minister and Cabinet shall be fewer in number than
half of the number of elected members of the Legislative
Assembly excluding the Speaker.

(3) A Minister shall retain his position as Minister until –

(a) his appointment is revoked by the King on the recommendation
of the Prime Minister or in accordance with clause 50B;

(b) he dies, resigns or is dismissed from office following
impeachment under clause 75; or

(c) he becomes ineligible to hold the office in accordance with this
Constitution or any other law:

PROVIDED THAT: Following a general election, and when appointed
under clause 50B (4)(c), Ministers shall be and remain as caretaker
Ministers until their appointments are revoked or cntinued on the
recommendation of the newly appointed Prime Minister; and during
such period caretaker Ministers shall not incur any unusual or
unnecessary expenditure without the written approval f the caretaker
Minister for Finance.

(4) The Prime Minister may assign and re-assign ministr es to and amongst
the Cabinet Ministers.

(5) Each Minister shall draw up an annual report to the Legislative
Assembly advising of the activities and plans of his ministry and if the
Legislative Assembly shall wish to know anything con erning the

Act of Constitution of Tonga (Amendment) (No.2) Act
2010 Section 16





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ministry of any Minister he shall answer all questions put to him by the
Legislative Assembly and report everything in connection with his
ministry.

(6) A Minister who is not an elected representative shall sit and vote in the
Legislative Assembly and shall, unless otherwise provided in any Act,
have all the rights, duties and responsibilities of an elected
representative except that he shall not be entitled to vote in any vote of
no confidence in the Prime Minister under clause 50B.

(7) The term “executive authority” in sub-clause (1) excludes all powers
vested in the King or the King in Council, whether by this Constitution,
or any Act of the Legislative Assembly, any subordinate legislation,
and Royal Prerogatives.”.

16 Clause 54 replaced – Governors – how appointed

Clause 54 of the Constitution is repealed and replac d with –



“54 Governors – how appointed

The King shall appoint Governors to Ha’apai and Vava’u on the advice of the
Prime Minister.”.

17 Clause 55 amended – Powers of Governors

Clause 55 of the Constitution is amended by repealing “If the administration of any
Governor be contrary to law it shall be lawful to impeach him in the Legislative
Assembly.”.

18 Clause 59 replaced – Composition of Legislative Assembly

Clause 59 of the Constitution is repealed and replac d with –



“ 59 Composition of Legislative Assembly

(1) The Legislative Assembly shall be composed of –

(a) the representatives of the nobles;

(b) the representatives of the people; and

(c) all members of the Cabinet.

(2) Cabinet Ministers who are elected representatives shall, unless
dismissed after impeachment under clause 75, remain as members of
the Legislative Assembly and representatives in their r spective
electoral constituency during their appointment as Minister.”.

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19 Clause 61 replaced – Speaker

Clause 61 of the Constitution is repealed and replac d with –



“ 61 Speaker

(1) The King shall, within 5 days after the appointment of a Prime Minister
in accordance with clause 50A following a general election, appoint
one of the elected representatives of the nobles on the recommendation
of the Legislative Assembly, to be the Speaker of the Legislative
Assembly.

(2) The Speaker shall remain in office until –

(a) the King appoints an Interim Speaker following the next general
election in accordance with sub-section (8) of the Schedule to
this Constitution;

(b) his appointment is revoked under sub-clause (3); or

(c) he dies, resigns or his appointment is revoked after he ceases to
be an elected representative of the nobles for any reason other
than the dissolution of the Legislative Assembly.

(3) If the Prime Minister, with the approval of at least half of the members
of the Legislative Assembly, recommends to the King that the Speaker
be removed from office, the King shall revoke the Speaker’s
appointment and appoint a new Speaker on the recommendation of the
Legislative Assembly.

(4) The King shall appoint a Speaker within 7 days of the occurrence of a
vacancy.”.

20 Clause 62 replaced – Rules of procedure

Clause 62 of the Constitution is repealed and replac d with –



“ 62 Rules of procedure

(1) The Legislative Assembly shall make its own rules of procedure for the
conduct of its meetings.

(2) Any member of the Legislative Assembly may, in accordance with its
rules of procedure –

(a) introduce a Bill in the Assembly;

(b) propose a motion for debate in the Assembly; or

(c) present a petition to the Assembly,

Act of Constitution of Tonga (Amendment) (No.2) Act
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Act No. 20 of 2010 Page 13




and it shall be dealt with in accordance with the Assembly’s rules of
procedure.

21 Clause 70 amended – Offences against the Assembl y

Clause 70(1) of the Constitution is amended by repealing the words after
subparagraph (f) and replacing it with –

“may, by resolution of the Legislative Assembly, be imprisoned for any
period not exceeding thirty days and if he is a memb r of the Assembly he
may be suspended from the Assembly for up to thirty da s in substitution for
or in addition to any other penalty.”.

22 Clause 71 replaced – Noble deprived of his seat

Clause 71 of the Constitution is repealed and replac d with –



“71 Noble deprived of his seat

Should any representative of the nobles be deprived of his seat another noble
shall be elected to succeed to his seat in the Legislative Assembly but his title
and hereditary estates shall not be confiscated except for treason or sedition.”.

23 Clause 75 amended – Impeachment

(1) Clause 75 of the Constitution is amended by repealing the words “the
members of the Legislative Assembly to impeach any Privy Councillor,
Minister, Governor, or Judge” in sub-clause (1) andreplacing it with –

“a member of the Legislative Assembly, of his own volition or as the
result of a written complaint made to him by any Tongan subject, to
move the Assembly, in accordance with the rules of pr cedure, for the
impeachment of any Minister or representative of the nobles or of the
people”.

(2) Clause 75 of the Constitution is amended by repealing sub-clauses (3) and (4)
and replacing them with –

“(3) The trial shall be conducted in accordance with the eleventh
clause and the Chief Justice shall preside.”.

24 Clause 76 amended – Bye-elections

Clause 76 of the Constitution is amended by inserting, after the word “people” the
following –

“and when a member is deprived of his seat after impeachment,”.

Section 25
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25 Clause 77 replaced – General Elections

Clause 77 of the Constitution is repealed and replac d with –



“77 General elections

(1) Elections shall ordinarily be held for all the r presentatives of the
nobles and the people every four years, and if not earlier dissolved the
Legislative Assembly shall stand dissolved at the expiration of four
years from the date of the last general election.

(2) It shall be lawful for the King, at his pleasure, to dissolve the
Legislative Assembly at any time and command that new elections be
held.

(3) If the Legislative Assembly is dissolved by theKing or by the operation
of sub-clause (1), the King shall, after consultation with the Speaker of
the Legislative Assembly, fix a date for a general lection.”.

26 Clause 85 amended – The Court of Appeal

Clause 85 of the Constitution is amended by inserting the following sub-clause –

“(2) The King in Privy Council shall determine the terms of appointment
of the Judges of the Court of Appeal and may dismis them.”.

27 Clause 86 replaced – The Supreme Court

Clause 86 of the Constitution is repealed and replac d with –


“86 The Supreme Court

(1) The Supreme Court shall consist of the Chief Justice and such other
judges as may be appointed from time to time by the King in Privy
Council:

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 shall determine the terms of appointment of
the Chief Justice and Judges of the Supreme Court, and may dismiss
them.”.

Act of Constitution of Tonga (Amendment) (No.2) Act
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28 Clause 87 amended – Judges to hold office during good behaviour

Clause 87 of the Constitution is repealed and replac d with –

“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 f particular
proceedings to come before the Court, on such terms as may be approved
by the King in Privy Council.”.

29 Schedule – Procedure for appointing a Prime Mini ster

The Constitution is amended by inserting the Schedule that is set out in the Schedule
to this Act.

30 Minor amendments

The provisions of the Constitution specified in column 1 of the following Table shall
be amended as specified in the adjacent column 2.


Column 1 Column 2
Clause 53 Change “Treasurer” to “Minister for Finance” in the

heading and the provision.
Clause 79 Change “the Privy Council” to “His Majesty”.
Clause 83 Repeal the final paragraph and replace it with –

“The members of the Privy Council shall sign their
names to the oath and read it in the presence of the King.
The ministers, the nobles and representatives of the
people shall sign their names to the oath and read it in
the presence of the Legislative Assembly.”.

Clause
88(1)

Repeal “Prime Minister with the consent of Cabinet i
the name and on behalf of His Majesty” and replace it
with “King in Privy Council”

Clauses 83
and 95

Repeal “King Taufa’ahau Tupou IV” and replace it wih
“King George Tupou V”






Passed in the Legislative Assembly this 20th day of July 2010.



SCHEDULE
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SCHEDULE

“Schedule

Procedure for Appointing a Prime Minister

(clause 50A)

(1) The Legislative Assembly shall recommend the appointment of a Prime
Minister as follows –

(a) within 10 days from the return of the writs of election after a
general election has taken place, the Interim Speaker ppointed
under subsection (8) of this Schedule shall invite all elected
representatives to submit to him their nominations for Prime
Minister Designate, to be duly seconded by 2 other el cted
representatives and to be received by the Interim Speaker within
14 days from the return of the writs of election; and no
representative who has proposed or seconded a candidate may
propose or second any other;

(b) within 3 days after the last date for receipt of n minations for
Prime Minister Designate, the Interim Speaker shall convene a
meeting of all the elected representatives of the people and of the
nobles for the purpose of deciding who they shall recommend for
appointment as Prime Minister Designate:

Provided that the failure of any representative to a tend any
meeting, for whatever reason, shall not affect the validity of
proceedings under this section;

(c) the representatives so convened shall consider who they want to
recommend for appointment as Prime Minister Designate, nd at
that meeting every representative present will have the right to
speak on his own behalf or that of another candidate, nd they
shall vote thereon by secret ballot and if one candidate receives
more than half of the votes, the Interim Speaker shall report to
the King that the duly elected representatives recommend the
appointment of that person as Prime Minister Designate;

(d) if no single candidate is elected under paragraph (c) then the
Interim Speaker shall 2 days after that meeting convene another
meeting at which the candidate(s) who received the least votes
shall be eliminated and the representatives shall (without
speeches) vote by secret ballot for their choice amongst the
remaining candidates, and if one candidate receives more than
half of the votes then the Interim Speaker shall repo t to the King
that the duly elected representatives recommend the appointment
of that person as Prime Minister Designate;

Act of Constitution of Tonga (Amendment) (No.2) Act
2010 SCHEDULE





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(e) if no single candidate is elected under paragrph (d) then the
Interim Speaker shall 2 days after that meeting convene another
meeting and the procedure under paragraph (d) shall be likewise
repeated, at 2 days intervals if necessary, until oe candidate
receives more than half of the votes cast; and the Interim Speaker
shall report to the King that the duly elected representatives
recommend the appointment of that person as Prime Minister
Designate.

(2) If the representatives fail to make a recommendation to the King in
accordance with the procedure in subsection (1) of this Schedule, the King
may extend any of the times specified and may authorise the Interim Speaker
to vary such procedure to enable a recommendation to be made.

(3) Upon receipt by the King from the Interim Speakr the recommendation of
the elected representatives under subsection (1) of this Schedule, the Lord
Chamberlain shall then summon the Prime Minister Designate to be appointed
by the King.

(4) The Prime Minister shall take his oath of office before the Legislative
Assembly at its first sitting.

(5) The Legislative Assembly shall also recommend the appointment of a Prime
Minister following a vote of no confidence, in the manner provided in clause
50B of this Constitution.

(6) In the event of any other vacancy occurring in the office of Prime Minister,
except following a vote of no confidence, the procedur specified in this
Schedule shall be followed to enable the King to appoint a Prime Minister on
the recommendation of the Legislative Assembly, butin such case the
Speaker shall perform the role of the Interim Speaker specified in this
Schedule.

(7) Any dispute arising out of or in connection with the calling or conduct of any
meeting under this Schedule or the election or recommendation of the Prime
Minister under this Schedule shall be determined by the Interim Speaker in
consultation with the King.

(8) For the purposes of this Schedule, the King shall within 7 days of the
declaration of the result of a general election, appoint a person who was not a
candidate at the general election to be the Interim Speaker of the Assembly,
and such person shall hold office as Interim Speaker until a Speaker is next
appointed under clause 61 of this Constitution.”.

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