By Samisoni Pareti
Former PM seeks re-election in Vaitupu seat
Opposition against Tuvalu’s newly appointed Chief Justice is mounting with landowners of the nation’s capital taking to the streets last month to push their demands for his removal.
Australian lawyer Charles Sweeney was appointed by the Tuvalu Governor General at the beginning of this year to replace Sir Gordon Ward, who has been unable to travel to Tuvalu through Fiji due to a travel ban the Fiji regime slapped him with.
He was President of Fiji’s Court of Appeal until his resignation on December 2006 following the military coup that brought to power the then Fiji military commander Frank Bainimarama.
Last month’s peaceful protests by about 80 people of mostly men but with some women, young people and children was the second in recent months, all aimed at CJ Sweeney.
Protestors carried banners and placards telling the Australian jurist that he was no longer welcome to set foot again on Funafuti, the capital of Tuvalu.
Judge Sweeney was reportedly in Australia at the time.
Reports from Funafuti said Prime Minister Enele Sopoaga, a former client of Sweeney before his appointment as CJ attempted to stop the protest.
He went on national radio in the morning of the protest march to declare that the protestors should confine their protest within the four walls of their community hall.
He accused the protestors of being used by his political opponents and threatened to use members of the Tuvalu Police Force to stop the march.
However the protesters defied Sopoaga and walked on the main road of the capital, led by some elders and chiefs of Funafuti.
A casualty of the protest has been the by-election date for one parliamentary seat of Vaitupu Island.
Scheduled to be held on Tuesday, 6 December, PM Sopoaga has ruled that polling has now been deferred to 7 March, 2017. Questions however linger on whether Sopoaga could be guilty of contempt for deferring polling in Vaitupu in light of the clear instructions of CJ Sweeney in his judgement.
“The effect of the declaration made on 5 October 2016 is that a bye election must be held "as soon as practicable" under The Constitution s88.
"It is an immediate obligation" for the responsible minister to issue a notice of election and it is not permissible for the minister to await the occurrence of some other event or the resolution of future uncertainties.”
A former Prime Minister himself, Ielemia lost his parliamentary seat in October following Sweeney’s ruling.
Ielemia had won the appeal against his conviction by the Tuvalu Magistrates Court on abuse of office charges, but following a motion of PM Sopoaga, the Speaker of Parliament ruled that Ielemia was no longer qualified to continue to keep his seat. Tuvalu’s acting Attorney General consequently sought a judicial review of the Speaker’s ruling, which resulted in CJ’s endorsement of the Speaker’s action.
“When The Hon Apisai Ielemia commenced to serve his sentence on 6 May 2016, he became a person who was then disqualified from being elected as a member of Parliament,” wrote CJ Sweeney in his judgement.
“He therefore fell within s96(1)(f) as a person who at that moment “ceases to be qualified for, or becomes disqualified from election to Parliament under .. s95” and as a result of s95(1) his seat became vacant.
“This circumstance arose because The Hon Apisai Ielemia did not obtain an order staying his sentence of imprisonment until after he had commenced to serve it.
"The result would have been different if he had done so because he would not have triggered the second limb of s 95(1)(a) as he would not have commenced to serve his sentence.
“Because the issue of the status of The Hon Apisai Ielemia was important for the proper conduct of Parliament and because, if he had vacated his seat, a bye election would be necessary, I made declarations that his seat had been vacated on 6 May 2016 as a result of his having on that date commenced to serve a term of imprisonment.”
In an unprecedented ruling, Sweeney also used his judgement to criticise the role of Tuvalu’s acting AG in the case against Ielemia.
“The paramount role of the Attorney General is to act as the chief legal adviser to the government. That means she is, and must always hold herself ready and available to be, the chief legal adviser to the Cabinet.
"She should not, indeed may not, do anything antithetical to this paramount constitutional duty. Her ability to attend Parliament and to speak is subject to this overriding duty and for the purpose of furthering its discharge. So is her obligation, unless excused by the Prime Minister, to attend Cabinet meetings.
“As the legal adviser to the government, the Attorney General has all the usual duties of a legal adviser. She must maintain the confidence of her client. She must not act contrary to her client’s instructions. She must not herself, without the consent of her client, disclose upon what subjects she has advised or what was her advice.
"These remain the privilege of the client, to waive or not as the client chooses.
“The Attorney General may not adopt a position which makes it impossible for her to give her client confidential advice or which indicates to any person other than her client what her advice has been.
“In the present case, the evidence led in the Attorney General’s own case shows that the Attorney General gave unsolicited advice to the Speaker and disclosed that unsolicited advice to all members of Parliament. As a result, it became impossible for confidential advice on the same subject to be given to Cabinet.
“The same applies to the commencement of these proceedings. The Attorney General adopted a public position in which her advice to the Speaker was disclosed to the Court and to the parties. She became the plaintiff in proceedings which had every potential of being contrary to the interests or wishes of the government. It became impossible for her to represent the interests of the government or any minister in the proceedings.
“It is constitutionally of the highest importance that the Attorney General performs the role established by the Constitution for that office and only that role.
“The practice appears to have grown up of legal officers of the Attorney General’s office appearing against the interests of the government. In my opinion, this practice is constitutionally impermissible. No lawyer in the Attorney General’s office may do what the Attorney General herself may not constitutionally do and appearing against the government or in a manner contrary to its interests is high on the list of impermissible actions.
“It is important to understand that the Attorney General is not the enforcer of standards of the government or of Parliament. It is not for her to ensure that Parliament or the executive do the correct thing or even act according to her view of the law. That is the responsibility of the Prime Minister and his Cabinet and they are answerable to the electorate for their discharge of that responsibility. In the course of their discharge of it, they are entitled to have confidential access to the independent legal advice of the Attorney General, but executive authority and responsibility for its exercise remain firmly in the hands of the Cabinet and are not shared by the Attorney General. She is a professional adviser to government and not a political player. That is the distinction between the constitutional structure of Tuvalu and bodies politic where the Attorney General as a minister and an elected member of Parliament exercises executive power and is responsible to the electorate for his conduct and for that of the government.”