Veikune v Kingdom of Tonga [2007] TOLC 6; LA 09 of 2007 (13 December 2007)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 9 of 2007 & CV 301 of 2007.

BETWEEN:

HON. VEIKUNE
Plaintiff

AND

THE KINGDOM OF TONGA
Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel: Mr. T. Tupou for the Plaintiff
Mr. Kefu for the Defendant

Date of Hearing: 30th October, 2007.
Date of Judgment: 13th December, 2007.

Judgment

[1] The plaintiff, the HON. VEIKUNE of KOLOMOTU'A, TONGATAPU was found guilty on the 25th January 2006 in the Supreme Court by a jury in Criminal case No.CR.90-91/05 on 2 counts of bribing a Government Officer and attempting to evade customs laws and he was subsequently fined $20,000. That is undisputed.
[2] The plaintiff was a Noble of the Realm holding hereditary estates in Tongatapu and VAVA'U. He claims that since the date of conviction, that is the 25th January 2006 the defendant, the Kingdom of Tonga, has wrongfully stopped paying him his emoluments as a Noble; has wrongfully stopped paying him all rent paid up on leases from his hereditary estates and has wrongfully purported to take away his Noble title and hereditary estates. He seeks orders that the defendant pay him all his emoluments due to him as a Noble from the 25th January 2006, with interest and likewise an order that the defendant pay to him all paid rent on leases from his hereditary estates from the 25th January 2006 together with interest.
[3] The-Plaintiff says that although his payments of emoluments and rents have been stopped since the 25th January 2007, he has not received any official notice to say that his noble title has been taken away from him and he questions whether in fact his title has been officially removed and says further that no successor has been appointed. He has however been deemed, under Clause 23 of the Constitution, to no longer be an elected representative of the Legislative Assembly of Tonga and has been removed as the Speaker. He is no longer the Noble's representative for VAVA'U.
[4] The issue in these proceedings is whether or not the plaintiff could lawfully be deprived of his title and his estates following his conviction for an indictable offence.

LOSS OR DEPRIVATION OF TITLE, HEREDITARY RIGHTS AND ESTATES FOLLOWING CONVICTION FOR AN INDICTABLE OFFENCE.

[5] This issue essentially concerns the interpretation and effect of CLAUSE 44 of the Constitution and S.37 of the Land Act.
The plaintiff's argument in its basic form is that a Noble's title could only be taken away by the King under Clause 44 of the Constitution when a Noble has been found guilty of treason. Insofar as S.37 of the Land Act provides for removal of title and of the estates following a Noble's conviction for an indictable offence, it is argued that that is inconsistent with Clause 44 of the Constitution and therefore as the Constitution is the supreme law, then S.37 of the Land Act is void insofar as it is inconsistent. That is by virtue of clause 82 of the Constitution.
Accordingly it is said, that a Noble can only lose his title and estates if he is found guilty of treason and then by act of the King exercising his prerogative powers under Clause 44 of the Constitution.
[6] I should say here that pursuant to Clause 71 of the Constitution any representative of the Nobles found guilty of conduct unbecoming his position may be deprived of his seat in the Legislative Assembly and if so his title and hereditary estates shall not be confiscated except for treason or sedition. Clause 71 empowers the nobles of the Legislative Assembly to deprive a noble of his title and hereditary estates for the offence of treason and sedition. The King's prerogative power to remove for treason is not an exclusive one.
The Plaintiff says that the King has the sole prerogative power to take away and terminate a noble's title by virtue of clause 44.
[7] By way of background the plaintiff was appointed to the noble title of Veikune on 11th May 1965 as the fourth holder of the title. The first holder of the title was SIOSATEKI TONGA VEIKUNE who was appointed by KING TUPOU II in 1903.
[8] There appears to be only one precedent where a similar situation to the present has occurred. In 1926 the Noble VE'EHALA was convicted of stealing £20 from the steamer TOFUA and he was sentenced to two years imprisonment. The then Clause 48 of the Constitution provided that a Noble could only be deprived of his title for the offence of treason. But the then NOBLES TITLES SUCCESSION ACT (LAW 11 of 1923) provided that any noble convicted of a felony should lose his title. It is reported that Queen Salote considered that once VE'EHALA was convicted by the Courts that she had no choice other than to deprive him of his title. That provision of the then NOBLES TITLES SUCCESSION ACT was adopted with the passing of the consolidated Land Act in 1927. [The above report is taken from "Queen Salote of Tonga" by Elizabeth WOOD-ELLEM].
[9] CLAUSE 44 of the CONSTITUTION is as follows:

• "Clause 44. It is the King's prerogative to give titles of honour and to confer honourable distinctions but it shall not be lawful for him to deprive anyone who has an hereditary title of his title such as chiefs of hereditary lands and nobles of the Legislative Assembly who possess hereditary lands except in cases of treason. And if anyone shall be tried and found guilty of treason the King shall appoint a member of that family to succeed to the name and inheritance of the guilty person.

[10] It is immediately clear that Clause 44 of the Constitution grants the King a personal royal prerogative to:

• "(a) .bestow "titles of honour and to confer honourable distinctions"; and (b) "deprive anyone who has an hereditary title of his title" only if that holder of the hereditary title is convicted of treason".

Clause 104 of the Constitution also grants a personal royal prerogative, in this case, to "grant to the nobles and titular chiefs or matapules one or more estates to become their hereditary estates."
[11] As stated in LALI MEDIA GROUP LTD V LAVAKA ATA [2003] TOSC 27 that:

• "when he first ruled Tonga, King Tupou 1 clearly had many absolute powers but, as I have mentioned in the earlier case, with the introduction of the Constitution of 1875, he ceded many of those powers and declared that he intended that his duties should be carried out in accordance with the Constitution. It can be seen that a number of prerogatives are set out in the Constitution...
• "The Modern position of the prerogative is that it is limited by the common law and the Monarch can claim no prerogative that the law does not allow. When the prerogative is defined by statute, as occurs in our Constitution, it is thereafter subject to that law.
• "It is difficult to find a clear definition of the prerogative...
• "Under the law in Tonga, I am satisfied any prerogative powers are defined in and governed by, statute. They fall into two distinct groups, those which are clearly stated to be the prerogative of the king alone which I shall call personal prerogatives and those which are executive acts of the crown (with or without the personal involvement of the King) exercised by the Privy Council, Cabinet or other government departments, which I shall refer to as executive prerogatives."

[12] Clause 44 of the Constitution created a royal prerogative to bestow titles of honour and to deprive anyone who had an hereditary title of his title only if that holder of the hereditary title is convicted of treason. That is a personal prerogative which can only be exercised by the King. Under Clause 44 the King may deprive anyone of their hereditary titles limited to situations where the hereditary title holder is convicted of treason.
The Plaintiff says that Clause 44 therefore means that the King has the sole prerogative to take away and terminate a noble's title (and a Noble therefore can only be removed for treason). But Clause 44 does not say that. To say that the King has a personal prerogative power to remove a noble for the offence of treason is not to say that a Noble can only ever be removed solely by the King alone and solely for an offence of treason and for no other reason: Clause 44 only defines the King's power to remove a Noble. I do not see that historically or by intention that the Constitution meant that the King's personal prerogative to remove for treason created an exclusive power or law to take away and terminate a noble's title even if all nobles are appointed by the King. It only defined the King's personal prerogative power to do so for an act of treason. It does not mean that a noble cannot be removed for some other reason apart from treason by operation of law.
[13]

• Clause 44 of the Constitution grants a personal Royal prerogative to the King.
• It can only be exercised by the King in his personal royal capacity.
• The King in the exercise of such a personal royal prerogative could only deprive the Plaintiff of his hereditary title if the plaintiff were convicted of treason:

[14] Such a personal royal prerogative is in contradistinction to S.37 of the Land Act. The Land Act is an Act of Parliament. It is a statute. It has nothing to do with any personal royal prerogative.
S.37 is as follows:

• "37. Any holder of any hereditary estate convicted of an indictable offence or certified by a medical officer to be insane or imbecile shall as from the date of such conviction or certificate cease to hold such title and the estate."

As stated, the original provision was enacted in the Land Act in 1927 and it seems that it was only amended once in 1988, when the word "felony" was changed to "indictable offence".
There is no dispute that the plaintiff committed an indictable offence (an offence triable only in the Supreme Court).
[15]

• S.37 as a law of the Tongan legislature is the law by which the plaintiff ceases to hold his title and his estate. That is, he loses those rights from the date of conviction.
• S.37 has nothing to do with the King's personal prerogative power to remove for treason (in Clause 44).
• The King does not deprive the hereditary title holder, by virtue of S.37 of the Land Act. The cessation of the right to hold the hereditary estate is by operation of law namely by the Land Act enacted by the Tongan legislature. S.37 does not involve the King or his prerogative power under Clause 44 of the Constitution.
• The plaintiff has lost his title and estate under S.37 of the Land Act and not by Clause 44 of the Constitution.
• There is no conflict between clause 44 of the Constitution and S.37 of the Land Act such that the Constitution should prevail making S.37 of the Land Act invalid or unconstitutional.
  

[16] I agree with the submission that:

• "In passing the Land Act in 1927, specifically S.37, the Tongan Legislative was of opinion that persons who hold hereditary titles and hereditary Nobles obviously hold position of respect, integrity and responsibility. It may have been thought that a conviction of treason is too light a criterion and that such an honourable position deserves much more heavier responsibilities — that is, any conviction at all in an indictable offence warrants deprivation of the title and estate as a matter of law".

To that I would add that the supreme importance of land in Tongan culture and the importance of hereditary title holders within the structure of the land system including the allocation of land may well have demanded that such persons be of unimpeachable character.
[17] The King's only involvement in all of this process comes after the deprivation of the title and of the estate and that is by virtue of S.78 of the Land Act.
That is, upon a conviction His Majesty shall cause the name of the lawful successor to the title of such holder to be published in the Gazette together with the date of his succession which shall be the day following the date of conviction.
[18] By operation of S.37 the plaintiff ceased to hold his title and his estates at the movement that he was convicted of the indictable offence for which he had been charged, that is, on the 25th January 2006.
[19] CONCLUSION:

[1] The Plaintiff has been deprived of the hereditary title of "VEIKUNE" and the hereditary estates assigned to the "VEIKUNE" title by operation of the law, namely S.37 at the Land Act.

[2] The Plaintiff ceased to hold his title and his estates on the 25th January 2006 when he was found guilty in the Supreme Court of having committed an indictable offence.

[3] There is no conflict between Clause 44 of the Constitution and S.37 of the Land Act. The Plaintiff has no claim to any emoluments as a Noble from the 25th January 2006 and no claim to any rent on leases from his former hereditary estates as from the 25th January 2006.

ORDER:

The Plaintiff's claim is dismissed.

Costs are awarded to the defendant as agreed or taxed.

DATED: 13 December 2007.
JUDGE