Tonga King, council of advisers under scrutiny over gay chief justice

Questions have been raised in Tonga about how a gay judge was appointed to head the country's judiciary.

A group of Tongan legal professionals have launched a petition to King Tupou VI calling for the removal of Welshman Malcolm Bishop KC, who was in a relationship with another man for 50 years.

In the petition, the lawyers - members of Tonga’s Law Society - claim Bishop’s lifestyle conflicts with Tongan law.

Under the country's Criminal Offences Act, anyone “convicted of the crime of sodomy with another person or bestiality with any animal shall be liable at the discretion of the Court to be imprisoned for any period not exceeding 10 years".

The petition stated that Bishop's lifestyle would reflect his support of people living in a "sodomous relationship".

Chief Justice Malcolm Bishop KC takes his oath during his swearing-in ceremony in Nuku'alofa. Photo/PM Office

This is the key issue, Tongan media executive Kalafi Moala told Pacific Mornings’ William Terite.

Moala said the Privy Council had advised King Tupou VI on Bishop’s appointment.

“The King is authorised to make certain appointments in Tonga so that there is a balance in terms of check and balance in power without political influence,” Moala said.

“One of those appointments is the Chief Justice or the judges of the Supreme Court in Tonga. The King is authorised to appoint the attorney-general, police commissioner, and anti-corruption commissioner. Everything else in government, like the ministers, is appointed by the prime minister.

“And so this appointment of the Chief Justice is by His Majesty, King Tupou VI. But the King also has advisory committees. There is a judiciary panel that gives advice and brings in nominations of who should be appointed.

"There's also a Privy Council, which is a legal advisory committee that advises the King of who should be appointed in those roles. So that's where the issue is.”

Bishop, from Wales, took on the role after being sworn into office this month.

The petition has also raised questions about the criteria used in judicial appointments and the role of personal factors in assessing an individual’s suitability for such a top job.

As the debate rages on, Moala says the future of the Chief Justice position in Tonga remains uncertain.

The King is authorised to appoint the chief justice, attorney-general, police commissioner, and anti-corruption commissioner. Everything else in government, like the ministers, are appointed by the prime minister. Photo/Kanivatonga

“The blame right now is basically on the Privy Council because the council is the final advisory committee to the King for actions on different things,” Moala said.

“Now, interestingly, in the Privy Council, there is the president of the Methodist Church or the Free Wesleyan Church. The moral leader within the church.

“The other thing is the president of the Free Church of Tonga is also on the Privy Council. So, you look at the council and you see some very strong church leadership, people who are so-called committed Christians.

“And to allow or to advise the King to go on with his choice just seems to go against everything our society stands for.”

LGBTQI+ groups have condemned the petition, saying sodomy has only been used by Tonga’s courts in cases involving minors, not in consenting same-sex relations.

They argue that the petition is using Bishop’s appointment as an excuse to suggest that this law be used to prosecute consenting adults.

Moala says it's not just a legal issue.

“This seems to go against the very face of Tongan society who still strongly believe that marriage is between one woman and a man - and is strongly opposed to things like abortion, gay marriage, and so on.

“So it's not just a legal issue of the appointment, the opposition from Tongan society seems to go against that. The sentiment on the ground is kind of shock.

King Tupou VI and Prime Minister Hu’akavameiliku Siaosi Sovaleni.

“It may be okay in a country like New Zealand or Australia to have a gay judge. But in Tonga, it's not okay, not only legally, but also the sense of morality and sentiments from church groups in particular.”

This is not the first time that King Tupou VI has been embroiled in controversy.

The relationship between King Tupou VI and the government has not been ideal in recent years.

In February, the King sent a letter through his privy council, effectively signalling he had lost confidence in Prime Minister Hu’akavameiliku Siaosi Sovaleni, as Minister for His Majesty’s Armed Forces, and in Fekitaloa Katoa ‘Utoikamanu as Minister for Foreign Affairs and Tourism.

In March, following almost a month of political instability, the stalemate between Tonga’s King and the PM looked like it may have been resolved.

Sovaleni and a handful of ministers travelled to the Tongan outer island of Niua to perform a traditional apology known as Hulouifi. Only reserved for a King,

The King welcomed the PM and the ministers and took on a private one-on-one discussion.

Moala says a date is yet to be confirmed when a protest march will be held to officially hand over the petition to the King.

Both the Royal Palace and the Privy Council have been approached for comment.