The appointment of a gay Chief Justice is becoming the top talking point in the Kingdom of Tonga this week, and is projected to be for some time. The appointment which is made by the King in Privy Council is being opposed by some members of the Law Society including the President Lopeti Senituli. A growing number of people are also joining the opposition to this royal appointment.
Top of the concerns of the Law Society is that here is a man who is not only gay but his involvement with ‘fakasotoma’ (sodomy) as in the Tongan language, is a violation of the criminal laws of Tonga. Sodomy is prohibited by law in Tonga, as a criminal offense.
But Malcolm Leslie Bishop KC from Wales has not only been appointed but also sworn in last week, as the new Lord Chief Justice of Tonga. He is head of the third branch of power, the judiciary.
It has not been verified but the whisper on the corridors of government is that the job was not even open for bidding or application. “We understand Mr. Bishop was approached for the job,” said an insider source who did not want to be named.
No previous appointment by His Majesty has brought more critical questioning from the public than this one. The notion that the appointment may have been made by the judiciary panel or the Privy Council cannot be supported, because it is the Monarch who has to make the appointment to be legitimate. The ultimate responsibility for the appointment of the Lord Chief Justice is with His Majesty Tupou VI. He has the constitutional responsibility and authority to appoint Supreme Court judges.
He also appoints the Police Commissioner, the Anticorruption Commissioner, and the Attorney General. This the way the Kingdom of Tonga brings balance to power, in which these appointees of the King remains independent of the Executive branch of government, and thus of political influence.
In terms of the judges, and in this case the Lord Chief Justice, the judiciary panel which are made up of Lord Dalgety, Lord Tavake Afeaki, the Attorney General, and others do make recommendations to the king. But it is the King in Privy Council that makes the final decision on who would be appointed.
The Privy Council includes Lord Dalgety, Rev. Tevita Havea, Rev. Semisi Fonua, Dr. ‘Ana Taufe’ulungaki, Siosiua ‘Utoikamanu, and Lord Fielakepa.
There are people in both councils whose appointments to the council was based not only on their legal expertise but also on their assumed integrity based on their religious positions. The President of Tonga’s largest church, the Free Wesleyan Church, Rev. Dr. Tevita Havea is on the Privy Council. And so is the President of the Free Church of Tonga, Rev. Semisi Fonua. Both churches are in doctrine opposed to sodomy and to the gay advocacy.
Veteran educator Dr. ‘Ana Taufe’ulungaki is known for her outspoken Christian commitment, and she is one of the leaders of Christian University of the Pacific (CUP).
The King himself is a deeply religious and committed Christian who is essentially “the head” in the structure of the Free Wesleyan Church.
The key question therefore that is being asked is how a decision that spits in the face of a moral based law and Christianity pass through the hands of people who are proclaimed leaders of the Christian faith in Tonga?
As this goes to press, there is already a petition being passed around for signatures, calling on the King to revoke Chief Justice Bishop’s appointment. There is also a protest march being planned to present the petition to the Palace Office.
Senior Tongan lawyer Clive Edwards Snr in a local broadcast interview by Radio 87.5 alleged that advocates for LGBTQ+ rights, such as Mr Bishop, may be breaching Tonga’s laws prohibiting sodomy. He also raised concerns about Mr. Bishop’s ability to remain impartial in court cases involving sodomy over which he would preside.
In 2021, Tonga’s then Chief Justice, Mr Michael Whitten, sentenced an 18-year-old teenager to 42 months imprisonment after sodomising a 14-year-old boy.
But Tongans may have to ready themselves for major changes to take place in the kingdom. Not only is there an apparent shift in the status of social morality over the years but there is now a small minority that calls for the sodomy laws to be changed, to be no longer a criminal offense.
Living an openly gay lifestyle is not new to the kingdom. For decades, those who are regarded as homosexuals – “fakaleiti’s” or “fakatangata” – have been accepted within the Tongan socio-cultural framework even though with reluctance. In many cases, gay is being regarded as an illness or disability rather than a preferred choice of sexuality.
But what may have been looked at with scorn in early days, have not only been tolerated, but embraced into the culture, as “part of us” today. Churches overseas have even accepted gays into the clergy, and gay marriage in the Church even though still a controversy is no longer a “forbidden sin”. These changes have not reached the shores of the kingdom, not yet. Well, not until this appointment of the Lord Chief Justice. This issue is now right in our midst, and we have to deal with it. What has been accepted in some of the major churches overseas, has now been embraced into the very heart of Tonga’s governance structure, by appointing an openly gay man as the Lord Chief Justice.
