By Melino Maka | Tonga Independent News
In every courtroom across the world, the statue of Lady Justice stands with a blindfold—not
because she refuses to see, but because she is meant to judge without bias or favour. But in
Tonga today, the question must be asked: is justice still blind, or has it been quietly led
astray?
This question is no longer abstract. It is at the heart of a disturbing pattern in the criminal
proceedings against former Cabinet Ministers ‘Etuate and ‘Akosita Lavulavu. A case that has
now dragged on for over 12 years, consumed millions of taxpayer dollars, rewritten parts of
Tonga’s Evidence Act, and now—in a move that should alarm any citizen concerned with
fairness—seen the Court of Appeal grant the Crown’s request to block the use of the voir
dire transcript in the current appeal.
This is not a small procedural quibble. It strikes at the core of how justice is done—and seen
to be done—in Tonga.
The Suppression of Transcripts: A Dangerous Precedent
The voir dire (a pre-trial hearing to determine whether certain evidence is admissible) ran for
ten months and resulted in a transcript spanning more than 2,000 pages. Yet the Appeal Court
ruled in May 2025 that these transcripts should not be admitted in the appeal hearing.
If the trial was conducted fairly, why suppress the record?
Across Commonwealth jurisdictions, it is standard practice for the full trial record to be
available on appeal, especially in cases concerning evidence admissibility, procedural
fairness, or constitutional rights. In New Zealand, Australia, and the UK, courts regard
the transcript as essential for understanding the factual and legal context of rulings. Tonga
should be no exception.
Without access to the record of what happened in the voir dire, how can an appellate court
assess whether the trial judge erred in law or misapplied evidentiary standards?
It is akin to judging a rugby match without the video replay.
Should This Case Be Civil, Not Criminal?
At the core of the Crown’s case is the allegation that the Lavulavus inflated student
numbers to receive government funding for their private institution. Even if this were
proven—which remains in dispute—the question must be asked: Is this truly criminal
fraud, or a matter for civil recovery?
In many other jurisdictions, cases involving overpayments, administrative errors, or
disputed entitlements involving government grants are dealt with through civil action, not
by invoking the full weight of the criminal justice system.
Is it fair that other schools—particularly those affiliated with churches—who may have
received even larger sums in similar circumstances were never investigated, let alone
charged?
Has the Crown pursued this case with equal vigor across the board—or singled out the
Lavulavus for reasons the public has a right to understand?
Civil litigation seeks recovery. Criminal prosecution seeks punishment. When the state
chooses the latter for a financial matter with no proven intent to defraud, it raises
serious questions about motive, proportionality, and fairness.
A Moving Target: Changing the Law Mid-Trial
Equally concerning is the timing of the April 2024 amendment to Tonga’s Evidence Act,
specifically the addition of Section 89(o), allowing hearsay evidence to be admitted in
certain circumstances. While legislatures have the power to amend laws, the application of
new criminal evidence rules to ongoing cases—especially those already before the
courts—is highly problematic.
This move appears not just opportunistic, but tailor-made to assist the prosecution in this
case. It comes after Justice Peti Langi ruled in the retrial that certain hearsay evidence was
inadmissible—only for Parliament to step in shortly after to rewrite the rulebook.
This is not how the rule of law is meant to function.
Constitutional Red Flags: Sections 11 & 20
Section 20 of Tonga’s Constitution prohibits the retrospective application of
criminal laws. This is a foundational protection, echoed in Article 15 of the
International Covenant on Civil and Political Rights, to which Tonga is a party.
Section 11 guarantees the right to a fair trial and the right of an accused to challenge
evidence presented against them. That right is hollowed out when key witnesses (in
this case, now deceased MOE officials) cannot be cross-examined, and their words
are introduced via hearsay instead.
Same Judges, Same Case—Different Day
The same panel of Court of Appeal judges has now ruled on this case multiple times—four
and counting. In any justice system that values independence and impartiality, this would
be unusual. Why haven’t fresh appellate judges been appointed to examine a case with such
high public interest and political sensitivity?
When the same judges review the same case repeatedly, it fosters the perception—not
necessarily the reality—of bias. And in justice, perception is everything.
A Trial Without an End – and Without Justice
Since 2013, this case has been allowed to meander through Tonga’s legal system with no
finality. Charges have changed. Allegations have shifted. Witnesses have died. Evidence has
been contested. But what remains is a trail of financial waste, public confusion, and eroded
confidence in the judiciary.
The government has reportedly spent over five million pa‘anga on this prosecution—and
yet, the case is still ongoing.
Is the pursuit of justice worth this cost? Or has it become a political crusade to secure a
conviction at all costs?
International Legal Standards Being Ignored
Let us not forget Tonga is a signatory to the Universal Declaration of Human Rights, which
affirms in Article 10 the right to a fair and public hearing by an independent and impartial
tribunal.
Additionally, the Latimer House Principles—adopted by Commonwealth nations—stress
that judicial independence must not be compromised by legislative or executive interference.
Retroactively changing laws to affect the outcome of one case is precisely the kind of
interference these principles were designed to prevent.
Conclusion: Is Justice Still Blind—or Just Blindfolded?
Justice in Tonga today appears to wear not the blindfold of impartiality, but a blindfold placed
there by political hands. When transcripts are suppressed, laws are changed to suit the
prosecution, and the same judges hear the same case again and again, we are not witnessing
justice—we are witnessing judicial theatre.
And when a matter that arguably should have been resolved in a civil court is instead
prosecuted criminally, it leaves the public wondering whether equal justice under the law
still exists—or whether the outcome has been predetermined from the start.
As citizens, we must ask: If this can happen to them, who will be next?
Melino Maka is a regular contributor to Tonga Independent News, with over three decades
of experience in public affairs, community engagement, and human rights.
