Prominent candidates for the upcoming election have sued the Government of Tonga, the Attorney General of Tonga, and Tongasat over a transfer of funds made to Tongasat.
Long time MP ‘Akilisi Pohiva, and PSA President Mele ‘Amanaki, have reportedly lodged the civil suit in the Supreme Court.
Pohiva tells The Tonga Herald that the claim was lodged with the Supreme Courts last week. Tongasat and the Government have 28 days from filing to respond to the suit.
The (alleged) Facts
The Plaintiffs allege that Tongasat and the Chinese Electronics Systems Engineering Company (CESEC), a Chinese state-owned enterprise, entered into an agreement wherein CESEC would pay Tongasat US$25,450,000.00.
The payment pertains to a “Satellite Agreement” between Tongasat and CESEC. Chinasat, another Chinese state-owned enterprise, occupies Tonga’s 134˚ East and 138˚ East orbital slots (north of West Papua).
The payment was to be made through the Government of Tonga as the ‘middle-man’, via an “Agreement on Economic and Technical Cooperation” regime, wherein the government would extract US$6 million as a “goodwill gesture”, and transfer the balance to Tongasat.
Tonga received the funds from China in May, 2011. The plaintiffs do not know the precise date, or how, the funds were paid to Tongasat, however, they allege the payment was made around June, 2011.
Government was to clear all of Tongasat’s outstanding arrears, taxes, and liabilities, up to the date of the transaction.
In the statement of claim, the claimants do not dispute the agreement and payment between Tongasat and CESEC.
They also do not dispute the ‘middle-man’ role played by government in the transaction. In this case, the Tongan government became a ‘money-transfer agent’ between a foreign government and a private enterprise (and in this case, the most expensive money-transfer agent).
The claimants allow no variation to the definition of “grant”, citing Article I of the above “Agreement on Economic and Technical Cooperation”. According to the claim, the Agreement reads: “In accordance with the needs of the Government of the Kingdom of Tonga, the Government of the People’s Republic of China shall provide the Government of the Kingdom of Tonga with a grant aid of US$25,450,000.00…”
The claimants are therefore asking the courts to force Tongasat to pay back all the monies it received as per the agreement with the Government, and for the Government to keep the monies as public funds.
Fundamentally, the Tongan Government will have effectively seized an agreed payment between two parties.
The claim also therefore demands Government and Tongasat to publicly admit that the above transactions were illegal.
The claimants base their claim on the definitions of “public monies” in the Public Finance Management Act, and they consider the transaction as illegal expenditure of public funds, not a payment for the Agreement.
The Government and Tongasat are also demanded by the claimants to bear all the costs of the proceedings.
Public campaigning of the case
The lawsuit could be a decisive political manoeuvre during an election year. It distracts attention from problems besieging the claimants’ political parties and those parties’ internal power struggles.
Pohiva previously filed criminal charges regarding the same transactions in the Courts. The Magistrates Court denied that there was a case to answer, citing insufficient evidence. An appeal to the Supreme Court was denied on the same grounds.
New Zealand barrister Rodney Harrison has been recruited by the claimants as their lawyer in the litigation, with local agent Sione Etika (former Magistrate in the Tonga Courts), as local agent.
A fundraising campaign was initiated and made through the districts of Tongatapu to cover the New Zealand lawyer’s fees (NZ$50,000.00) and other costs.
So far, the amount gathered in the fundraiser has not been made public, nor how exactly it is to be spent, especially if the lawyers are to receive any more payments from the defendants.
Claimant ‘Amanaki has asked the public for their support and prayer in the endeavour.