Tongan Lawyers Place Openly Gay Chief Justice Under Fire

A group of Tongan lawyers has petitioned King Tupou VI, who has ultimate authority over the chief justice appointment, to remove Bishop from his post. The petition, dated August 26, 2024, argues that Bishop’s “lifestyle conflicts with the law of Tonga,” citing Section 136 of Tonga’s Criminal Offences Act, which criminalizes sodomy.

Malcolm Bishop KC, is a 71-year-old Welsh barrister with over five decades of legal experience, appointed as the new Lord Chief Justice of Tonga, with the petitioners claiming that Bishop’s previous 51-year relationship with a British businessman, who passed away in 2019, is incompatible with Tongan law.

“It is wrong for him to come to Tonga as Lord Chief Justice and be seated in that position when his lifestyle conflicts with the Law of Tonga.”

Bishop’s appointment is for a fixed term of four years, commencing September 1, 2024. In his role as Lord Chief Justice, he will head the Tongan Supreme Court, oversee legally qualified magistrates, manage continuing professional development, and represent the kingdom at global legal conferences.

Legal Community’s Response

The petition has not received unanimous support from Tonga’s legal community. Lopeti Senituli, president of the Tonga Law Society, has stated that the petition “is not sanctioned by the Tonga Law Society executive council.” This dissociation suggests a divide within the legal profession regarding Bishop’s appointment.

Henry Aho, a lawyer and former president of Tonga’s Leitis Association, has pointed out that the sodomy law has historically only been applied in cases involving minors, not consenting adults. Aho suggests that the petition is using Bishop’s appointment “as an excuse to bring to the fore that this law exists and that it ought to be used to prosecute consenting adults also.”

Bishop’s Legal Background

Despite the controversy, Bishop brings a wealth of experience to his new role. With 56 years of experience as a barrister, including 31 years as a King’s Counsel (KC), he describes himself as an “all-rounder” who has “embraced all areas of law.”

TV personality and barrister Rob Rinder, well known in Britain for hosting reality TV court series like “Judge Rinder’, has previously named Bishop as his LGBTQ hero, noting that Bishop was “an out gay barrister” over 20 years ago, describing him as “somebody that I looked up to, who was quite literally modelling a life that I aspired to.”

1. He was a founder member of 30 Park Place chambers in Cardiff, the largest set in Wales. His practice areas included everything from administrative law to local government, mental health and family law matters. He is also a member of the Bar of the Turks and Caicos Islands, where he served as defense counsel in what he describes as the longest trial in Commonwealth history.

Gay Jurists

There have been relatively few openly gay jurists in the Commonwealth, although one of Australia’s most renowned judicial figures is Michael Kirby the former Chief Justice of Australia who has been openly gay since 1984, living with long-term partner Johan van Vloten (pictured above).

In the UK, former Master of the Rolls Sir Terence Etherton (now Baron Etherton) who married in a Reform Judaism wedding ceremony in 2014, saying that his appointment as Lord Justice of Appeal (in 2008)  showed his sexual identify was no hindrance to his elevation. “My appointment also shows that diversity in sexuality is not a bar to preferment up to the highest levels of the judiciary.”