Human Rights & Democracy Movement

APPENDIX – II

BACKGROUND PAPER

Title: Convention on the Tongan Constitution and Democracy
Theme: Towards a Model Society
Objectives: 1. To speed up the rate of progress towards a truly democratic government in Tonga.
2. To explore possible forms of democracy that may be applicable to Tonga
3. To make recommendations regarding the procedures that may be taken towards attaining a democratic government.
4. To record and publish the proceedings of the Convention.

Venue: Basillica of St. Anthony Padua
Date: November 24-27 199
Background:
The crucial issue which should now be seriously considered by every Tongan, especially the leaders of the country, is the question of whether this document (the Constitution), which was written more than one hundred years ago can continue to serve those lofty ideals for which it was intended …

The Constitution was designed to safeguard the welfare of the country in perpetuity, but many of its provisions were concerned with the specific needs of their day. Some of these needs have changed over the years as Tonga has become modernised. His Majesty has himself pointed out that land and parliamentary representation are two matters requiring reform. These are difficult issues and there may well be others, examination of which is outside the scope of this brief history.

Those who love Tonga, however, and desire to see the Constitution in its essence preserved, should not shrink from facing them calmly and courageously while time is on our side. Dr Sione Latukefu, The Tongan Constitution. A brief History to Celebrate its Centenary, Nuku’alofa, 1975, p88, 89

Tonga lies just west of the International Dateline, between the longitudes 173 and 177 west and latitudes 15 and 23 south. There are four main island groups namely Tongatapu, Ha’apai, Vava’u and smaller Niuas. The Niuas lie 600 km to the north of the main island Tongatapu in which the capital Nuku’alofa is situated.

The total land area is only 747.34 km but its 170 islands are spread over an ocean area of 362,600 sq km. Only 36 islands are inhabited by a population of just under 100,000. Most of the islands are of raised coral while a few, to the west, are of volcanic origin. The soils are amongst the most fertile in the Pacific.

The founder of modern Tonga, King George Tupou I, with the assistance of Wesleyan missionaries introduced a series of codified laws last century which culminated in the promulgation of the Constitution, one of the oldest in the world, in November 1875. Guaranteeing life, property and religion and outlining the form of government, it also embodied the land tenure system which is still in force. Under this system all land belongs to the Crown who then grants estates to the nobles. On the other hand, every Tongan male attaining the age of 16 is entitled to apply for a bush allotment of 3.3 hectares and a town allotment of 0.16 hectares. The shortage of available land, however, has made it difficult to honour this land entitlement in recent years, which in turn has caused unemployment and encouraged migration.

The pressure for change is building up in the last of the Polynesian Kingdoms. Tonga is politically stable and conservative. The society was and is still based on the three pillars of kinship, land and monarchy. The monarchy is deeply embedded in the country’s social fabric and shows a royal lineage that goes back a thousand years. Yet the powers of this monarch even though constitutional, are judged by many to be the most extensive in the world of today exerting an almost feudal control over every aspect of Tongan life.

By all standards the Tongan Monarch has far reaching powers. The structure of government, consisting of the King, Privy Council, Legislative Assembly and the Judiciary is such that change if undesired by the Crown is virtually impossible.

A close look at the political structure will show that although the Westminster model was used in the drafting of the 1973 Constitution, the Tongan experience over the last 150 years was derived essentially from the ordering of Tongan society as seen in the formation and preservation of key institutions.

As Dr Guy Powles, who has done a series of studies on the Tongan Constitution, has pointed out, the ordering of Tongan society involved the adoption of compatible concepts selected from two legal cultures: the authoritative elements of Tongan chiefly law, and the command theory of English jusrisprudence and the Christian notion of individual responsibility. However, certain important characteristics of the English legal system such as the equitable checks on power, and the right of participation in decision-making are missing from the legal framework adopted for the Kingdom.

It is said that acceptance of centralised authority distinguishes Tonga from other Pacific states: virtually all government decisions are made by Cabinet, for example, including such details as approval of the use of a vehicle that is longer than the legal length, on public roads.

The growing discontent with the present system derives mainly from the fact that it is undemocratic; it is virtually impossible for example to achieve change through a democratic process. The Legislative Assembly is unicameral with 30 members which are divided into three distinct groups. The largest group has 12 members who are all appointed by the King and includes the Prime Minister, 9 other Ministers and the Governors of Ha’apai and Vava’u. Approximately half of them are nobles some of whom are the Kings own relatives including his eldest son. They hold office at the King’s pleasure. The second group of 9 members are elected by and are among the 33 hereditary nobles. These noble titles are conferred by the King, are inalienable and are all associated with estates. The combined force of these two groups leaves little room for manoeuver by the other 9 members, the Representatives of the People. These are elected by the commoners every three years through universal suffrage.

Although the Assembly is unicameral in appearance the interests of royal lineage, titled and landed gentry are not determined by Parliament but by the nobles alone, and ultimately by the King himself. Ministers enter Parliament as nobles.

Tonga is commonly referred to as a constitutional monarchy but this is a misnomer, Tupou I in fact created a Constitution under a monarchy. The constitutional pre-eminence of the sovereign arises from the fact that the authority which granted the Constitution has secured perpetual succession, and is immune from impeachment under a charter which cannot be changed without his consent. The King may of course act unilaterally and is not bound by convention to act on the advice of the Ministers in respect of the following powers:

a. To appoint and dismiss Ministers including the Prime Minister
b. To summon and dissolve the Assembly at any time and to appoint its Speaker
c. To refuse to assent to any law
d. To appoint nobles and grant estates
e. To suspend habeas corpus, proclaim martial law, make treaties and command the forces, and
f. To control the marriages of the royal family

The Privy Council (King and Cabinet) is the effective decision-making body with power to make ordinances (having force until the next Assembly) and is also the highest court in civil cases relating to noble titles and hereditary estates. Since His Majesty confers all noble titles any appeal to the King-in-Council effectively makes him a judge in his own cause.

The Constitution ensured that the 33 nobles remain forever subordinate to the Monarch while at the same time entrenching their powers, as hereditary title holders, to control Parliament and together with six estate-holding matapule (chiefs), control most of the land as well.

The Declaration of Rights which is so wonderfully enshrined in the Constitution is not accompanied by a stated means of enforcement. Clause 4 decalres that “there shall be but one law in Tonga for chiefs and commoners, for Europeans and Tongans ….” But at the same time the Constitution recognized three levels of privilege namely the King, nobles and estate-holding chiefs and their respective families.

The position of the last two groups are further entrenched in the three areas of land tenure, executive action and parliamentary process.

Although a 16 years old youth is entitled to land, he must obtain the estate holder’s consent before his application for a plot of land can be considered by the Minister of Lands. It is this provision that still keeps the nobles as lords over those who live on their estates.

The absence of any mechanism for people’s participation in the decision-making process further adds to the frustration of the common people. A case of taxation without proper and real representation. However, the Tongan complementary concepts of authority and acceptance further aggravates the problem. Other than the right to petition the King and Parliament and their representation by elected members, the commoners have no other means of voicing their concerns. Even civil servants who have been treated unfairly by Cabinet have no other body to appeal to (besides the judiciary) but Cabinet itself. There are no trade unions either so the workers are at the mercy of their employers, and again they only have the courts to fall back on. In spite of calls by the People’s Representatives for the appointment of an ombudsman the Government has not taken any action on the matter.

The overall effect is that Tonga has a class system in which the interests of the elite take precedence over those of the bulk of the population. The explanation given by those who support the statues quo is that Tonga has survived because it has had the same system for over a thousand years. They forget that it is the moral ambiguity of traditions and the culture which hinders progress. Under the guise of respect for traditions and the culture, those who benefit from the system turn a blind eye to corruption, nepotism, selfishness and favouritism.

The government has no vision for the future other than the preservation of the present “stable” political system as “disturbances could easily upset the pace of economic development,” as declared in the 1991-1995 Development Plan.

The deep longing of the human soul for liberty and justice must form a new vision for Tonga a vision of a new society which is democratic, secure, just, peaceful, caring and environment friendly. Such a vision must be subjected to public scrutiny hence the need for the proposed Convention. Only by public debate discussions and persuasion will it be possible to explore fully all the relevant aspects of democratic rule.

Based on the works of Dr Sione Latukefu )The Tongan Constitution: A brief history to celebrate its Centenary, Nuku’aofa, 1975), Dr Guy Powles Jr (Ms on the Accommodation of Traditional and English Law in Tonga, Canberra, 1987) and Roger de Backer (Courier ACP-EC September – October 1991).

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