THE TONGAN CONSTITUTION:
SOME REALITIES
(by Dr Guy Powles)
It
is an honour to be invited to present a paper to
this Conference and I deeply regret that the necessity
for medical surgery in Melbourne will prevent me
from attending the Conference in person.
INTRODUCTION
When
I was asked to provide a critical analysis of the
Tongan Constitution, I realised that
my main
task would be to examine what the provisions
of the Constitution really mean. I should try
to analyse
the document within itself. I should not spend
a lot of time comparing the Tongan Constitution
with
other Constitutions – particulary, as other
speakers at the conference are likely to do that.
The
development of the original Tongan Constitution
of 1875 over the years to the present Constitution
as at November 1992 would also be a useful
topic for this Conference. As a student of the
Tongan
Constitution for many years, I would attempt
that – but
I have already written a short historical study,
which has now been published.
I
thought it would be helpful to begin by analysing
the present Constitution under six headings,
while at the same time suggesting some of
the realities
of its meaning.
The
headings are:- Statements of principle and fundamental
rights.
The
Monarch
The Executive
The Parliament
The Judiciary
Amendments to the Constitution
Then,
in conclusion, I would like to discuss briefly
the fundamental question of the
powers and responsibilities
of three Tongan institutions in relation
to each other – the institutions of the Monarch, the
Executive and the Parliament.
STATEMENTS
OF PRINCIPLE AND FUNDAMENTAL RIGHTS
The
Constitution of an independent state is a politico-legal “map” which
shows the main institutions of government together
with the laws defining them and the relationships
of the institutions one to the other. It also sets
out broad statements of principle which reflect
the goals and aspirations of the people, and which
can
be used to explain how the Constitution should
operate.
Broad
statements are of two types-
Clear
prescriptions of fundamental rights and freedoms
which can be endorced in the courts;
and statements
of general intention which are difficult to
enforce in the courts.
The
Tongan Constitution contains a mixture of enforceable
rights and general intentions.
Most
of the principles are in the Declaration of Rights
and most of these are specific
enough to
be enforceable, such as the prohibition
of slavery (clause
2), freedom of worship (clause 5), freedom
of speech (clause 7) and rights of fair
trial (clause
10-15).
These fundamental rights introduced in
Tonga over 100 years ago are today commonly found
in the Constitutions
of states.
However,
one fundamental right found in most written Constitutions
is missing from
Tonga – and that
is the right of every adult citizen to vote for elected
representatives in the Legislature. Perhaps an explanation
for omitting the right to vote in Tonga lies in another
statement of general intention, namely clause 4.
It is headed “Same law for all classes” and
refers to “…but one law for chiefs and
commoners, for non-Tongans and Tongans”.
The courts have found it difficult to
interpret this
clause, but they have not decided that
it means that chiefs and commoners are
equal under all laws. The
reality is that, while some laws such
as the criminal law treat all persons
the same, other laws relating
to political rights and land tenure makes
distinctions between classes. This means
that the Tongan Constitution
can and does, give a greater weight or
value to the vote of a noble citizen
than to the vote of a commoner
citizen.
Whether
or not Tongans believe that this inequality of
voting power suits their
needs today, this
Conference should note how far Tonga
is out-of-step with international
opinion. From my knowledge of the standards
set by the Trusteeship Council and
Decolonisation Committee of the United Nations
over
the past 40 years, I
can
say that, if Tonga had been a former
colony seeking
independence under UN supervision,
the world body would not have permitted Tonga
to become
independent
without a more representative electoral
system for the legislature.
Another
clause which does not mean what it seems to say
is clause I, called “Declaration of
freedom”, which says that “…all
men may use their lives and persons and time to acquire
and possess property…(etc)…as they will”.
The reality is that this broad statement
is overridden by other clauses in
the Constitution, by statute
law and by the everyday actions of
government to the point where the
clause is meaningless.
Clauses
30 declares that the Government of the Kingdom
is divided into three
Bodies – (1) the King,
Privy Council and Cabinet, (ii) the Legislative Assembly,
and (iii) the Judiciary – but the clause does
not itself guarantee the idea of the “separation
of powers: which is regarded as essential in states
which wish to ensure that the “rule of law” is
observed. In Tonga, it is left
to the courts to decide whether
to import this principle and, if
so, to what
extent it should be applied.
The
next clause, 31 appears to confirm the principle
that the
government
of Tonga is
to be constitutional “under
His Majesty, his heirs and successors:” While
this clause confers no specific
powers on the King, it is one
of several clauses (to be discussed
below)
which may be used by the courts
to interpret the Constitution
in a particular way. The clauses
seem
to confirm the reality that the
Constitution intends the King
to have real political and legal
powers
unaffected by the sort of unwritten
conventional conventions which
normally limit the powers of
the
Crown.
Click Here for Part 2
Home | About
Us | Media Releases | Articles | Forms & Brochures | Contact
Information
Designed and Hosted by
