Human Rights & Democracy Movement

THE MONARCH

The position held by His Majesty, King Taufa’ahau Tupou IV, is a complex one. The various powers and responsibilities are collected together in one office called “Monarch” (or “Tu’i” in the Tongan version of the Constitution). Most of these are contained in the Constitution, but some of the more traditional attributes of status and chiefly responsibilities of the head of the highest and most respected Tongan lineage are unwritten. (They are part of the customary law of Tonga.) The Monarch combines traditional status with constitutional office.

In constitutional terms, the position of the Monarch combines the following office:-

• Head of State of the independent Kingdom of Tonga, recognised as such under international law.
• Head of the Executive branch of government (clause 30)
• Commander in Chief of the military forces (clause 36)
However, the pre-eminent status and powers of the Monarch are recognised in the Constitution in more emphatic ways.

1. It was the reigning Monarch who, in 1875, “granted” the Constitution to the people of Tonga.
2. The sovereignty of the Monarch is declared in terms of absolute authority (“Pule”) to govern Tonga and its people (clause 17, 31 and 41).
3. An important aspect of this authority is the monarch’s power over the Prime Minister and Ministers who are responsible to the Monarch for administering the government. The Monarch may appoint and dismiss at any time (clause 51).
4. All land is the property of the Monarch (clause 104); the Monarch alone may grant hereditary titles and estates (clause 44 and 104); and such estate will revert to the Monarch in the absence of an heir (clause 112).
5. The Constitution guarantees perpetual succession to the lineage of the Monarch (clause 32).
6. The reigning Monarch cannot be impeached (clause 41).
7. The Constitution which protects the Monarch cannot be changed without his consent (clauses 67 and 79).

In the course of making this analysis, I considered the possibility that the words used in the Constitution to describe the Monarch might sometimes refer to some other entity, such as the Government, the State or Kingdom. Although “Kingi” was used in the original 1875 Constitution in Tongan, the word has since been changed to “Tu’i”. Thus, the present English word “King” and the Tongan “Tu’i” appear in all the references I have made to the Monarch. From reading the Constitution, there is no reason for saying that any of the powers of the Monarch to which I have referred are intended to be exercised instead by the Government (Pule’anga), Privy Council (Fakataha Tokoni), Cabinet (Kapineti) or Parliament (Fale Alea).

There is also the question of the meaning of the words “Crown” and “Throne” in the few places where they are used (clauses 32-35 and 111); “kalauni” is used in the Tongan version. Here, the references are clearly to the royal lineage.

The discussion now turns to whether the unwritten constitutional law of Tonga imposes any limitations or restrictions on the Monarch which are not contained in the Constitution or statutes. Unwritten constitutional rules, called “conventions” are imposed on the British monarchy and former colonies (for example, Papua New Guinea and Solomon Islands), the conventions are sometimes written into the document.

If these conventions were applied to Tonga, they would mean that laws could be passed and government rules could be made without the consent of the Monarch. In other words, the other countries which recognise a monarch as a head of state do not allow the monarch to have a final say in the running of the country. In those countries, elected parliament has full and final control of law making and the governing cabinet of ministers is responsible solely to parliament.

The reality in Tonga is that the Constitution confers absolute powers on the Monarch who can choose whether to exercise them in person or to delegate them to others. The Monarch is not concerned with the details of the day-to-day government of the country, but the Monarch has the constitutional power to intervene at will.

THE EXECUTIVE

The Privy Council presided over by the Monarch constitutes the highest executive body. Members of the Privy Council are appointed by the Monarch and comprise the Ministers of the Cabinet, the two Governors and any other persons the Monarch sees fit to appoint (clauses 50). The Cabinet consists of the Prime Minister and such other Ministers as the Monarch appoints, who hold office during the Monarch’s pleasure (clause 51). By Privy Council decision, and increasingly pursuant to statute, Ministers are responsible for specified government ministries and departments, they are answerable in the Privy Council; and they are required to report annually to the Monarch and the Legislative Assembly. The Privy Council has certain legislative powers between meetings of the Legislative Assembly, when it may pass ordinances which take effect as law but must be laid before the next meeting of the Assembly for confirmation, amendment or rescission (clauses 50-55).

I am not aware precisely what formalities of consultation and delegation are generally observed as between the Monarch, Privy Council and Cabinet. The Monarch may seldom be called upon to rely on his residual powers.

Nevertheless, the reality of the constitutional provisions is that the Executive of Tonga, in the persons of the Prime Minister and Ministers, is responsible to the Monarch (clause 41) rather than to the Legislative Assembly. Although the Assembly may impeach Ministers for cause (clause 51), the Monarch may dismiss without reason.

THE PARLIAMENT

The Legislative Assembly is an essential part of the law-making process. Subject to the power of the Monarch to convoke or dissolve the Assembly at any time, its life is three years. It is composed of the members of the Privy Council (ten Ministers and two Governors), nine representatives of the nobles and nine representatives of the people. The Privy Councillors sit “as nobles” (clauses 38 and 56-83).

The Legislative Assembly possesses a range of powers in relation to its own proceedings and functions defined in the Constitution.

To sum up, the provisions of the Constitution reveal four realities in relation to the Legislative Assembly. First is the very limited representative character of the Assembly. Only nine members represent the great body of Tongan citizenry. Secondly, the Prime Minister and Ministers, although members of the Assembly, owe their primary responsibility to the Monarch.

Thirdly, despite the autonomy which the Assembly enjoys in the control of its own proceedings, it lacks full control over the law-making process. The Monarch’s assent is required, and the support of the Executive is essential to the law-making process in two further ways. The rules of the Assembly require that Bills be prepared and presented to the House by Ministers of the Cabinet. While there is provision for private members’ petitions to be lodged, debated and endorsed as recommendations or rejected by the Assembly, there is none for private members’ Bills. Then, although the practice is for the wishes of the majority of the Assembly to be respected, the Monarch retains ultimate authority through royal powers of dissolution (of the Assembly) and dismissal (of Ministers and Governors). The principal power of the Legislative Assembly in relaion to the Executive is that it may delay or decline to pass the appropriation Bills. Westminster

The fouth reality is the limitation on the powers of the Assembly to deal with certain areas of law such as those relating to the Monarch, the Royal Family and the titles and inheritances of the nobles (clause 67). While, in practice, the nobles have not insisted that people’s representatives be excluded from the voting process, the reality is that the legal status of the Monarch and nobles is protected against changes in the law if they wish to exercise their constitutional rights.

THE JUDICIARY

The judicial power of the Kingdom is vested in the Court of Appeal, Supreme Court, the Magistrates’ Courts and the Land Court, with limited appeal to the Tongan Privy Council (clauses 84-103).

As the “third branch” of government, the Judiciary may examine laws passed by the Legislature and Executive in order to ensure that the laws are in accordance with the Constitution as the supreme law (clause 82, as amended in 1990). The reality, however, is that the Constitution itself may be changed readily (as it has, on numerous occasions) only by an amending Act passed through the Assembly, accepted unanimously by the Privy Council and approved by the Monarch (clause 79).

All citizens have access to the courts which hear and decide matters in accordance with common procedures determination of hereditary estates and noble titles. In these cases appeal lies only to the Privy Council where, in effect, the Monarch presides over a special tribunal outside the judicial system.

AMENDMENTS TO THE CONSTITUTION

Unlike the great majority of written constitutions, theTongan Constitution is no more difficult to amend than an ordinary statute. On the face of it, there is some protection provided for amendments which would affect succession to the throne and the titles and hereditary estates of the nobles, as well as “the law of liberty” (referring to the “Declaration of Rights” with which the Constitution begins). Clause 79 provides that the Assembly is not permitted to amend the law affecting these matters. However, the likely intention of the framers of the Constitution was that the Monarch and nobles could waive the protection and, indeed, amendments affecting nobles’ estates have been made.

The reality here is that the case with which the Constitution may be amended is inconsistent with the importance attached to the document by those who have described the Constitution as the “bulwark of freedom”.

CONCLUSION

In conclusion, an examination of the Constitution of Tonga today reveals that it continues to provide the essential foundation and protection for the pre-eminence of the Monarchy. The interests of the nobles shelter under the same protection.

More importantly, perhaps, the powers of the Monarch overshadow the functioning of the Cabinet, and sometimes the Parliament.

The problem for those who wish to bringabout change in Tonga is that the Monarch has governed with a relatively benign and gentle hand. Now, it is a question as to how to protect the interests of the people against the possibility of a less enlightened and more interventionist ruler.

Any significant change towards a more democratic system of government would seem to require negotiation with the Monarch. Ultimately, a modified Constitution which gave greater representational rights to the people and made the Executive responsible to the Legislature could also provide some effective safeguards for the preservation of the legitimate interests of the royal lineage.

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