THE HISTORY OF THE TONGAN CONSTITUTION
(by Sione Latukefu)

In closing the Parliament on 4 November 1875, King George Tupou I gave this moving speech:

“Let this day, the 4th November, be a day of rejoicing and commemoration for the people of Tonga for ever”.

I am grateful to you, the representatives of this Parliament, because of your eagerness in the work to which you have been called to carry out. I am also thankful because of your glad acceptance of the constitution – because the majority of you agreed that it should become the Law of the Land. And you who have disagreed, let the day soon come when you will realise that the Constitution established by the Parliament is the greatest possession of our country …

And now, here is the Constitution of Tonga, written on parchment, to be kept in the Parliament of Tonga, a document to commemorate and to testify to the work that we are doing today. This day I have added my name to it and so it becomes the Law of Tonga. May you and your descendants, you the people of Tonga be blessed now and forever while you follow the Constitution. May the day never dawn for Tonga when someone, or anyone, will alter the basic principles of the Constitution. Let it become the Foundation stone of our country for ever … May each of you inscribe on your hearts:-

“Tonga for the Tongans”

The promulgation of the Constitution in 1875 was the culmination of the efforts by King George Tupou I to transform Tonga into a modern society, to maintain its independence by gaining the recognition by civilised and powerful nations, and to ensure its future internal stability and integrity, particularly after his death. King George was fully aware of the advantages of adopting western civilisation, its ideas, wealth, technology, form of government, legal system and religion, and partly through this Constitution, Tonga at the end of the 19th century remained the only Pacific island country to maintain her own independent sovereignity.

Upon the death of his father, Tupouto’a, who was then ruler of Ha’apai in 1820, Taufa’ahau assumed the rulership of Ha’apai. He accepted Christianity and the name King George just before his baptism in 1831. Two years later, he became ruler of Vava’u in 1833 and, with the enthusiastic suppport of the Methodist missionaries, and his own supporters from Ha’apai, Vava’u and Tongatapu, King George was able to put down the resistance to his rule from the Ha’a Havea chiefs in 1852, thus achieving the ultimate unification of the whole of Tonga into a Kingdom. A vitally important element of this process of unification was his introduction of the rule of law. With the help of the Methodist missionaries he began with the promulgation of the Vava’u Code of 1839 which was applied immediately to both Vava’u and Ha’apai, over which he was ruler, and later, over the whole of Tonga after 1845. In 1850, a much more comprehensive code of laws was promulgated, as the limitations of the Vava’u Code became increasingly apparent to the King and his chiefs.

After the last internal political struggles had been favourably resolved in 1852, King George began to focus his attention on the need to gain formal recognition of Tonga’s independent sovereignty by the major powers. He bacame convinced that the best way of achieving this was to provide stable and effective government by improving the country’s legal system. Towards the end of 1853, King George, at the instigation of the Methodist missionaries left Tonga on a visit to New South Wales in search of new ideas and broader experience. This visit had considerable impact on King George, but one of its significant outcomes was that it led to a series of letters between Mr. Charles St. Julian and King George in 1854 and 1855. St. Julian, who was a law reporter for the Sydney Morning Herald and also Hawaiian Consul in Sydney, suggested the following to King George: to establish a constitutional government: to improve the economy of Tonga and to take steps to secure formal recognition of his government by foreign powers to ensure that the kingdom would remain independent. The letters and a copy of the 1852 Constitution of Hawaii were translated for the King by one of the missionaries.

When he had received no positive response to his advice in the following two years, St Julian launched into a savage attack on King George and his government, which were published in the Sydney Morning Herald. He pointed out that “The Tongan laws … are administered by chiefs who divide among themselves, by way of remuneration … the fines and labour of those whom they convict”, and also he criticised the King’s “strongest disinclination to make such further improvements as would fit his state for the duties imposed on civilised governments and justify its admission within the pale of internationality:” He also argued that King George “must have an organised government, and an effective code of laws impartially administered … relieve the lower orders from the exactions of chiefdom … encourage industrial improvement … give up his local preachership and stand neutral between all sects and classes of his subjects”.

St Julian’s criticisms were valid, but he seemed not to have appreciated the practical problems peculiar to Tonga which inevitably influenced not only the kind and degree of change to be made, but also the appropriate timing for such action. The last civil war in Tonga had only been settled two years before his first letter was sent in 1854. The King knew better than anyone else the need for time to elapse for old wounds to heal before any major innovation could be successfully introduced. Both the King and his missionary advisers favoured more gradual development, but circumstances in the next four years forced him to adopt many of the measures suggested by St. Julian.

There was strong opposition from the French Roman Catholic missionaries who, naturally, were not in favour of a government led by a pro-British monarch (whom they regarded as a usurper) who, in addition, was the champion of the work of the Protestant, Methodist missionaries. The French priests were also less puritanical than their Methodist counterparts and strongly objected to laws forbidding certain traditional practices such as sport, dancing and tattooing which were Methodist inspired. They enlisted the enthusiastic support of the French Governor of Tahiti, at the time, and French naval officers who demanded the dismissal of the governor of Ha’apai for alleged discrimination against the French priests, and threatened to deport King George to New Caledonia if he failed to dismiss the Governor. These pressures led the King to conclude that there was now an urgent need to establish a government whose independence would be respected, and he resolved that it was an appropriate time for a new and comprehensive code of laws. Hence the promulgation of the 1862 Code.

The relationship between King George and the senior Methodist missionaries had reached a very low ebb in the latter half of the 1850s, mainly because of the missionaries’ conservative and paternalistic attitudes. However, he maintained good relationships with younger missionaries among whom was the Rev. Shirley Waldemar Baker. He had arrived in the country in 1860 and very soon established a firm friendship with King George. It was to him that King George turned for help in drafting the new code of laws. Baker later wrote that “…most of the new laws are the result of my conversations with the King. I wrote them and they were printed almost exactly. The 1862 Code made some fundamentally significant additions to the rule of law in Tonga. It specified for the first time that “… whatsoever things are written in these laws it shall not be lawful for the King to act contrary thereto, but to act according to them as well as his people” (Clause 1: Section 3). In response to the concern expressed by St. Julian and the missionaries, regarding the practice of paying judges with the fines and labour of those whom they convicted, the code stated that:

• The King shall pay from the state Treasury the salaries of the governors, Judges, Rulers and officers and shall pay them quarterly.

• Criminals shall work for, and pay fines to the State as they have done, and the money shall go to the Government (Clause XXXVI: Section 2 & 3).

The most revolutionary provision in this code was the Edict of Emancipation freeing all the people from the traditional absolute powers of the chiefs. This was the culmination of King George’s progressional legislation on this particular issue. In the Vava’u code of 1839, he legislated against the ancient custom of hunuki (making or tabooing for the chiefs things belonging to the commoners, especially for crops). In the 1850 Code he went much further with a more general prohibition on “taking anything forcibly, or on the score of relationship …” (clause XIII).

The 1862 Code declares that:
All chiefs and people are to all intents and purposes set at liberty from serfdom, and all vassalage, from the institution of this law: and it shall not be lawful for any chief or person to seize, or take by force, or beg authoritatively, in Tongan fashion, any thing from any one … Every one has the entire control over everything that is his. (Clause XXXIV: 2 & 3)

At the first anniversary of the Edict of Emancipation on June 4th 1863, the King said:
Thanks to the great God that I am alive today to see it a success. If I never accomplish anythig else. I am grateful I have been able to give to the Tongan people their freedom from slavery.

Reactions to the code from various sections of the community were mixed. Some missionaries praised it while others remained sceptical. The chiefs, as was to be expected, were unhappy with the abolition of their traditional privileges and absolute powers over their people, while the commoners were delighted, since the new laws brought opportunities for greater freedom and prosperity through the distribution of tax allotments and the abolition of the chiefs’ rights over their people’s property, time and labour.

Favourable reactions from England and Australia were quite heartening to the King, but the continuing opposition from the Roman Catholic priests and their followers and French supporters, and negative and often hostile reactions from local European settlers whose numbers were growing steadily since the late 1850s, in spite of King George’ non-alienation of land policy, caused the King considerable irritation. The settlers resented certain legal restrictions placed on their trading activities, in particular, the severe restrictions on the sale of spiritous liquor and fire arms, and the complete prohibition on the sale of land, making it impossible for them to secure freehold ownership of land. The provision in the code requiring “any foreigner wishing to dwell in this kingdom must obey the laws of the land, and be judged as the people of the land.” (Clause XXX) was particularly calling to them. They resented being governed by laws produced by what they regarded as a half-civilised King and his chiefs, and some of them openly defied the laws. At the same time, the growing international rivalry in the Pacific drove home to King George the urgent need for international recognition of his government if the independent sovereignty of Tonga was to be maintained. He was reminded of St. Julian’s advice that Tonga’s independence could only be assured through the establishment of a good and efficient government, and that it was essential that:

Such fundamental principles should be laid down as would form what is termed a Constitution and all subsequent legislation should be in strict accordance with these principles.

The 1862 code contained a number of provisions which were of a constitutional nature, particularly clauses I, III, and V which were concerned with the powers and duties of the King and his Assembly, the Judges and the Governors respectively; and II and XXXIV which dealt with Land and the Edict of Emancipation. These led certain observers to refer to the Code mistakenly as a Constitution. Evidently, King George became increasingly convinced that the 1862 Code did not go far enough and he determined that nothing short of a fully-fledged written Constitution would do.

Two years after the promulgation of the 1862 code the King decided to employ a European adviser, as recommended by St. Julian, for the affairs of modern government including the task of drawing up a Constitution were becoming increasingly complicated. He adopted as his son, an Englishman named David Jobson Moss, gave him the title Tupou Ha’apai, and, made him his secretary. Moss was extremely proud and enthusiatic about his new identity and position and gave the country eight years of service. However, his ability and common sense did not match his enthusiasm, and it became increasingly evident that the task of drawing up the Constitution could not be entrusted to him. It was to the Rev. Shirley W. Baker, who had returned to Tonga after a period of absence in Australia as Chairman of the Wesleyan mission in 1869, that this task was eventually entrusted. Baker’s former friendship with King George was renewed and strengthened as he gradually became the King’s personal adviser. After persuading the King to dismiss his Secretary, Moss, in 1872, Baker virtually took on this position as well. It was this time that King George confided in Baker his desire to have a constitution and requested his help in compiling it.

While in Sydney towards the end of 1872 and early 1873, Baker consulted St Julian’s successor as Hawaiian Consul-General, Mr Edward Reeve, and sought advice and assistance from the Premier of New South Wales, Sir Henry Parkes, who gave him a copy of all the laws of the government of New South Wales since its inception. These laws together with the copy of the 1852 constitution of Hawaii and the current laws of Tonga helped Baker to draw up a draft constitution for King George, who, as he had done with the earlier codes of laws, considered and altered it according to what he believed most suitalbe for his country. Between March and September 1875 Baker used the issues of the monthly Koe Boobooi, which he edited, to explain to the people the meaning of a Constitution. He compared it to the Bible which he said was:

The book which explains our spiritual freedom, the things we should and the things we should not … in particular the way in which the church should be governed, and what is to be done in the Church.

The Constitution, on the other hand, he argued, was:
The Book of freedom and the method by which the country is governed … the testament of our freedom to the people of the country, and a testament of how they should be ruled…

The draft constitution was presented to the next sitting of Parliament for discussion and approval, and at its pening on 16 September 1875 the King gave the following speech:

You are called upon to meet and deliberate on the new work to be done by the government, to pass the Constitution, and to govern the land and to have the law of the country in accordance with it. The form of our government is the days past was that my rule was absolute, and that my wish was law and that I chose who should belong to the Parliament and that I could please myself to create chiefs and alter titles. But that, it appears to me, was a sign of darkness and now a new era has come to Tonga – an era of light – it is my wish to grant a Constitution and to carry on my duties in accordance with it and those that come after me shall do the same and the Constitution shall be as a firm rock in Tonga for ever.

The full text of the Constitution was published in Tongan for the public as a supplement to the September issue of Koe Boobooi, and with minor amendments, the Parliament passed it on 4 November 1875.

The Constitution was a long document of 132 articles which were contained in three main sections: Declaration of Rights; Form of Government; and The Land.

DECLARATION OF RIGHTS

The Declaration of Rights consisted of 32 articles. It contained the usual safeguards, following very closely those of the Hawaiian Constitution of 1852. The first article asserted the right to freedom of person and possessions of “all people who reside or may reside in this kingdom”. The other articles guaranteed the liberty of every individual, the equality of all men- chiefs or commoners, Tongans or foreigners before the laws of the country; freedom of worship, and property was also guaranteed, and consequently they were expected to “assist and pay taxes to the government accordng to law”. The right to vote for a representative to the Legislative Assembly was given to anyone (native born or naturalised) who had reached 21 years and payed taxes, and who had not been guilty of any major crime such as treason, murder, theft, bribery, perjury, forgery and embezzelment or a like crime. Jury service was expected of everyone eligible to vote excepting members of the legislature, missionaries, teachers and government employees.

The continuing influence of the missionaries was evident in such sections as the provision concerning the Sabath, which was declared to be “sacred in Tonga forever,” (Clause 6). In the provisions controlling labour it was stated that the agreement and contract should be made the employer and the recruits and “be lodged in the Government Officers, stating the amount of payment they shall receive, the time they shall work for him, and promising to take them back to their own land”, and that the Government would see that this contract was carried out. It specifically excluded Chinese from being brought to Tonga, on the grounds that they might bring leprosy as existed in the Sandwich Islands, but there seems little doubt that this provisions was also heavily influenced by the anti-Chinese sentiments current in Australia at this time (Clause 3).

FORM OF GOVERNMENT

The second section, dealing with the form of Government, also followed the 1852 Hawaiian Constitution closely. It declared that the form of government was to be a constitutional monarchy and that the supreme power of the Kingdom was divided between the Executive, consisting of the King, Privy Council and the Cabinet, the Legislative Assembly; and the Judiciary.

The prerogatives of the King were clearly set forth and the rules of succession were laid down (Clause 35). The King was Commander-in-Chief of the army and navy, but he could not declare war without the consent of the Legislative Assembly. With the consent of the Privy Council, he had power to grant pardon to convicts except in cases of impeachment, and to convene the Legislative Assembly. If he were displeased with it, he could dissolve it and command new representatives to be chosen, but he could not lawfully dismiss any of the nobles of the Legislative Assembly except in cases of treason. He was entitled to make treaties with foreign nations, but again could do so only with the consent of the Legislative Assembly. He could also appoint ambassadors.

The person of the King was declared sacred. He governed the land, and all bills passed by the Legislative Assembly had to receive his signature before they become law. He had the prerogative of bestowing all titles of honour, but he could not lawfully take away any title except in cases of treason. With the advice of his Cabinet, he had the prerogative of deciding what money should be legal tender in the kingdom. Finally, he had power to proclaim martial law for any or all parts of the land during civil war or war between the kingdom and another country.

The next division after the King was the Privy Council which was composed of the Cabinet Ministers, the Governors and the Chief Justice. Its functions were to advise the King in his work and to serve as a final court of appeal. The King appointed the Governors to Ha’apai, Vava’u, Niuafo’ou and Niuatoputapu; while they were members of the Privy Council they were not eligible for membership of the Legislative Assembly.

Following the Privy Council was the Cabinet. It was composed of the Premier, the Treasurer, the Minister for Lands and Minister for Police. The ministers were appointed by the King “from the Nobles, or from the representatives of the people, or from persons outside, and if so they shall enter the Legislative Assembly”. (Clause 63:1). The duties of the Premier and of each of the ministers were all laid down. The Premier appointed town officers, took care of government roads, vessels and houses. He provided for the military and for the courts; supervised the work of the Registrars; appointed all Police Magistrates; had charge of the Great Seal of the government, and of all governmental activities not already under the province of other ministers. He also represented the government to other nations.

The duties of the Treasurer consisted of supervising the collection of duties, licences and taxes (as determined by the Legislative Assembly), receiving all revenues from the courts and land leases, and paying all government expenses. The Minister for Lands took care of all governmental premises, town sites and town road; supervise the position of houses in the town and decided the leasing of lands to foreigners (with the consent of the King and Privy Council). The Minister for Police was entrusted with the maintenance of peace and the prevention of all disturbances. He supervised the police and saw that the laws of the land were carried out. Each minister had to make an annual report on the work of his department which was forwarded to the King and the Legislative Assembly, and he was also answerable to the Assembly for any matters relating to his department.

The Legislative Assembly was composed of the ministers, nobles and the representatives of the people. The nobles consisted of twenty chiefs who were appointed for life by the King to the Legislative Assembly. The titles of the nobles of Tonga were to be hereditary among their lawful heirs. Nine nobles were appointed from Tongatapu, five from Ha’apai, four from Vava’u, one from Niuafo’ou and one from Niuatoputapu. The number of nobles in the Assembly could not be increased to more than twenty unless the representatives of the people petitioned for it.

There were twenty representatives of the people who were to be elected by ballot with the same regional distribution as the nobles. The elected members of the Legislative Assembly, like the nobles, had to be of sound mind and free of criminal records. They were elected for a period of five years by all male adults eligible for suffrage.

The King appointed the Speaker of the Legislative Assembly, which had full powers of legislation, subject to the Constitution, but the Acts required the King’s signature for validity, and bills vetoed could not be rediscussed in the same session. It had the power of impeachment, authority to determine the amount of taxes, duties and licences and the sole right to pass the estimates of Government expenditure.

The Legislative Assembly also had the power to discuss amendments to the Constitution, as long as the amendments did not interfere with the Declaration of Rights, the laws concerning foreigners, the succession to the throne, or the inheritances and titles of the nobles and chiefs of the land. Any amendment passed three times should be left until the following session, and if still approved and passed again three times (as long as it also received the King’s consent) should then become part of the Constitution.

The judicial power of the Kingdom was vested in the Supreme Court, the Circuit Court and the Police Courts. The Supreme Court consisted of the Chief Justice and two associated Justices. These Justices of the Supreme Court were to be appointed by the King with the consent of the Cabinet. They should hold their office on condition of good behaviour and subject to impeachment. Their salaries could not be reduced while they remained in office. It was their duty to arrange the procedures of the lower courts, and also to draw up the forms and rules for all the court’s business.

The King and the Legislative Assembly decided the number of Circuit Courts to be held in the Kingdom, and these were conducted by one of the Justices. All cases brought before the Supreme Court and the Circuit Courts should be tried by a jury of twelve. The King and the Legislative Assembly also had power to determine the number and frequency of Police Courts, and the Legislative Assembly and regulate the powers of the Police Magistrates.

Click Here for Part 2

Home | About Us | Media Releases | Articles | Forms & Brochures | Contact Information

Designed and Hosted by