THE LAND

The constitutional provisions concerning Land made it unlawful for anyone, whether he be King, Chief or Commoner, “to sell one part of a foot of the ground of the Kingdom of Tonga, but only to lease it in accordance with this Constitution”. All land in Tonga belonged to the Crown, and estates known as tofi’a were granted to the twenty nobles appointed by the King. The titles and the tofi’a were to be hereditary and the laws of inheritance for these were set out in the third section of the Constitution. The nobles were permitted to lease portions of their tofi’a to the people as ‘api’uta (bush allotment) for terms of 21, 50 or 99 years. The amount paid for these leases had to be determined by the Legislative Assembly. In cases of failure of payment the noble of the tofi’a concerned could reclaim the land for himself. Cabinet’s permission had to be obtained before any land could be leased to a European resident. It was stated that this clause “was not made to prevent the leasing of land to white residents, but to prevent any Chief acting foolishly in leasing the whole of his land to white residents, and driving the Tongans into the sea”.

All town sites and beach frontage in the Kingdom belonged to the Government, which was legally entitled to lease town allotments known as ‘api kolo to both Tongans and foreigners for a period of 21 years. The King’s premises at Nuku’alofa, Lifuka and Neiafu, and also Church premises (Wesleyan and Roman Catholic) were exceptions with leases for 99 years. It was illegal for anyone to lease any ‘api kolo greater than 5 acres or “to lease to any white resident or white residents in company any land in the interior (‘uta) upwards of 1000 acres added together. Any unclaimed lands or any tofi'a which failed to have legitimate heirs should revert to the Government, which had the right to lease such lands again.

Many of the provisions of this Constitution departed altogether from traditional precedents, for example in the laws of succession not only to the throne, but also to the hereditary titles of the whole country. Traditionally, hereditary succession to the Hau was not automatic, but was decided upon, by an “electoral college” from among several claimants. The selection of successors to the other chiefly titles had been left in the hand of the principal chiefs of the ha’a to which the title belonged. Usually they chose the most capable candidate, since this was essential at a time when the welfare of the whole community depended almost entirely on the wisdom and abilities of its paramount chief. However, there had been bitter rivalry among the various claimants which often resulted in open conflict and war between factions. No doubt King George was well aware of the threatening political storm hovering over the Kingdom, ready to burst immediately after his death. The law of succession was a way of forestalling any such disaster. Subsequent event proved the good sense of King George and his advisers in this matter, for Tonga was spared the factional warfare which raged for several years in neighbouring Samoa over this issue.

Another departure from the traditional Tongan system was the adoption of a Constitutional Monarchy, a departure both in its degree of centralisation and in the acceptance of limits to the King’s authority within the rule of law. Although the King’s power was still great (he could veto legislation and had the prerogative to appoint and dismiss Ministers of the Crown), he could no longer lawfully act on his own in matters of political importance without the approval of either the Cabinet, the Privy Council or the Legislatie Assembly. In comparison with pre-constitution days, these were drastic limitations of the King’s powers.

There was a vast difference in the composition and working of the new Legislative Assembly and its predecessor, the fakataha, which had been a council of chiefs meeting at irregular intervals since the 1850’s, depending on the King’s pleasure, in which the chiefs acted in a purely advisory capacity. There were several quite revolutionary features in the new Legislative Assembly. For instance, it included an equal number of chiefs and representatives of the people who, for the first time, joined the chiefs in discussing political matters. This was a remarkable innovation in a land where commoners had been regarded as mere tools and possessions of the chiefs.

It is paradoxical that the very Constitution which set out to limit the powers of the monarchy should have created a new landed aristocracy with increased powers. A certain number of chiefs were now to be chosen by the King and made the nobles of Tonga; they were given tracts of land to be their tofi’a or hereditary estates. The Constitution, in effect gave the nobles a form of indirect power over their people. The fact that the commoners received the lease of land from the nobles made them feel obliged to continue to give polopolo (first fruits of their crops), the best of anything produced or acquired, or their services to the nobles. Observance of these obligations was regarded as evidence of one’s loyalty and as a sign of good citizenship. Applications and would-be applicants for land had to be particularly generous with their gifts if they were to win favour with their landlord. Later when legal provisions were made allowing commoners to register their land, the noble would allot a piece of land for a trial period, the length of which depended upon his own personal whim. If he were satisfied with the applicants “behaviour” (particularly his generosity and servility) he would then permit him to register the land, but if he were displeased, he could take the land back and give it to someone else. The commoners’ tribute and subservience which openly acknowledged the superiority of the nobles, undermined the declaration in the Constitution that all men were to be equal in the eyes of the law and that everyone had a right to his life and property, principles which many chiefs viewed as a threat to their power and prestige. They naturally desired to see these acts of submission perpetuated in order to maintain their privileges.

From the present perspective, the creation of the landed nobility appears to have been a blunder, for it perpetuated some of the very problems it sought to eliminate. However, this move must be seen in relation to the time in which the Constitution was promulgated. It was an ingenious step to make some concessions to the chiefs in the face of their mounting resentment at their loss of power. It was also based upon the realisation that the Constitution could not succeed without the support of the powerful chiefs, particularly if King George’s immediate successor should prove to be a weaker ruler. The creation of the nobility helped to win the support and loyalty of the most powerful chiefs. Significantly, as the King stated in his closing speech to the 1875 Parliament which ratified the Constitution, the basis for selecting the nobles was not that of traditional rank but of the numerical strength of their supporters. Those with large numbers of people living under them were more likely to prove troublesome than those of higher rank, but without supporters.

The land section of the Constitution, particularly the prohibition on land sale and the provision making it unlawful for any noble to lease land to European settlers without the consent of Cabinet, has proved immeasurably beneficial to Tonga. Firstly, it ensured that a great proportion of the land remained in Tongan hands. Secondly, it helped to maintain the political independence of Tonga. The sale of land would have attracted a great many European settlers, and with a larger economic stake in the country, they could have applied more effective pressure on the great powers to annex Tonga as settlers in Fiji, Samoa and Hawaii did. Thirdly, it saved Tonga from racial problems which other islands, particularly Fiji have had to face. The virtual absence of European plantations in Tonga made it unnecessary to import labour from other places.

Inspired with new confidence now provided by the Constitution - the “Book of Freedom”- King George and his adviser, Baker, set about overcoming the final hurdle in the King’s determined struggle to establish and maintain Tonga’s independent sovereignty. They sought to acquire international recognition for Tonga, a condition which had been emphasised by St. Julian in his earlier letters to the King. For years both King George and his predecessor, Siosaia Aleamotu’a, had pleaded in vain for British protection, under which Tonga’s independent sovereignty would be maintained and recognised. Baker and the King saw the growing interest of Germany in the Pacific as a means of achieving their end. Soon after the granting of the Constitution, Baker negotiated a treaty between Tonga and Germany which was signed in the following year, 1876.

The King and his adviser saw this as a way of forcing the British to follow suit, and that was exactly what happened. The Treaty with Germany was ratified in 1877. It recognised Tonga’s independence and the King’s sovereignty while Germany was to have rights of trade and the use of Vava’u as a naval station, although the land was to remain Tongan. In the following year Britain negotiated a treaty with Tonga which was signed in 1879 and ratified in 1881. It allowed freedom of trade to British subjects and gave the British Consul the right to try British subjects in certain cases. Finally, a similar treaty was signed with the United States in 1888, granting trading rights to American citizens and providing a coaling station for American warships in any place not already given to another nation for such a prupose.

The treaty with Germany and particularly the Rev. Shirley Baker’s role in negotiating it, deeply disturbed the British, particularly officers of the Western Pacific High Commission and pressure was applied on the Wesleyan Mission Boards to have him recalled, which was done by the Mission Board in Sydney in 1879. He asked to be without appointment for a year to reside in Auckland, promising not to return to Tongan within that period. However, upon the unexpected death of the Crown Prince and Premier of Tonga, Tevita ‘Unga, who had gone to Auckland for medical treatment, Baker broke his promise and returned to Tonga taking ‘Unga’s body back on board a German warship. After ‘Unga’s funeral, King George appointed Baker Premier and, in addition, he also became Minister for Foreign Affairs and Minister for Lands.

The Constitution has been amended over the years and many clauses have been reworded in the interest of clarity, but in general, it has remained substantially the same as it was when it was promulgated in 1875. The first amendments were made during Baker’s premiership from 1880-1890; many of them being designed to help the King and Premier carry out policies which they believed to be urgently needed. Some of these changes entailed a severe modification of the original constitutional checks over the King’s powers as well as giving much greater authority to Baker, in his capacity as Premier, on whom the King had become increasingly dependent.

An amendment to Clause 55, gave the King additional right to appoint such persons as he saw fit to the Cabinet, and in Clause 82 the provision was deleted, which had required any constitutional amendments passed three times, to be re-presented in the next sitting of the Legislative Assembly, which was then held at two year intervals. This made it possible to amend the Constitution more speedily.

Other amendments were designed to promote agricultural production and trade. In 1880 the clauses dealing with the land system, 109 to 132, were replaced by a new set of Clauses, 109 to 121, Clauses 110 to 113 which had given the Government ownership of all town sites were dropped, and a new provision, Clause 119 perhaps the most important of all these amendments, declared:

All tax-lands shall be hereditary; and any one possessing a tax-land shall pay the sum of 2s per annum as rent to their hereditary Chief or His Majesty for such tax-land. And all taxpayers shall have town allotments, together with their inland tax-lands, and both will be protected by the Government.

This was the first time that commoners were given hereditrary rights to land. The clause aimed at providing security of tenure which would serve as an incentive not only for short term, but also for long term economic production through the planting of cash crops such as coconut and coffee trees. Following this amendment the Legislative Assembly passed the Hereditary Lands Act in October 1882. This law, according to the barrister Mr. Guy Powles, who was engaged in research on the laws of Tonga and Samoa, it “a statute of lasting significance in the history of Tonga”. It specified, among other things, the size of tax allotments which were to be 50 x 50 fathoms in hihifo and in Ha’apai (this was later increased to 100 x 100 fathoms) and 100 x 100 fathorms in the rest of Tonga and Vava’u. As noted above, they were to be hereditary and the widow retained a life interest, subject only to her re-marriage or if she were found guilty of fornication. Each person was entitled to hold only one tax allotment and one town allotment. The Government might request nobles to apportion tax lands to youths who had left school, and after lands had been apportioned to all his people any remaining could be leased to others.

Unfortunately, Baker had a rather strong streak of vindictiveness in his character. He never forgot what certain sections of the local European residents, his missionary colleagues and British officials had done to have him recalled from Tonga by the Wesleyan mission authorities, and he determined to use the almost unlimited power which he could wield, to crush his enemies. Many of the amendments to the Constitution between 1885 and 1888 were directed towards achieving this goal. Several of these amendments were inconsistent with the original Constitution, as were some of the laws and ordinances which were passed during Baker’s premiership. For instance, the Preservation of Peace Ordinance which was passed in December 1888, enabled the King in Council “to confine a person believed to be disaffected to the Crown and otherwise dangerous” to a particular locality for up to ten years. This amounted to punishment without trial and was in direct contravention of Clause 10 of the new Code of Laws drawn up by Basil Thompson in 1891, but the serious social unrest that these amendments had caused, and the defamatory charges he made against British officials, eventually led to his deportation in 1890. That Baker did much for Tonga cannot be denied, but his vindictiveness drove him to violate the very Constitution which he had helped to draft.

Baker’s fall and its aftermath forced the Tongan leaders to learn by painful experience, that the destiny of their country had been and would continue for at least three and a half decades, to be decided in the national capitals of the various main powers, with little reference either to them or to their much revered Constitution, and that they were powerless to do anything about it.

After Baker’s deportation, Tuku’aho, Tungi’s son and a direct descendant of the Tu’i Ha’atakalaua dynasty, was made Premier, and on the request of the leading chiefs, on behalf of the King, the British High Commissioner seconded one of his officials, Mr. (Later Sir) Basil Thompson, as a special advisor to the new Premier and his ministers. He arrived in Tonga in August 1890 and was made Deputy Premier. Basil Thompson had a very low opinion of the Tongan Constitution, but he quickly learned that he could do virtually nothing to change anything in it, for the King and his chiefs regarded it as a “holy writ”, and would have viewed any attempt to tamper with it as sacrilege. All he could do was to produce an English translation of it, which was “at least free from grammatical error”, claiming that the existing translation was an absolute disgrace. However, he found the Constitution very convenient in many respects. He had “only to point out that a proposal brought forward by the opposition would be a breach of the Constitution to crush them flat”, or by pointing to the constitutionality of some course of action he could ensure enthusiastic support for it, and when it was convenient, he ignored it altogether.

This practice of using the Constitution when it suited one’s purpose and ignoring it at other times was emulated by other British officials who had dealings with Tonga during at least the following two decades. Thomson also drew up a new Code of Laws for, according to his own account, he found Baker’s laws extremely confusing. He took the Indian code as his model and modified the laws to suit local conditions. In order to ensure payment of taxes he imposed the payment of poll tax as a condition for retaining a tax allotment, thereby converting the poll tax into a land tax. Failure to pay taxes for three successive years would result in loss of one’s holding. Thomson was very critical of the decision to create the landed nobility, and in order to deprive them of all power over their tenants, he made the Crown collect rents and then pay the money to the nobles, and he also retained for the Crown the right to grant allotments and evict tenants. After nine months of remarkably successful service in Tonga, Thomson left a financially, administratively and judicially sound government in the hands of his Tongan colleagues who continued to follow the policies he had laid down.

King George died in February 1893 aged ninety-six, thereby ending a remarkably long and eventful life that earned him the title of “Maker of Modern Tonga”. He was succeeded by his nineteen-year-old great-grandson, Taufa’ahau as King George Tupou II.

Tupou II’s reign was, unfortunately beset with a multiplicity of problems causing serious internal dissension particularly during the first decade and a half of his twenty-five year rule from 1893 to 1918. In 1902, for example, a group of young, educated chiefs petitioned the British High Commissioner to make the King rule according to the Constitution and the wishes of the chiefs. Things continued to be so bad that one of the most able chiefs wrote to the High Commisioner in 1904 suggesting among other matters that “If the Treaty made by Mr. Thomson in 1900 can be altered so that the consul might direct the government affairs it will be most beneficial to the people of Tonga”. In December 1904 the High Commissioner, Sir Everard im Thurn arrived in Tonga, met the leading chiefs and then conveyed the results of their meeting to the King who was given to understand that he must either rule according to the Constitituon or be deported to Fiji and have the country annexed. Under such compulsion the King reluctantly accepted the major changes to the administration of the government suggested by the chiefs and the High Commissioner.

On 18 January 1905 he signed a supplement to the 1900 Treaty which stipulated that the King was to rule with and through the chiefs and consult with and take advice from the British Agent and consul, who was to be consulted on major government appointments and change in existing ones and also in financial matters. The distribution of land as promised by the late King was to be carried out, and rents from government land were to be paid into the public accounts and no longer to be regarded as part of the King’s emolument. Another recommendation made by the High Commissioner, was to appoint a qualified lawyer to be Chief Justice. A former Auckland solicitor, R. L Skeen was then appointed Chief Justice in the same year. Five years later, in 1910, Skeen observed that “under an agreement between the King and His Excellency the High Commissioner in January 1905 we are ruled by the Treaty (of 1900) and that agreement which overrides the Law and Constitution”.

Although the Constitution was somehow overshadowed by the 1900 Treaty and its 1905 Supplement during Tupou II’s reign, it remained a significant guide to both sides especially in the administration of the internal affairs of the Kingdom, and British officials still appealed to it whenever it suited them. It was amended in 1912, 1914, 1916 and 1918.

The most important constitutional amendments were passed at a special session of Parliament in December 1914. These reforms provided for a smaller Legislative Assembly to sit annually instead of every third year, and for the election of nobles. The King held meetings with the nobles and representatives to explain the need to reduce the size of the Legislative Assembly, which then had 70 members for a population of 2,200, largely for economic reasons. The outbreak of World War I had brought an alarming decrease in government revenue, and the country could no longer support such a large Parliament. The major amendments among the 15 Clauses which had to be altered were Clause 62, that the Legislative Assembly should meet annually and Clause 63 was rewritten to provide a Legislative Assembly of three categories: Councillors and Ministers who by virtue of office should be members of the Assembly and “shall hold seats as nobles”: seven nobles elected from the nobles of the Kingdom as representatives of the nobles; and seven representatives of the people, elected by electors duly qualified. The privilege of the nobles alone to determine all laws in connection with the King, royal Family and Nobles which had already been amended in 1888 by removing the original Constitution’s requirement that the whole Legislative Assembly should vote on the matter first, became Clause 67 of the present Constitution.

0n 5 April 1918 King George Tupou II died and was succedded by his daughter who was crowned Queen Salote Tupou III in October that year. The improvement in the relationship between British officials and the Tongan government which began towards the end of Tupou II’s reign, was marked. The Queen’s commanding presence and radiant personality endeared her to everyone including the British officials. It was accompanied by increasing respect for the Tongan Constitution. During her long reign of forty-seven years from 1918 to 1965 there were several amendments to the Constitution, aimed at improving the welfare of the people, particularly the less privileged. She was concerned about discrimination against women in the legal system, and was determined to remedy it. In 1920 she brought before Parliament the question of legislating for women to inherit land from their fathers and in 1922 an Act was passed to that effect. In 1951, Clause 64 of the 1948 reprint of the Constitution was amended to give women the right to vote although they did not pay tax as their male counterparts did. However, they did not begin to vote until the 1958 election. Several minor amendmehnts included the reducing of the Supreme Court jury from twelve to seven members in 1933 and the removal of the Chief Justice from the Privy Council in 1944. In 1948 J. B. Thomson brought out a revised edition of the Laws of Tonga, including the Constitution but there were no substantial changes in it, the main alterations being renumbering. A further revised edition was prepared by Sir Campbell Wylie in 1967.

Queen Salote died on 16 December 1965, and was succeded by the Crown Prince, Tungi, who was crowned King Taufa’ahau Tupou IV on 4 July 1967. His legal training and wide experience in international relations greatly facilitated progress towards achieving full independence for Tonga. The 1900 Treaty with its 1905 Supplement which had been revised in 1958 and 1965 was again substantially revised in 1968 paving the way for full independence on 4 June 1970, this being the Emancipation Day of 1862. As the Treaty with Britian gradually lost its prominence in the affairs of Tonga, the Constitution increasingly regained its former place “as a firm rock in Tonga forever”. During the reign of the present Monarch there have been several amendments to the Constitution aimed at improving the administration of the laws of the country. In 1971 Clause 6 was amended to provide for a statute to particularise what may or may not be done on the Sabbath. In 1972 an amendment was made to Clause 10 to allow detention awaiting trail. Other amendments were also made in 1973 and 1974. In his speech at the opening of Parliament on 29 May 1975, His Majesty praised the Constitution for its role in the development of the country, and indicated the need for further amendments. Seventeen years ago, in November 1975, Tonga excitedly celebrated the centenary of its Constitution.

In the conclusion of the brief history of the Constitution, written to celebrate its centenary, I stated:

The Constitution has served Tonga well during the past hundred years… In celebrating its centenary Tonga remembers its founder King George Tupou I with gratitude and affection.

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, which was written one hundred years ago can continue to serve those ideals for which is 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… 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.

King George Tupou I prudently observed and clearly comprehended the complicated and critical problems surrounding his country both from with profound wisdom he anticipated future problems, and courageously prescribed remedies which were at that time bitter pills that were extremely difficult for the majority of chiefs in particular, who lost most of their traditional power and privileges, as well as those who were afraid of any change. Most importantly, he tried very successfully to convince his opponents, of the benefits that would result from his reforms in the long term.

It is my sincere hope that conferences like the present one, organised and carried out openly and peacefully, bringing people of good will together, to discuss the important issues under consideration, should not be regarded as any kind of subversive action designed to undermine or destroy our Constitution or our system of government. Rather, they should be seen as an attempt to emulate King George’s vision, to study the Constitution more closely than ever before in the light of the rapidly changing world order and the situation in Tonga in particular, anticipating future problems and seeing how the Constitution can be modified to prepare Tonga for the demands of the twenty-first century and beyond.

Only in this way can we ensure the preservation of our much revered Constitution in its essence, and the continuing peaceful development of our system of government for the benefit, not only of a few, but of the majority of our people, especially the poor and the needy. However, we need to be constantly reminded of one of the important lessons of history throughout the centuries, that those who are unwisely determined to hold back the wheel of change will be left behind, while those who try to rush it too quickly will overshoot their mark.

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

Designed and Hosted by