Opinion: Voice of the people should have been heard in change to Tongan constitution: NZ referendum shows how it could have been done

Kaniva News Opinion

Tongans living in New Zealand have just voted on two highly controversial proposals in a national referendum that was held as part of the national elections.

Speaker Lord Fakafanua (R) and Parliament members of the nobility. Photo/Fale Alea ‘O Tonga

Whatever the outcome of the vote, the decision of the referendum will reflect the voice of the people.

And yet their cousins in the kingdom did not have a say when Parliament voted unanimously to pass Clause 89(a) amending the constitution.

The amendment to the constitution means judges will have to take into account custom, tradition and culture in their court rulings is a threat to the kingdom’s democracy.

It could have a major effect on society and appears to be wide open to abuse.

The move has been strongly criticised by the Tonga Law Society. President of the Law Society, Sione Fonua, said it should have been vetted by the public because people could use it to their own advantage.

The director of the Women and Children Crisis Centre, Ofakilevuka Guttenbeil-Likiliki, said she was deeply concerned that rape, sexual assault, domestic violence cases could be hijacked by so-called ‘traditions and practices.’

Unfortunately, all too often Tongan traditions serve elements of injustice, unfairness, prejudice and inequality.

The fahu system in which only the eldest daughter in the family is entitled to be honoured and received presentation of koloa (cultural goods such as fine mats), food and money, is unfair because her other young sisters did not receive such entitlements.

The same traditional restrictions apply to land ownership and family possessions. Only the eldest son is entitled to receive these after the death of their father. The nobles allow their people to live on their land, but most of the land remains registered under the noble’s names, not the people.

This means these people have to live in fear and keep their nobles happy by making sure they donate whenever the nobles want.

Are these the kinds of traditions the new amendment expects the courts to take into account when they are making decisions?

This is not just a question about the law, this is about Parliament with its noble-led government majority ignoring the views of the people, who pay their salaries. It is unacceptable and uncivilised.

The Tongan Law Society is right to argue that the amendment should have been put out to public consultation.

Readers will remember the enormous stink the then opposition kicked up over the Six Amendments the government of the late ‘Akilisi Pohiva wanted to push through to strengthen Tongan  democracy, demanding they go to the public for discussion.

The Six Amendments  were first submitted to the House by the Tu’ivakanoo’s noble-led government and debates in the House at the time showed the noble MPs supported it. However, most of those Noble MPs fought relentlessly to oppose the amendments when they were reinstated about a year later by the Late Pohiva government.

Now an amendment with the potential to undermine the functioning of justice has been kept from the public.

Consulting with the people would have given them more time to understand the details of the Bills before Parliament made a decision. Without it people could be left puzzled and confused by the new law. The people should have had a voice. They should have been heard.

Sadly, it seems the Noble-led government cares only for the benefit of a minority –  the nobles, the royals, their heralds and a few conservative commoners who support them.

Once upon a time the common people were called  the  kainanga e fonua ( food scraps of the nation).

When we see what potential there is for the law to be abused in the name of customs and traditions, we could be forgiven for thinking that some of the high born in the kingdom still regard commoners as lesser beings, inferiors whose voice should not be heard.

Voice of the people

If the constitution is to be changed or laws are to be passed that have a significant impact on society, then the public should be the ones to have the final say.

This is what happens in New Zealand and Australia.

In Australia the constitution can only be changed if a referendum is held. The change must be approved by a majority of voters across the Commonwealth and a majority of voters in a majority of states.

In New Zealand, counting of the referendum ballot began this week and people are waiting anxiously for the outcome.

Whatever the outcome, it will represent the  voice of the people. That is how it should always be in Tonga.


  1. The Constitution of Tonga was directly borrowed from the Hawaii Constitution by the then Prime Minister Shirley Baker also a Methodist Wesleyan missionary. The document was written entirely in the English language and raises the question as to how Tongans at the time who could not read English, understand, nor comprehend such an important document. The original Hawaii Constitution was Western (European) influenced and suited a system of monarchy and nobles (British feudal) but not for the traditional Polynesian chiefly ruling system such as that of Tu’i Tonga. So when some clauses got changed in Tonga to suit a few people but not the majority of Tongans problems arise, i.e. the change to a so-called ‘traditional’ justice for women is tricky because ‘forgiveness’ came with the Christian faith in the 19th century (nearly 200 years ago). In contrast, the traditional way of dealing with say a rapist would be left to the judgement of the victim’s brothers and the ha’a (clan). Punishment could range from banishment to death and it is why a closer look at pre-Christian Tonga reveals few crimes of this form existed. In hindsight, we ought to stick with the Western legal system for all offences committed if we want to be consistent and equal rights for all, especially for women. Tonga did not adopt the Samoan tradition of ifoga (the criminal begs for forgiveness).

    So, if Tonga starts to make changes to the Constitution then Parliament also needs to consider ‘traditional land ownership’ which was communal or ha’a ownership and definitely not by king and nobles (monarchy). Traditionally, the Tu’i Tonga at various occasions rewarded individuals and ha’a by giving land when a job was executed well; a tradition that encouraged honest, hard-working people to do good in society. There was no hereditary inheritance and definitely no nepotism.

  2. Passing waste in a small house is natural but frolicking and playing with it is not; it apparently seems normal otherwise to certain so called classes of society. Only in Tonga


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