The History of the Tongan Constitution
Monday, 14 July 2008 19:48

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 sovereignty.

Upon the death of his father, Tupouto’a, who was then ruler of Ha’apai in 1820, Taufa’ahau assumed the ruler-ship 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 support 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 became 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 preacher-ship 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 anything 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 spirituous 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 enthusiastic 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 suitable 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 pending 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 according 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 paid taxes, and who had not been guilty of any major crime such as treason, murder, theft, bribery, perjury, forgery and embezzlement 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 Sabbath, 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 provision 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.

Part 2

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 Legislative 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 purpose.

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 hereditary 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 fathoms 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 Commissioner 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 Constitution 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 succeeded 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 amendments 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 succeeded 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 Britain 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.

By Sione Latukefu, the brief history of the Constitution, written to celebrate its centenary, PMO website Bureau, 13 July 2008

 
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