By Kalafi Moala
Nuku’alofa, Tonga – It sets a very dangerous precedent when Parliament unanimously passed (18-0) an amendment to the Constitution called Clause 89a, without public consultation. If this becomes law, judgments by Supreme Court judges must take full consideration of unwritten Tongan custom and tradition, thus allowing undefined Tongan customs and tradition to influence decisions in courts and tribunals, without application of the rules of evidence, this is something that could setback judicial decision making in a major way in the Courts.
The amendment Bill has now been legislated and awaits signature by the King to make it law.
It is also difficult for people to understand what is going on as there was no public consultation on this significantly questionable amendment. There was hardly robust debate in Parliament about it. Apparently, there were requests from some members of Parliament for a public consultation, but the House turned it down.
The key question is whether we are starting to amend our laws to become “laws by custom”? Or maybe the unanimous passing of the amendment in Parliament demonstrates that members themselves do not understand the implication of this legislative amendment. There is also the possibility that all the members adhere to a legal framework by which there will be an imposition of the “rule of custom” into the “rule of law”.
This is interesting but also quite revolutionary for the fact that after 145 years of the rule of law based on a written Constitution, there is now an amendment to include unwritten custom and tradition in judiciary decisions. The lack of definitions is quite alarming. What is customary and traditional? In fact, what is Tongan culture itself if it will come under consideration in judicial decisions?
Because it is “unwritten custom”, do we leave it to judges to define this amendment as to what it means, and how it is applied in certain cases? And because the customs and traditions referred to here are unwritten and constantly in flux, how does this work for foreign judges who may not be familiar or even knowledgeable about Tongan customs and traditions?
Clause 89 of the Constitution reads: “The judges shall have power to direct the form of indictments to control the procedure of the lower courts, and to make rules of procedure.”
The Amendment, which is Clause 89a – Application of Tongan Customs, reads: “Customs in Tonga comprises all reasonable and sufficiently certain customs, traditions, practices, values and usages of Tongans: and every Court or Tribunal in the Kingdom, where relevant, shall have regard thereto when deciding any matter before them for decision. Custom requires to be established in evidence but in so doing a Court or Tribunal shall not apply technical rules of evidence but shall admit and consider such information as is available. Tongan Customs shall not be lost by reason of lack of recent usage.”
Acting Minister of Justice, Vava’u 15 representative Hon. Samiu Vaipulu, tabled the Bill in Parliament on 7 September. He informed the House that the Bill is intended for Supreme Court Judges to take Tonga’s traditional culture into consideration when they are making their court decisions.
The Acting Justice Minister cited two examples of where this amendment may come in handy. In a case where the family of a perpetrator pleads forgiveness from a victim, and carries out customary process of asking for forgiveness, the judge needs to take this into consideration in giving his judgment.
And in a case where during an election campaign, a candidate provides food for helpers, it should not be interpreted as a means of coercing people to vote for the candidate. According to Mr. Vaipulu, feeding voters in his campaigns is a normal practice for him, and falls under the category of “cultural practice”, and not a form of bribery.
The Acting Minister stressed that the practice of giving gifts in certain situations is a traditional custom that should not be taken as bribery. This is one of the unwritten customs and traditions that Amendment 89a is aimed to uphold as judges make decisions.
This obviously will make it harder to charge a candidate with bribery, as it can be just regarded as traditional gift giving. The issue of overspending in the massive feeding of voters may also be no longer regarded as attempts at coercion during elections. And of-course there are many more examples of when a judicial decision based on law may need to be reissued with traditional custom and culture in mind.
There were members in Parliament who raised the question of what is traditional culture? Tongatapu 4 representative, Mateni Tapueluelu expressed concern that the amendment and the emphasis on cultural consideration may be a “hiding place” for those committing crimes.
Dr. Saia Piukala of Vava’u 14 raised the issue that if the Supreme Court judge makes a judgment over a land case, whether tradition inheritance can overrule the right of nobles’ land?
There is also the consideration of how “custom” and “tradition” affect women in a patriarchal society where certain customs and traditions favor male rights . Issues such land ownership and equality in the work place have been key issues for women who make up 50% of the voting population.
But reactions to the news of the Clause 89a amendment have been divided, especially among certain academics. Dr. Paula O Latu, Registrar at Sia’atoutai Theological College, who is a specialist historian, posted a comment on social media: “Thank you Parliament for legislating Tongan Customs as law and hope this applies to our ancestral wisdom and indigenous knowledge.”
He believes what has happened since the advent of Europeans has created a “double dynamics” in which, in the words of Professor Guy Powles: “When two social systems come into contact, as did the British and Tongan systems last century, two legal cultures interact.” (The Early Accommodation of Traditional and English Law in Tonga).
Dr. Latu refers to views expressed in the writings of Noel Rutherford and ‘Epeli Hau’ofa (as in Tonga Friendly Islands: A History of Tonga – 1977; and Remembrance of Pacific Pasts – 2000) which emphasizes the authenticity and relevance of traditional and customary wisdom in the life of Tongan Society. This is in line with what Hau’ofa refers to as the creative “golden past” of Tonga’s productive life as compared to what he regards as the mediocre outputs of today.
But a young fiery academic who lectures in anthropology at Auckland University of Technology (AUT), Dr. Teena Brown Pulu, wrote: “Get rid of the government, Tongan voters. The Prime Minister and his Cabinet are leading the country down a dangerously unstable path of mixing up acts of law with traditional culture.”
“Culture is not stagnant and fixed in one place in time. Traditions and customs change with every generation of Tongans to adapt to contemporary times,” she says. “Also, culture is not homogenous. There are multiple versions of Tongan traditions that different community’s practice, depending on who they are or where they are in Tonga or overseas. Culture is not law. Period. It should not be in the hands of Supreme and District Court judges to mess around with their perceptions of culture when making judgments, especially for criminal trials.”
Dr. Brown continues: “The government has lost its mind and bearings on what, exactly, the role of lawmakers is in the Legislative Assembly.”
These concerns as expressed by Dr. Teena Brown Pulu constitute key questions asked by many people: “Are we talking about the traditions of 200, 100, or 50 years ago?” How can we rely on the consideration of custom in decisions of law when we are not sure what the custom is, we are talking about, as custom and culture are always in flux?
The question remains, however, whether the King would sign this amendment into law or not?