11
At the opening of the Parliament of 1875 at which the constitution was discussed and passed, the King gave an admirable and moving speech. He outlined the position of the country, its foreign relations, and the laws he had recommended to Parliament and referred to the draft constitution:
In contrast to the more common process of constitutional development in modern states, where guarantees of constitutional liberty have usually been wrested from the rulers by popular demand, the King’s speech indicates that in this case the constitution was bestowed upon the people by their monarch. In Tonga there had never been any formal or even informal demands for a constitution from the rank and file of the people. Watkin reported that, as far as he could learn, the feelings of the chiefs and people were against the constitution.1 Yet the King granted it. Earlier Watkin had written, ‘sufficient time was not allowed to discuss the Constitution; the complaint of the chiefs is that they were not allowed to say what they wished—but were told to take what had been prepared for them, and be thankful’ (J.B. Watkin to General Secretary, 12 Jan. 1876, Watkin 1855-79).
Evidently the constitution was a major innovation on the King’s part, and the principal motives which actuated him to make such a move were clear: to maintain Tonga’s independence by gaining recognition for it from the great powers; and to ensure its future internal stability and integrity, particularly after his death. However, this memorable document ought not to be viewed in isolation, for it marked the culmination of several progressive attempts by King George to achieve acceptable, Christian, civilised legislation for his country.
The first simple written Code of Laws in Tonga, the Vava’u Code of 1839, contained some constitutional measures. Although it did not end the rule of the chiefs, it put a stop to their arbitrary powers over their subjects and it established the rule of law. Judges were appointed and foreigners were expected to respect the laws. It also ensured the supremacy of the power of the King.
The more comprehensive Code of Laws of 1850 contained more constitutional measures. It laid down a comparatively more elaborate system of government and consolidated the King’s position. It clearly and definitely expressed the supremacy of his rule (Clauses I and II). It limited the power of the chiefs (Clause V), defined the position of the judges (Clause III) and dealt briefly with land tenure (Clause XXIX). In Clause XIII individual ownership of property was also touched upon where it was made an offence to take anything forcibly without the owner’s consent.
The 1862 Code contained further comprehensive constitutional measures, important new provisions with regard to the power of the King which subjected him to the rule of law (Clause 1:3). The introduction of this measure by the King indicates the secure position he had achieved and was a triumph for the rule of law. The whole country now accepted his kingship, admired his abilities and leadership, and he had won the respect, loyalty and love of all his people, including those who disagreed with some of his views. In the minds of his subjects, the King’s will and the laws of the country were identical, and to obey the laws was to obey the will of their beloved sovereign.
Perhaps the most revolutionary constitutional measures introduced in the 1862 Code were the emancipation of the common people from serfdom, and the setting up of a state revenue out of which the remuneration of government officials was to be paid (Clause XXXIV). There was also a provision dealing with the allotment of farm lands to the people (Clause XXXIV:6 and 7).
The constitutional measures contained in the legislation discussed so far were largely incidental. The primary task confronting the legislators up to this stage was the formulation of laws. It was not until 1875 that a planned constitution was drawn up and promulgated. This constitution was a long document of 132 articles which were contained in three main divisions: Declaration of Rights; Form of Government; and The Lands.
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, freedom of speech, and freedom of the press. The people’s right to expect the government to protect their life, liberty 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 the 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 any government employees (see Appendix D, Clause 30).
The continuing influence of the missionaries was evident in such sections as the provision concerning the Sabbath which declared it to be ‘sacred in Tonga for ever’ (Clause 6).
In the provisions controlling the labour traffic it was stated that the agreement and contract should be made between the employer and the recruits and ‘be lodged in the Government Offices, 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 any Chinese from being brought to Tonga, on the grounds that they might bring leprosy as ‘exists in the Sandwich Islands’, but there seems little doubt that this provision was heavily influenced by the anti-Chinese sentiments current in Australia and elsewhere at this time (Clause 3).
The second section dealing with the Form of Government also closely followed the Hawaiian Constitution of 1852. 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 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, and he could appoint ambassadors.
The person of the King was declared sacred. He governed the land, and all laws passed by the Legislative Assembly had to receive his signature before they became law. He had the prerogative of bestowing all titles of honour, but he could not law-fully take away any title except in cases of treason. With the advice of his cabinet, he had the prerogative of arranging what money should be legal tender in the kingdom. Finally, he had power to proclaim martial law for any part of the land, or for the whole 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.
Following the Privy Council was the Cabinet. It was composed of the Premier, Treasurer, Minister for Lands and the 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 (Clause 55).
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, and there were twenty representatives of the people who were to be elected by the people.
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.
The King and the Legislative Assembly decided the number of Circuit Courts to be held in the kingdom, and these were held by one of the justices. All cases brought before the Supreme Court and the Circuit Courts were to be tried by a jury of twelve. The King and the Legislative Assembly also had the power to determine the number and frequency of Police Courts, and the Legislative Assembly was to regulate the powers of the police magistrates.
In the third section dealing with land matters, all land in Tonga was declared to belong to the King who could grant estates known as tofi’a to the twenty nobles appointed by him. The titles and the tofi’a were to be hereditary, and the laws of inheritance for the throne and these titles were set out in this section. The nobles were to lease portions of their tofi’a to their people.
The constitution made it unlawful for anyone, whether he was 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’ (Clause 109), and only leases approved by the Cabinet were to be recognised. Any lands which were not owned by anyone, or any tofi’a which failed to have legitimate heirs should revert to the government, and the government had the right to lease such lands.
The Constitution of 1875 marked the culmination of a gradual process by which King George had attempted to bring to Tonga the type of legal and constitutional machinery which would enable her to gain recognition from the civilised nations and maintain her own independent and stable government. Many of the provisions of this constitution departed altogether from traditional precedents, as, 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 throne 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 in the hands of the principal chiefs of the ha’a to which the title belonged. Usually they chose the most capable candidate. 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.
By the 1870s there was considerable speculation among both Tongans and European settlers and British administrators in the South Pacific, as to who would become the successor to King George, after his long reign, extending from his rulership of Ha’apai since 1820, of Vava’u since 1833 and of the whole of Tonga since 1845. Many prophesied that civil war would break out over this question if nothing were done about it. As early as the 1850s the missionaries had repeatedly requested King George to declare a successor.2 St Julian had also dealt with the matter in one of his letters of constitutional advice (St Julian to King George, 26 June 1855). No doubt King George was well aware of the threatening political storm hovering over the kingdom and ready to burst immediately upon his death. The law of succession was a way of forestalling any such disaster. Subsequent events have proved the soundness 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 (Watson 1918:50-1).
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 in the rule of law. Although the King’s power was still great, in that he could veto legislation and had the prerogative to appoint and dismiss the 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, there were drastic limitations of the King’s powers. Some have claimed that, in practice, King George failed to adhere strictly to this part of the constitution. This was understandable, for he was an extremely able ruler, whose subjects accepted and revered him, whether or not he acted in accordance with the letter of the constitution. At the same time, the primary purpose of the constitution was to make the Tongan government acceptable in the eyes of other nations, and to furnish a blueprint for his successors and future generations of Tonga. In both these respects the constitution proved successful.
There was a vast difference in the composition and working of the new Legislative Assembly and the traditional fakataha,which had actually been a council of chiefs. The fakataha were held at irregular intervals, depending upon whether the King wished them to be held, and 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 and, for the first time, commoners 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.
The teachings of the missionaries on the equality of all men before God had significantly raised the social status of commoners, and their participation in church organisations together with the chiefs had helped to prepare the ground for their greater social and political acceptance. This was further assisted by the founding of Tupou College in 1866, where Moulton implemented a policy of treating all students alike, be they chiefs or commoners. The only hierarchy recognised within the College was a hierarchy of intellectual achievement. Since significant numbers of commoners passed through the College, a mutual respect began to develop between them and the chiefly class, and this made it less difficult for the nobles to accept the constitutional provisions for commoner representation in the Assembly. Only those chiefs who had failed to gain a place for themselves in the Assembly showed any resentment.
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. This would appear to be the very reverse of what both the missionaries and King George had been trying to achieve with the earlier legislation, which aimed at limiting the power of the chiefs and raising the status of commoners. In the new constitution a certain number of chiefs were now to be chosen by the King and made the nobles of Tonga;3 they were to be given tracts of land to be their tofi’a or hereditary estates.
The new constitution, in effect, gave the nobles a form of indirect power over their people. The fact that the commoners received their leases of land from the nobles made them feel obliged 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. Applicants and would-be applicants for land had to be particularly generous with their gifts if they were to win favour with their landlord.
Later on, when provisions were made in the laws 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.4 If he was satisfied with the applicant’s ‘behaviour’ (particularly his generosity and servility) he would then permit him to register the land, but if he were displeased, he could take back the land and give it to someone else.
In a recent study of land usage in Tonga, Maude writes:
The commoners’ tribute and subservience, which openly acknowledge the superiority of the nobles, helped to water down 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, which many chiefs viewed as a threat to their power and prestige. The chiefs naturally desired to see these acts of submission perpetuated in order to maintain their privileges. The continuance of these customs in modern times has proved a major obstacle to the social, economic and political development of the people.5
Economically the nobles continued to amass wealth at the expense of the common people. Maude’s study of land tenure in Tonga has shown that some of the nobles became reluctant to subdivide their tofi’a into bush allotments for those who were eligible for them and that they also tried to hinder those who already held leases from registering these allotments. The nobles of course realised that, once such land had been registered, they could no longer reclaim it, providing that its holder abided by the land laws. They further realised that their land was their sole means of securing their privileges. As a result, a considerable proportion of land remained unregistered, and the resulting insecurity of tenure diminished incentives for land improvement, since the tenants were only concerned with satisfying their immediate wants.6
From the perspective of the present, the creation of the landed nobility appears to have been a blunder, for it helped to create 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 can be regarded as an ingenious step on the part of the King and his constitutional adviser, Baker, 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 quell the opposition from the most powerful chiefs and won their support and loyalty.
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 the sale of land, and the provision making it unlawful for any noble to lease land to European settlers without the consent of Cabinet, has proved to be 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. 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 and Hawaii exemplify (see Morrell 1960:82, 148; Derrick 1963:223; Chambers 1896:8). Thirdly, it saved Tonga from the racial problems which other islands, particularly Fiji, have had to face. The virtual absence of European plantations in Tonga made it unnecessary to import labourers from other places.
It cannot be said that Baker, the author of this constitution, was an authority on constitutional matters; nor did he bring to the highly specialised task he had decided to undertake an adequate educational background or training in law. However, he followed the Hawaiian Constitution of 1852 very closely, adapting it with the help of King George to the local conditions and needs of Tonga. His other sources appear to have been the English consitutional practice, which he probably derived from the laws of New South Wales, given him by Sir Henry Parkes, the previous Tongan Codes, and the Bible.
Critics were quite merciless in their denunciation of the constitution. A. Mackay, a business man who was in Tonga during the height of Baker’s power, and who was very anti-Baker, asserted that the constitution was unsuitable, unworkable and abortive, and certainly reflected no credit on anyone connected with it ( Sydney Evening News, 21 Oct. 1897). Basil Thomson (1894:229) wrote ‘that the pretentious document beginning, “Seeing it appears to be the Will of God for man to be free,” with its complicated machinery, designed to deceive strangers into the belief that Tonga was a State growing in importance and prosperity, was utterly unsuited to the Tongans’. Alfred Maudslay, who was British Consul in Tonga in 1878, claimed that he had never met ‘a Tongan from the King down who pretended to understand it and if one might form any judgement from the English translation, this was little to be wondered at’ (Maudslay to Salisbury, 23 Jan. 1879, Britain 1876-1880).
These criticisms were not groundless. It was true that the people of the time could not understand most of the constitution, and that able, but perhaps biased, observers were genuinely convinced that it was unsuitable and would not work. However, time has proved that the critics were over-pessimistic. Later J.S. Neill (1955:100-1), who was British Agent and Consul in Tonga for ten years from 1927 to 1937, gave a more favourable evaluation of its worth:
The success or failure of the constitution may be measured by its acceptance, nationally and internationally. Nationally, the constitution was accepted by the people. In his Tongan paper, called Boobooi (II, 1 (1875): 2-3), Baker did his best to explain its meaning before it was promulgated. He compared the function of the constitution in government to that of the Bible in the church. King George stated:
The Tongans accepted the constitution in this spirit and were immensely proud of it, even though they did not understand it fully. It has since been a popular theme for glorification by poets, talked about in the faikava (kava party) and, as Thomson (1937: 143) pointed out, has been regarded by the Tongans as ‘Holy Writ’. The very sanctity which the constitution had assumed in their minds posed some further problems, for it made them reluctant to accept any amendments to it, even when such were required to meet the demands of a new era.7 Internationally, the constitution, with all its limitations, led the civilised nations of the world to recognise Tonga’s independent sovereignty—in 1876 Tonga signed a treaty with Germany (Thomson 1894:386), in 1879 one with Britain, and in 1888 one with America (Wood 1932:59)—and the country came to be regarded as having a government capable of managing both its internal affairs and external relations. In actual fact, Tonga was not able to manage its own affairs. Hence the sending to Tonga of Basil Thomson in 1890 to tidy up the mess in the Tongan government after the deportation of Baker, and the Treaty of 1900 giving the British Consul the power of veto over finance and external affairs. However, it saved Tonga from being annexed (see Thomson 1902: 153).
Although the missionaries cannot be held fully responsible for the gradual constitutional development, they played a significant role in it. The impact of their teachings on King George and his people, not only religiously but as agents of Christian civilisation, was so effective, that these teachings, together with other factors, produced a gradual but marked change in Tongan society. The assistance the early missionaries gave, as a body, with earlier legislation was of great importance, and although most of the later ones were reluctant to become too deeply involved in politics, Baker gave his wholehearted assistance to King George in his political innovations, arguing that he was entitled to do so when the King had called for his help.
The main criticism levelled against the constitution was not that it was legally unacceptable but that it was too advanced for the people. True, the Tongans did not fully understand it at the beginning, and for a while they were unable to administer it properly, which caused some discontent. But these short-term deficiencies were far outweighed by the long-term benefits which Tonga has reaped from it. Its mere existence provided a means of political education for later generations. Its unquestioned acceptance and reverence by the people assisted in the maintenance of internal stability, thereby ensuring slow, perhaps, but definitely peaceful and continuing development. It gave rise to a feeling of security never felt before, particularly in respect of Tonga’s independence and integrity as a nation.