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.
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.
