Distraction Playlist: Sundays in Tonga

Sunday is an important day for all Tongans.  It is the peak day of the week. It is a day where all business activities cease and most families spend the day attending church services, resting, spending time with family and having the traditional ‘umu.  

At home, we have to clean up and sweep on Saturdays in preparation for Sundays. I even spend most of the week with my nieces and nephews thinking of what to bake on Sundays to make it extra special. We all look forward to relaxing and eating (even though we do this throughout the week).

Reflecting on this, I wanted examine the history of Sundays in Tonga and how it was regulated in the past and how it is regulated at present in Tonga.

History of Sundays in Tonga

The sacredness of the “Sabbath”  was an integral part of the missionaries teachings in Tonga. The Tongan converts accepted this teaching with great seriousness.[1] Tongan regarded Sabbath in the same spirit as they observed traditional taboos.[2] The sacredness of Sabbath became a part of the Constitution of Tonga.[3] Young (1854:268) who observed Sabbath in Tonga wrote –

“Never had I previously observed such respect paid to the Sabbath of the Lord. The day appears to be exclusively devoted to religious services, and notghing meets the eye or ear infringing upon the sanctity of that blessed day, but everywhere incense and a pure offering seem to be presented to the Lord of Hosts. If the people are beheld coming from their habitations, it is that they may go up to the house of the Lord, and inquire in his holy temple. If a canoe is seen in the offing, it is conveying a Local Preacher to his appointment in some distant island, that he may preach unto the people Jesus. If noises occasionally fall upon the ear, they are not those of revelry and strike, but of holy praise and fervent prayer going up to heaven”[4]

The first appearance of “Sabbath” in Tongan legislation is seen in Clause 2 of The Code of Vava’u 1838 which states:

“My mind is this. That all my people should attend to all the duties of religion towards God; that they should keep holy the Sabbath day, by abstaining from their worldly occupation and labours, and by attending to the preaching of the word and the worship of God in their places of worship.

Should any man on shore or from on ship board come to the chapel for the purpose of sport or to disturb the worship; should he insult the Minister or the congregation, he shall be taken and bound, and fined for every such offence, as the judge shall determine”

The 1850 Code of Laws, which was a revision of the Vava’u Code referred to Sabbath-day in Clause XIII which states:

    “XII The Law referring to the Sabbath-day

 The breaking of the Sabbath is a great sin in the sight of God. Work which cannot be dispensed with, such as preparing food for a sick person, maybe done, or any unforeseen accident occurring; but other works, such as house-building, making canoes, gardening, seeking fish, journeying to a distance, and assembling together for wicked purposes, are all forbidden. Any person found guilty shall work one month, and repetition of the crime, two months.“

The 1862 Code of Laws which was a revision of the 1859 Code referred to Sabbath-day in Clause XV which states:

 “XV The law concerning Sabbath breaking

It is not lawful to work on the Sabbath day – either to build houses, or canoes, or to farm, or go fishing, or such like; but there are things that may be done on the Sabbath, such providing for sickness, or accidents. And who-ever breaks this law shall be fined eight dollars, and for the second offence sixteen dollars.

The first version of the Constitution of Tonga  in 1875 referred to the Sabbath- day in Clause 6  as follows:

“6. The Sabbath Day shall be sacred in Tonga forever and it shall not be lawful to work, or artifice, or play games, or trade on the Sabbath. And any agreement made or document witnessed on this day shall be counted void, and will not be protected by the Government.”

Amendments to the Sabbath Laws                

Clause 6 of the Constitution was amended by Act 3 of 1971 to the current clause –

“The Sabbath Day shall be kept holy in Tonga and no person shall practice his trade or profession or conduct any commercial undertaking on the Sabbath Day except according to law; and any agreement made or witnessed on that day shall be null and void and of no legal effect”[5].

The amendment in 1971 provided an exception for the “essential services” under the Orders in Public Places Act and any other services granted by the Minister of Police with the approval of Cabinet.

Bakeries on Sundays

Growing up, I always knew that the bakeries were always open on Sundays. I tried to locate the authority that allowed for Bakeries to be open on Sundays, but I cannot locate it. However, there is an assumption that Cabinet allowed for the Bakeries to open in Tonga on Sundays after Tropical Cyclone Isaac in 1982.

However, I found a newspaper article from the Tonga Chronicle in 1971 whereby the Police charged a baker Frank Cowley under Clause 6 of the Constitution for baking bread on a Sunday. The Chief Magistrate at the time Justice Roberts acquitted Mr. Cowley and stated that it was “unreasonable to expect that no work can be conducted on a Sunday, because that would mean the hospital should cease operation on Sunday and the ZCO should cease  broadcasting on Sundays”.[6]

Interestingly the amendments to Clause 6 of the Constitution was enacted in 1971 together with the amendments to the Orders in Public Places Act[7] which  provides a list of essential services that are allowed to work on Sundays. These provisions are discussed below. We can only assume that the amendments were made as a result of the concerns of the Chief Magistrate as seen in the 1971 article.

The  full article is seen below:

What is the current definition of “Sunday” or “Sabbath” in the Tongan laws?

“Sabbath Day” is defined under the Order in Public Places Act [Cap 37] as “the period from 12 midnight on any Saturday until 12 midnight on the following Sunday”.[8]

Clause 6 of the Constitution of Tonga expressly prohibits all activities on Sabbath and  states as follows:

“The Sabbath Day shall be kept holy in Tonga and no person shall practice his trade or profession or conduct any commercial undertaking on the Sabbath Day except according to law; and any agreement made or witnessed on that day shall be null and void and of no legal effect”[9].

What does other legislation say about Sundays in Tonga?

Taking Clause 6 of the Constitution of Tonga which prohibits all activities on Sunday (except according to law), other Tongan legislation re-enforces this notion for example –

• Bail Act provides that a person arrested shall be brought within 24 hours after his arrest before a Magistrate who may remand him in custody , however, no account shall be take of public holidays or any Saturday or Sunday in any period of 24 hours after his arrest.[10]
• Bills of Exchange Act provides that a non-business day means a Saturday or Sunday.[11] A bill drawn in Tonga dated on a Sunday is invalid.[12]
• Companies Act defines a working day to mean a day of the week other than a Saturday and Sunday.[13]
• Fisheries Management Act defines a “working day” in relation to a Flag States means any day of the week other than Saturday or Sunday.[14]
• Education Act provides that a school attendance officers may enter any yard, house , building or place between the hours of 8am and 5pm of any day except Sundays to make enquiries as to any child residing or employed there.[15]
• Interpretation Act provides that any intervening Sunday and public holiday shall be excluded from the computation of the time.[16] If the proclamation of an Act, proclamation or regulation falls on a Sunday or public holiday, unless contrary intention appears, proclamation or regulation shall be read as if the first lawful day next succeeding the Sunday or public holiday has been named.[17]
• Intoxicating Liquor Act provides that no liquor shall be sold under a bar license on a Sunday, except if liquor is sold to a guest of the accommodation where the bar is located, and such liquor is sold between the hours of 12pm to 9pm.[18] The permitted hours to sell alcohol under  a restaurant licence on Sundays shall be between 11am to 9pm.[19]  A night-club licence holder is not permitted to sell or supply alcohol at 11.30pm of the previous day and 12 midnight on any Sunday.[20]
• Pounds and Animals Act provides that the sale or transfer of horses or kine on a Sunday is prohibited.[21]
• Public Holidays Act provides that if the Birthday of the reigning Sovereign of Tonga and the Birthday of the Heir to the Crown of Tonga shall be celebrated on the day it falls, unless it falls on a Sunday in which case it would be celebrated on the next following Monday.[22]
• Magistrates Court Act provides that fines unpaid for 14 days is exclusive from Sundays from the date of payment.[23]
• Telegraph Act provides that a period of copyright shall extend beyond 48 hours if Sunday intervenes.[24]
• Tourism Authority Act provides that nothing in the Act shall affect the operation of any other law prescribing requirements applying to the tourism sector including Sunday operation laws.[25]
• Prisoners Act provides that no marks shall be allotted for mere good conduct except on Sundays, Christmas Day and Good Friday [26]and any prisoners who conducts himself well on Sundays, Christmas Days and Good Friday is entitled to receive 8 marks[27]. Any prisoner whose term of imprisonment expires on Sunday shall be discharged on the immediate day preceding.[28]
• Customs and Excise Management Regulations provides that an officer who reports for duty and his services are not required the person who applied for his service shall pay for 3 hours attendance in respect of Sundays and public holidays and for 2 hours attendance on other days.[29]
• Talamahu Market Regulations provides that the market and canteens[30] in Talamahu shall not open for business on a Sunday.[31]
• Market Regulations provides that the market and canteens [32]shall not open for business on a Sunday.[33]
• Medical Services Regulations provides that a dispense shall attend for an hour only on Sundays.[34]
• Order in Public Places Act provides that any person who engages or practices trade, purchases or sells goods or services, engage in construction, gardening or agricultural works, creates or cause unnecessary noise or is engage in any game, sport, dancing or fishing whether organized or not on a Sunday commits an offence and is liable to a fine not exceeding $100 or to imprisonment for any period not exceeding 6 months or both.[35]
• Prison Rules provides that if a prisoner’s term of imprisonment expires on a Sunday, he shall be discharged at 1.00pm on the immediate day preceding. [36] Prisoners awaiting trial or under examination are not allowed visitors on Sundays.[37] Persons awaiting trial, under examination or prisoners convicted by Magistrates are not allowed visitors on Sundays.[38] Prisons shall do necessary cleaning on Sundays.[39] No marks shall be allotted for mere good conduct except on Sundays, Christmas Day and Good Friday. Every prisoner entitled to marks who conducts himself well on those days shall receive 8 marks.[40]
• Rules of the Legislative Assembly of Tonga provides that a select committee cannot meet on a Sunday.[41]
• Revenue Services Administration Regulations provides if the due date for lodging an application, notice or other document is Sunday, the due date shall be the next following business day.[42]

What are the activities allowed to be conducted on a Sunday in Tonga?

The Order in Public Places Act provides that the only activities to be conducted on a Sunday is an “essential service”.  An “essential service” is a service rendered for the public good by  the following –

(a)       the Ministry of Health;

(b)     the Ministry of Police in the maintenance and preservation of law and order;

(c)       a concessionaire under the Electricity Act;

(d)       the Tonga Water Board;

(e)       the Tonga Broadcasting Commission;

(f)        all licensed telecommunications operators;

(g)       the Ministry responsible for Civil Aviation in the operation of any airport; and

(h)       the Ministry responsible for Marine and Ports or the Ports Authority in the operation of any port;

(i)        Private Security Services; and

(j)        persons employed by Government Ministries to perform security activities[43].

This Act provides that a person will not be convicted of a Sunday related offence if the offence was done solely for the purpose of meeting an emergency.[44] In addition, the Act allows essential service activities or any activities conducted in accordance with the terms of a permit granted by the Minister of Police with the approval of Cabinet.[45]

Current status of  Clause 6 in Tonga

The Pohiva Government enforced the banning of the selling of bread on Sundays in Tonga commencing on 3 July 2016[46]. This was supported by the Church Leaders and members of Parliament. It is very interesting to see the change in dynamics in the application of Clause 6 of the Constitution. 

It will be interesting to see how far we will go with the application of Clause 6 especially with the threats of COVID-19 and other factors in Tonga today.  But at the same time, Clause 6 of our Constitution is a representation of our strong Christian faith and the respect all Tongans have for their faith. It is a factor that makes Tonga unique from all other Pacific Island Countries and the world in general.

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes. I do not own any of the images on this blog.

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[1] Sione Latukefu, ‘Church and State in Tonga’ (1974) 80.

[2] Sione Latukefu, ‘Church and State in Tonga’ (1974) 80.

[3] Sione Latukefu, ‘Church and State in Tonga’ (1974) 80.

[4] Sione Latukefu, ‘Church and State in Tonga’ (1974) 80.

[5] Clause 6, Act of Constitution of Tonga [Cap 2] (Tonga).

[6] Paraphrasing in English of the 1971 article (Kalonikali Tonga, Nuku’alofa, February 18, 1971).

[7] Order in Public Places (Amendment) Act (Act 4 of 1971).

[8] Section 6(5), Order in Public Places Act [Cap 37] (Tonga).

[9] Clause 6, Act of Constitution of Tonga [Cap 2] (Tonga).

[10] Section 9(3)(b) Bail Act 1990 (Tonga).

[11] Section 2, Bills of Exchange Act [Cap 38] (Tonga).

[12] Section 13(3) Bills of Exchange Act [Cap 38] (Tonga).

[13] Section 2, Companies Act 1995 (Tonga).

[14] Section 60(4)(a) Fisheries Management Act 2002 (Tonga).

[15] Section 103(2) Education Act 2013 (Tonga).

[16] Section 18(3), Interpretation Act [Cap 1] (Tonga).

[17] Section 18(4), Interpretation Act [Cap 1] (Tonga).

[18] Section 31(1) Intoxicating Liquor Act [Cap 84] (Tonga).

[19] Section 44(3)(b) Intoxicating Liquor Act [Cap 84] (Tonga).

[20] Section 44A(2) Intoxicating Liquor Act [Cap 84] (Tonga).

[21] Section 24 (1)(b) Pounds and Animals Act [Cap 147] (Tonga).

[22] Section 2, Public Holidays Act [Cap 51] (Tonga).

[23] S. 27(1), Public Holidays Act [Cap 51] (Tonga).

[24] Section 26, Telegraph Act [Cap 99] (Tonga)

[25] Section 5(1)(p) Tonga Tourism Authority Act 2012  (Tonga).

[26] Section 51(2), Prisoners Act 2010 (Tonga).

[27] Section 51(3), Prisoners Act 2010 (Tonga).

[28] S.57(2), Prisoners Act 2010 (Tonga).

[29] Regulation 137 (3), Customs and Excise Management Regulations 2008 (Tonga).

[30] Regulation 20 (4), Talamahu Market Regulations 1995 (Tonga).

[31] Regulation 4(1), Talamahu Market Regulations 1995 (Tonga).

[32] Schedule 2 (7) Market Regulations 1988 (Tonga).

[33] Regulation 8(1), Market Regulations 1988 (Tonga).

[34] Regulation 3(a), Medical Services Regulations (Tonga).

[35] Section 6(1), Order in Public Places Act [Cap 37] (Tonga).

[36] Rule 111, Prisons Rules (Tonga).

[37] Rule 144, Prisons Rules (Tonga).

[38] Rule 145, Prisons Rules (Tonga).

[39] Rule 181, Prisons Rules (Tonga).

[40] Rule 187, Prisons Rules (Tonga).

[41] Rule 166(1)(a), Rules of the Legislative Assembly of Tonga (Tonga).

[42] Section 23(2)  Revenue Services Administration Regulations 2003 (Tonga).

[43] Section 6(4), Order in Public Places Act [Cap 34] (Tonga).

[44] Section 6(2), Order in Public Places Act [Cap 34] (Tonga).

[45] Section 6(3), Order in Public Places Act [Cap 34] (Tonga).

[46] ‘Bakeries hit hard with surprise Sunday ban’ (2016) https://matangitonga.to/2016/07/02/bakeries-hit-hard-surprise-sunday-ban (Accessed 25 April 2020).

Distraction Playlist: Rights of Customarily Adopted Children in Tonga

I just posted a blog on Customary Adoptions in Tonga and I couldn’t help myself but further explore the rights of these children in the Tongan context. I am happy to share my findings as part of my distraction playlist.

 Rights of adopted children in general before the 1875 Constitution

The Constitution of Tonga 1875 provides strict rules of primogeniture.[1] Prior to the 1875 Constitution, there was inherent flexibility with the inheritance of chiefly titles.[2] For instance, an adopted son of a titled individual can succeed to the adopting parent’s title, however his own son cannot succeed to the title.[3]The adopted son is considered to be “holding” the title until the proper heir will come of age.[4] The title will always have to revert to the original descendants. [5] However after the 1875 Constitution was enacted, no adopted individual could succeed to a hereditary title. This is illustrated in the diagram below:

Source: Adoption Transaction (Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 110)

Right to a Hereditary Title and Estate – Act of Constitution (Tonga)

Source: AEK

Adopted children in general, whether legally adopted or customarily adopted have no right to the adopting parent’s hereditary title.

This is evident in Clause 111 of the Act of Constitution, which provides for the law of succession, and it states:

“…Whereas by Tongan custom provision has always been made that an adopted child might succeed to the estates and titles of his adoptive father now therefore it is decreed that upon the death of the holder of an estate or title who has inherited such estate or title by virtue of his blood descent from such adopted child the estate and title shall revert to the descendant by blood of the original holder of the estate and title in accordance with the provisions of this clause and should there be alive no such descendant by blood the provisions of the one hundred and twelfth clause shall apply…”

This provision was further re-affirmed by King George Tupou I’s speech during the 1875 Parliament where he states:

“…the estate shall go with the title, and the succession shall be from the father to the son for ever. The Law of Succession is stated in the Constitution, and such succession shall be by blood relationship only: from to-day NO ADOPTED CHILDREN SHALL SUCCEED TO THE ESTATE OR TITLE OR TO ANYTHING; only the children of blood relations and by marriage…[6]

In addition, this provision of the Act of Constitution ensures that customarily adopted children or any adopted children cannot inherit the adopting parent’s title. However legitimate children subject to a Legal Guardianship Order may continue to inherit land from their natural parents. This is the rationale behind the termination of guardianship clause; [7] in the Guardianship Act 2004 it is to allow a legitimate child to enjoy the succession rights from his or her natural parents. [8] It is important to note that only persons born in wedlock can inherit land[9] and a male child are preferred over a female child to inherit land.[10]

Furthermore customarily adopted children are not even considered in the Probate Act [11] for the distribution of a person’s estate, if the adoptive parent were to die intestate.

Right to a Nationality

The adoption laws in Tonga do not specify the rights to a nationality of children subject to customary adoptions.  However the Maintenance of Illegitimate Children Act[12] provides that “…the adopted person shall be deemed to be of the same nationality as the person to whom Letters of Adoption have been granted by the court”.[13] However an adopted child can reacquire his or her Tongan nationality when he or she turns 21, by applying to the Supreme Court for Letters of Admission.[14] Hence this only applies to illegitimate children who were subject to successful letters of adoption applications of adoptive parents of different nationals.

The Guardianship Act 2004 is silent on nationality issues; hence it is difficult to identify the position of legitimate children subject to Legal Guardianship Order or children subject to customary adoptions.

The Nationality (Amendment) Act 2007[15] allowed Tongan nationals to main their Tongan nationality when they acquire a foreign nationality. [16]The same amendment provides a provision for the re-admission of Tongan nationals whom lost their Tongan nationality prior to the commencement of the Amendment.[17] Therefore children subject to customary adoption, legal guardianship or letters of adoption can still maintain their Tongan nationality, even if they are taken by their adoptees to a foreign country.[18]

Name Change

Children subject to customary adoptions do not automatically have their names changed. The Maintenance of Illegitimate Children Act provides that the “…adopted person shall bear the name …as the person to whom Letters of Adoption have been granted by the Court…”[19] Name changes under a Letters of Adoption application is usually made and granted in chambers if the application is successful. Only illegitimate children subject to letters of adoption applications can have their names changed automatically.

The Guardianship Act is silent on name change. Children subject to a successful Legal Guardianship Order application can apply for a change of name under section 8 of the Registrar General’s (Change of Name) Regulations 2011.   The child’s legal guardian can apply on their behalf for a change of name. [20] A notice of the change of name must be published in a newspaper, and upon proof of publication, the Registrar General shall deliver to the applicant a certificate of registration of name. [21]

Customarily adopted children have minimal rights  in Tonga especially with inheriting land titles and estates. However, despite the fact that customary adopted children cannot inherit land, this does not restrict them from inheriting lease land or inheriting tangible and non-tangible goods from their adoptive parent’s will.

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes. I do not own any of the images on this blog.

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[1] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory117.

[2] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory116.

[3] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory116.

[4] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory116.

[5] Charls F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 116.

[6] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory117.

[7] Guardianship Act 2004 (Tonga) s.14.

[8] Faletau v ‘Akau’ola [1997] Tonga LR 185.

[9] Land Act [Cap 46.02] (Tonga) s.41(a).

[10] Land Act  [Cap 46.02] (Tonga)  s.41(d).

[11] Probate Act [Cap 17.21] (Tonga).

[12] Maintenance of Illegitimate Children Act [Cap 17.18] (Tonga).

[13] Maintenance of Illegitimate Children Act [Cap 17.18] (Tonga) s.18.

[14] Maintenance of Illegitimate Children Act [Cap 17.18] (Tonga) s.19.

[15] Nationality (Amendment) Act 2007 (Tonga).

[16] Government of Tonga, The Report of the Attorney General and Minister of Justice for the year 2007 (2007) 11.

[17] Government of Tonga, The Report of the Attorney General and Minister of Justice for the year 2007 (2007) 11 – This made reference to the Nationality (Amendment) Act 2007 (Tonga).

[18] Government of Tonga, The Report of the Attorney General and Minister of Justice for the year 2007 (2007) 63.

[19] Maintenance of Illegitimate Children Act [Cap 17.18] (Tonga) s.8.

[20] Registrar General (Change of Name) Regulation 2011 (Tonga) s.8.

[21] Registrar General (Change of Name) Regulation 2011 (Tonga) s.9.

Distraction Playlist: Customary Adoptions in Tonga

Customary adoption is simply defined as “the transfer of the custody of a child to the care and protection of adoptive parents without the termination of parental rights”.[1] It is usually not legally recognized by most societies. Customary adoptions occur between relatives and close friends where strong relations have been established.[2]

Customary adoptions can be seen in different forms in Pacific Island Countries before the colonial period. [3] There are many reasons why customary adoptions exist in Pacific Societies, and this varies from society to society and culture to culture. [4] Individuals customarily adopt for the following reasons:

• the death of a child, so adoptive couple want another child; [5]
• the death of a child’s biological parents;[6]
• the death of a child, so the adoptive couple adopts another child;[7] the death of a child’s parents;[8]
• the need to teach a child certain custom practices;[9]
• strengthen extended family ties; [10]
• to maximize social standing and rank of the family;[11]
• the child was born illegitimate, out of wedlock to a single mother; and
• used as a  source of support for the childless and the aged.[12]           

Customary adoptions are unique from legal adoption because adoptive parents usually have no legal status over the child. [13]The children maintain secure link with their biological parents and other members of the family.[14]

The Guardianship Act 2004 [15] currently governs the customary adoption process in Tonga.

Customary Adoption is defined under the Guardianship Act 2004 as “…the placement of a child according to custom and the transfer of parental rights of custody and control in the upbringing of a child”[16].  Customary adoptions were not legally recognized in Tonga until 2004, when the Guardianship Act 2004 was enacted to specifically “regulate guardianship, access, custody and customary adoption”.[17]

            There are five common terms in Tonga used to describe customary adoption; this includes “tauhi”, “ngaahi”, “fakahingoa”, “pusiaki” and “ohi.[18] However “ohi” was the term commonly used to describe customary adoption as it involved permanent change in the child’s rank and the child’s residence. [19]The other four terms refer to fostering or looking after children.[20] The children subject to the later terms still adheres to their biological or natural parents.[21] Customary adoptions are distinct from other forms of legal adoptions, as the adoptive parents are usually a close family relative or close family friend of the natural parents.[22]

William Mariner (Photo Source: John Martin, ‘Tonga Islands, William Mariner’s Account’ (1st ed, 1991).

            The concept of “ohi” or “adoption” was first seen or recorded in the accounts made by William Mariner.[23] William Mariner was a cabin boy on a pirate ship called the Port au Prince.[24] The ship landed in Ha’apai on 1 December 1806, and the Tongan natives massacred the crew and the ship was burnt. [25]Mariner’s life was spared and he was adopted by high chief Finau ‘Ulukalala and his principal wife Mafihape. Mariner was renamed after Finau ‘Ulukalala’s deceased eldest son “Tokiukamea” to reflect the respect and esteem that Mariner was held.[26] However Mariner was never able to identify, whether there were other foreigners adopted just like him.[27] Nonetheless, the practice of adoption then, was not limited to unwanted children or to orphans like the common practice in Western countries.[28]

            Prior to 2004, there was no recorded legislation or law concerning the parental legal rights and customarily adopted children’s rights and duties.[29] Customary adoption was an important aspect of Tonga’s culture and was commonly practiced by people of different ranks.[30] There was never a need for the court’s to enforce the rights of parents who had customarily adopted a child.[31] It is a basic understanding that customarily adopted children are treated with the same respect of legally adopted children.[32]

            Today “customary adoptions” can be legalized under section 6 of the Guardianship Act 2004.[33] Both illegitimate and legitimate children can be subject of customary adoptions. However there are no clear statistics to identify the number of customary adoptions, as most customary adoptions are not recorded.

Special thank you to Ms. Manakovi Pahulu, Chief Executive Officer for the Ministry of Justice for sharing your wealth of knowledge on adoptions in Tonga with me.

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes. I do not own any of the images on this blog.

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[1]Nancy Currie, Tribale Customary Adoption : A culturally appropriate option for Tribes and Indian Families’ (2009) http://theacademy.sdsu.edu/TribalSTAR/resources/files/TribalCustomaryAdoptionPPT.pdf (Accessed 20 May 2014) 8.

[2] Professor the Honourable Alastair Nicholson, ‘The Law of Customary Adoption : A Comparison of Australian and Canadian Approaches to its Legal Recognition’ (2009) http://www.childjustice.org/index.php/component/edocman/?task=document.viewdoc&id=104&Itemid=472 (Accessed 20 May 2014) 5.

[3] ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[4] Professor Marilyn Poitras and Professor Norman Zlotkin , ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[5] Professor Marilyn Poitras and Professor Norman Zlotkin, ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[6] Professor Marilyn Poitras and Professor Norman Zlotkin, ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[7] Professor Marilyn Poitras and Professor Norman Zlotkin , ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[8] Professor Marilyn Poitras and Professor Norman Zlotkin , ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[9] Professor Marilyn Poitras and Professor Norman Zlotkin , ‘An overview of the Recognition of Customary Adoption in Canada – Final Report (2013) http://www.firstnationsfamilyinstitute.ca/downloads/custom-adoption.pdf  (Accessed 20 May 2014) 9.

[10]  ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[11]  ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[12]  ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[13]  ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[14]  ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014).

[15] Guardianship Act 2004 (Tonga).

[16] Guardianship Act 2004  (Tonga) Section 2.

[17] Guardianship Act 2004  (Tonga)  Section 1 – Long Title of the Act.

[18] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 110.

[19] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 110.

[20] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 110.

[21] Charles F. Urbanowicz, ‘Tongan Adoption before the Constitution 1875’ (1973) 20 Ethnohistory 110.

[22] ‘Migration Review Tribunal : Australia – MRT Research Response’ (2009) http://www.refworld.org/pdfid/4f13fafd2.pdf  (Accessed 20 May 2014) 3.

[23] Monash University, ‘Mariner, William 1791-1853’ (2012) http://monash.edu/library/collections/exhibitions/pacific/virtual/photos/photo7.html  (Accessed 20 May 2014).

[24] Monash University, ‘Mariner, William 1791-1853 (2012) http://monash.edu/library/collections/exhibitions/pacific/virtual/photos/photo7.html

(Accessed 20 May 2014).

[25] Monash University, ‘Mariner, William 1791-1853 (2012) http://monash.edu/library/collections/exhibitions/pacific/virtual/photos/photo7.html

(Accessed 20 May 2014).

[26] Edwin N. Ferdon, Early Tonga: As the Explorers Saw it 1616-1810 (1987) 138.

[27] Edwin N. Ferdon, Early Tonga: As the Explorers Saw it 1616-1810 (1987) 138.

[28] Edwin N. Ferdon, Early Tonga: As the Explorers Saw it 1616-1810 (1987) 139.

[29]  Kaho and District Director, Immigration and Naturalization Service 765 F.2d 877, [40].

[30]  Kaho and District Director, Immigration and Naturalization Service 765 F.2d 877, [40].

[31]  Kaho and District Director, Immigration and Naturalization Service 765 F.2d 877, [40].

[32]  Kaho and District Director, Immigration and Naturalization Service 765 F.2d 877, [40].

[33] Guardianship Act 2004 (Tonga).

Distraction Playlist: Magistrates Court in Tonga

I am a big fan of the podcast “Stuff You Should Know” (“SYSK”), recently SYSK has been broadcasting  a “SYSK Distraction Playlist” where the hosts Josh Clark and Chuck Bryant talk about random different topics like “The Amazing History of Soda” or “What was the Falkland Islands War all about anyway?” amongst others.

The Lockdown period in Tonga inspired me to create my own distraction playlist, by blogging about topics I have always been curious about, but had no time to conduct some research on.  To kick off the distraction playlist, I thought it would be a good idea to discover the history of Magistrate Courts here in Tonga.

How were trials conducted in Tonga before the Magistrates Court was introduced?

Unlike Samoa, offenders in Tonga were not brought to public trial before a “fono”[1]. Major offences in Tonga were dealt with by the ‘eiki whose decisions were final and punishment was conducted on the spot[2]. The punishment of offenders was usually conducted by the ‘eiki himself , if it was beating or on the ‘eiki’s orders by one or more of his “kau tangata”[3]. The ‘eiki was also free to direct one of his “kainga” to deliver the punishment for him[4].

The minor offences of the time included whistling, shouting or eating while standing[5] or walking in public places when one is not a chief or chief’s musician, failing to sit down while being addressed by a chief or when addressing him, or while a chief passed by[6]. The penalties for minor offences included “haha” (“beating”)which was conducted by thrashing the body of the offender with a “loholoho” or some other objects or the beating of the face with the bare fists[7].

The major offences of the time included violating strict taboos[8]. The penalties for major offences included “ha’i” (tying the hands and feet at the back and lying in the sun for a number of days without food and water) and “tamate’i” (instant execution) with a club[9]. It is important to note that murder, theft and adultery were only considered offences if they were committed against a person of equal or higher rank or if the stolen object was sacred[10].

Commoners were required to strictly observe the customary laws whilst Chiefs were given leeway depending on the degree of their authority and influence. The higher the Chief in rank the more freedom the Chief has to violate the taboos[11]. Civil disobedience was very rare at this time[12].

1839 – Establishment of the first Magistrates Court  

The first Magistrates Court was set up in 1839 after the enactment of the Vava’u Code 1839. Four magistrates in Vava’u were set up to sit once a month and to have jurisdiction over chiefs and commoners alike[13]. Unfortunately, I could not find the names of the very first magistrates in Tonga. The setting up of the Magistrates Court was a symbol of the extension of H.M George Tupou I’s control over Tonga[14].

The establishment of the Magistrate’s Court was to put an end to the chief’s use of the “club” as the supreme arbiter in serious disputes[15]. As a result, the chiefs were not allowed to take the law into their own hands.[16] This also introduced public trial of offenders in Tonga for the first time, which symbolized the shift from customary law to modern laws[17]. The rights of parties were decided and maintained by the appointed responsible court of law.[18]

What were the penalties imposed by the Magistrates Courts in the 1800s?

The 1839 Vava’u Code did not specify fixed punishments. The punishments were left for the magistrates to decide, but the magistrates consulted the missionaries for advice on the penalties to impose[19]. The most common penalty was the beating of the face with the fist[20]. The missionaries believed this was unacceptable and recommended that instead of beatings, the offenders should be sentenced to hard labour under the supervision of a specific officer[21]. The King also consulted the missionaries on the appropriate penalty for those violating the laws[22]. As a result of this , mission houses were burned down by the offenders and Rev. Peter Turner informed the King that the missionaries no longer want to be consulted on appropriate punishment for offenders[23].

The missionaries at the time advocated for an appeal system[24]. This is to allow the offenders to appeal the decision of any “upstart native Judge”  who maybe unfit for office or gained office because of their rank.[25]

The 1850 Code started introducing set penalties to be imposed, for instance, Clause XI forbade dancing and heathen customs, and the penalty for failure to comply is a month’s hard labour for the first offence and two months for a further offence.[26]  The 1839 Vava’u Code and 1850 Code identified the King as the Chief Judge and the main judicial authority in all disputes.[27]

Act of Constitution of Tonga  1875

The enactment of the Act of Constitution of Tonga in 1875 formally established the Magistrates Court[28]. Clause 86 of the original Act of Constitution of Tonga passed in 1875 stated:

“86. The Judicial power of the Kingdom shall be vested in the Supreme Court , Circuit Courts and Police Courts.”

The Constitution provided that the Supreme Court is responsible for arranging the manner of holding  and rules for the lower courts[29]. It further provided that it is not lawful for any magistrate to sit alone on any new trial or appeal in any case on which he may have given a previous judgement[30]. It was not lawful for a Police Magistrate to receive a portion of any fine or fines which may be paid by persons because of the breaches of law or for the Government to portion out prisoners to work for any magistrate as payment for work done by them.[31] The Magistrates were also given the power to decide on questions of law during a jury trial.[32]

Magistrates Court Act and the Development of the Magistrates Jurisdiction

The Magistrates Court Act was enacted and came into force on 24 November 1919. Since it’s enactment this Act has been subject to multiple amendments. Before 1988, the Magistrate’s Court had jurisdiction to  hear cases where punishments does not exceed $500 or two years imprisonment[33]. After an amendment in  1990, the Magistrates had jurisdiction to hear cases where punishment does not exceed $1000 or 3 years imprisonment. This was further amended in 2012, and the Magistrates were given jurisdiction to hear cases where punishment does not exceed 3 years imprisonment or fine of $10,000.

The Chief Magistrates were permitted to hear cases where punishment does not exceed $1,500 in 1990, by 2012 this was amended and the Lord Chief Justice by Order can invest enhanced powers on a named Magistrate to hear cases not exceeding 7 years imprisonment or a fine of $50,000[34]. Principal Magistrate Salesi Mafi became the first Magistrate with enhanced jurisdiction powers in 2014[35].  Senior Magistrate  ‘Elisapeti Makoni Langi became the second Magistrate to be given enhanced jurisdiction in 2019.[36]

Magistrates Court today

The Magistrates Court was formally known as the Police Court, however, in order to show the independence of the justice system from the Police, the Court was re-named as the “Magistrates Court”. Interestingly the Magistrates Court was under the direction of the Registrar who acted as “Chief Executive Officer” and it was administered under the Prime Minister’s Office.

However, the Ministry of Justice was formally established in 1988 to administer the operations of the Court and to symbolize judicial independence. It was then, the Secretary of Justice (now Chief Executive Officer) was responsible for all the administration of the Courts.

The Magistrates Court today has about 7 Tongan Magistrates and two of whom are females. As of 2020, the Magistrates Court has appointed its very first Magistrates Court Registrar. This is a reflection of the developments in the Magistrates Court.

As seen above, the work of the Magistrates Court as the first Court to be established in Tonga has changed and improved tremendously. A lot more qualified legal personnel are attracted to the career path of a Magistrate and the enhancement of Magistrates powers is a reflection of improved degree of trust in the judicial independence of Magistrates.

I hope this blog will help us appreciate the developments of the Magistrates Court and the important roles it plays in our judicial system.

Special thank you to Chief Magistrate Lokotui for sharing your wealth of knowledge of the Magistrates Court with me.

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes. I do not own any of the images on this blog.

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[1] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[2] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[3] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[4] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[5] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[6] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 13.

[7] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[8] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[9] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 12.

[10] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 13.

[11] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 13.

[12] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 13.

[13] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[14] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[15] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[16] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[17] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[18] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 21.

[19] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 23.

[20] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 23.

[21] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 23.

[22] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 23.

[23] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 23.

[24] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 24.

[25] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 24.

[26] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 25.

[27] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 27.

[28] Sione Latukefu, The Tongan Constitution- A brief history to celebrate its Centenary’ (1^st edition, 1975) 107.

[29] Act of Constitution of Tonga 1875 (original) clause 89.

[30] Act of Constitution of Tonga 1875 (original) clause 94.

[31] Act of Constitution of Tonga 1875 (original) clause 97.

[32] Act of Constitution of Tonga 1875 (original) clause 101.

[33] Magistrates Court Act [Cap 11] (Tonga) s.11.

[34] Magistrates Court Act [Cap 11] (Tonga) s.11(4).

[35] Gazette Extraordinary No. 33 of 3 July 2014.

[36] Gazette Extraordinary No. 14 of 3 July 2019.

History of Epidemics in Tonga

This blog was inspired by a television program aired by Tonga Broadcasting Commission on Tuesday 31 March 2020 hosted by Dr. ‘Ofa Tukia and Dr. Mapa Puloka. Dr. Puloka, in light of the COVID-19 global pandemic,  gave an overview of the history of epidemics in Tonga over the years.

Determined to learn more about past epidemics in Tonga, I decided to further explore the literature Dr. Puloka shared in the program to learn more about what Tonga did in the past to combat epidemics. I was also interested to learn about lessons Tonga can learn from those past experiences to assist with how Tonga will combat the current global pandemic COVID-19.

Epidemics v. Pandemics

Reading the literature on Tonga, I realized that there was no reference to “pandemics”, references were only made to “epidemics”.  In order to clarify this, I looked up the definitions on Merriam-Webster.  

An “epidemic” is defined as “an outbreak of disease that spreads quickly and affects many individuals at the same time”. [1] A “pandemic” is “a type of epidemic (one with greater range and coverage), and outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population”.[2] COVID-19 has spread to such a global extent, and with such severity that the disease is now taken as a pandemic.[3]

Measles epidemic – 1875

Due to the absence of any form of quarantine in Tonga, epidemics would take a dreadful toll of the Tongan population.[4] An epidemic was widespread through Tonga when Baker arrived. The medical knowledge was very limited. Baker’s arrival was timely, as he had some knowledge of dispensing of drugs and some practical experience. Baker attended to 30 to 40 Tongan patients everyday.

In June 1875, Baker pushed for a quarantine law to be in place to prevent the introduction of the measles epidemic in Tonga. The measles epidemic was introduced by H.M.S Dido into Fiji in January 1875[5]. As a result of Baker’s initiatives for a measles regulations, a qualified medical practitioner was secured to act as medical and quarantine officer under the Tonga Government.[6]

However, Tuku’aho administered  Baker’s quarantine regulations loosely, which resulted in the measles epidemic entering the Kingdom which resulted in the death of one in twenty of the population[7]. Tuku’aho was dismissed from Office as a result[8]. In 1893, 1000 Tongans died of measles.[9]

Spanish Influenza – 1918

The Spanish influenza was a worldwide epidemic that spread throughout the western world in the last months of World War One.[10] The high death toll in Tonga was a result of failure of foreign ports and Tonga to enforce quarantine regulations on the steamer ‘Talune’.[11]

Talune arrived in Nuku’alofa on its regular monthly voyage on 12 November 1918 from New Zealand via Fiji and Western Samoa. It stopped briefly at Neiafu (Vava’u), Lifuka (Ha’apai) before Nuku’alofa (Tongatapu).[12]The first cases of influenza occurred within a few days.[13]

The disease spread quickly throughout the Kingdom and  travelling ceased and all inhabited islands were isolated from each other. The loss of life was so severe that very few were left to record the death tolls.[14]

Tonga’s Chief Medical Officer left to Fiji to get supplies, and Tonga was left with only one Medical Officer in Vava’u.[15] Queen Salote’s yacht ‘Onelua also set sail to Fiji to request for assistance, but help was not forthcoming as Fiji was also suffering from the influenza.[16] As a result the Government of the day broke down and took no further actions to improve the effects of the epidemic locally or nationally.[17]

Tongans were left to look after their own sick families with the assistance of missionaries of different denominations and pāpālangis  to organize nursing, feeding and the burying the bodies.[18] A party of sailors from a British boat anchored in Nuku’alofa assisted with digging graves and a long trench for common burial.[19] One or two Tongan ministers stayed in the grave yard to pray for the bodies carried in quick succession for burial.[20]

Coo Baker (daughter of the late Shirley Baker) assisted with looking after the sick in Nuku’alofa. [21]Roger Page drove about the villages, distributing medicine and inspiring hope and courage to the sickly population[22]. Carl Riechelmann rode daily to help others and eventually died. Englishman Alfred Cowley brewed soup for the sick.[23] The effects of the epidemic left a lot of Tongans fearful for it’s reoccurrence.[24]

The Tongan elite who passed away as a result of this  epidemic included  Queen Takipo (second wife of HM King George Tupou II),  4 of the 32 nobles, three Catholic priests, Governor of Ha’apai (Maeakafa), Mrs. Watkin and Tupou Moheofo, the mother of Queen Salote’s half brother[25].

As a result of lessons learnt from this epidemic, Queen Salote supported the establishment of the Department of Health (now Ministry of Health) in 1919 with free medical attention for all. Queen Salote also appointed Dr. C.M. Dawson as the Chief Medical Officer. She also supported the establishment of the Central Medical School in 1929 in Suva, where all Pacific Islanders will receive basic medical trainings.[26]

Measles epidemic – 1936

The second measles epidemic struck Tonga was traced to a case on the M.V. Tuitoga which arrived in Tonga from Fiji on 6 June 1936[27]. Tonga did not have any procedures in place to deal with an epidemic[28]. The Chief Medical Officer of Tonga quarantined the crew and labourers who were on the vessel working cargo but to no avail[29]. The infection had already spread in Tonga[30].

There was 11,023 notified cases among the Tongan population of about 49,000, however the statistics remain incomplete[31]. For instance at Nafualu College 334 boys of 347 developed measles[32]. Of the remaining 16, 6 were from Samoa and 7 were from Fiji[33]. It was presumed that the boys had measles at a young age and were therefore immune to the virus[34].

This epidemic resulted in a lot of premature labour amongst the pregnant women in Tonga. Dr. Ruth Carrick reported of the Tongans attitudes during the epidemic: “No difficulty was experienced with the Tongans as the senior members of various families made use of their experience in the past and were therefore ready to following instructions. As measles was an introduced disease fakatapa or native medicine was of no avail and so the people wanted advice”[35].

Tuberculosis, Polio epidemic – 1950s

During he 1950s there were several epidemics of enteric fever and skin diseases due to lack of clean water for bathing in Tonga.[36] Tuberculosis was also a public health problem in Tonga, in 1958 there were 155 new cases registered at Vaiola Central Registry and 25 deaths in that year[37]. In 1958, the polio epidemic saw 172 paralytic cases and 15 deaths[38].

Lessons learnt

Reading the literature of the history of epidemics in Tonga, we learn a few lessons –

(1)  The importance of having legal mechanism in place to combat monitor and regulate a possible epidemic/pandemic outbreak in Tonga. The late Shirley Baker saw the importance of having a   Quarantine Regulations in place in the 1800s to combat a possible epidemic/pandemic.

(2) The importance of having an emergency plan in place, which includes looking at having a mass     grave in place for possible mass deaths as a result of an epidemic/pandemic outbreak.

(3) The importance of social distancing and quarantine to avoid possible cases of epidemic/pandemic outbreak.

(4)  The importance of strong governance, support and communication with the general public.

What are the current legislative measures in place to protect Tonga from a pandemic or epidemic?

With the current threats of the COVID-19 pandemic worldwide. Tonga has the following legislation in place to regulate the Kingdom in the case of an epidemic/pandemic outbreak –

(1)       Act of Constitution of Tonga [Cap 2]

The Minister of Finance with the consent of Cabinet can use fund paid out of the Treasury without the prior vote of the Legislative Assembly in cases of a dangerous epidemic or a similar  emergency[39].

(2)       Emergency Management Act 2007

This Act defines an event to include “an infestation, plague or epidemic.[40] A State of Emergency   can be declared by the Prime Minister if it is necessary to prevent or minimise the loss of human life[41]. Such declaration can remain in force for 28 days[42].

(3)       Emergency Fund Act 2008

The definition of an “event” includes “a infestation, plague or epidemic”.[43] The purpose of this     fund is to provide timely and efficient relief and reconstructions in any emergency.[44]

(4)       Public Health Act 2008        

This Act allows the Minister of Health to Declare a Public Health Emergency if the Minister of  Health is satisfied that it is necessary to exercise the powers to prevent or minimise serious adverse effects on human life[45].

(5)       Tonga Fire and Emergency Service Act 2014

 This Act defines emergency to include “an infestation, plague or epidemic”.[46] The Tonga Fire and Emergency Services can provide emergency response services for the protection of life and   property before, during and after an emergency which includes an epidemic[47].

(6)       His Majesty’s Armed Forces Act 1992

This Act defines “civil emergency” to include an epidemic or outbreak of disease.[48] The Board at   the request of the relevant civil authority may direct the Force or part or unit of the Force to  provide support to the civil authorities.

The Ministry of Health and the Ministry responsible for emergency management also have emergency plans in place for the possible outbreak of epidemics/pandemics.

Is Tonga ready for this pandemic?

No country can ever be fully prepared to comprehend the implications of a pandemic, let alone a small island developing state like Tonga, as we have seen in the history of epidemics in our country. However, Tonga is a deeply rooted Christian country with strong traditional cultural value of community love and support. There is no doubt that the Tongans faith in the Lord will bring them through this challenging time in the world.

My hope is that Tonga will learn from it’s past experiences with epidemics, to ensure better and more efficient planning to avoid further complications.

Special thank you for Dr. Mapa Puloka for sharing your bibliography from your Public Health Epidemiology Research.

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes .

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[1] ‘Pandemic vs Epidemic’ (12 March 2020) https://www.merriam-webster.com/words-at-play/epidemic-vs-pandemic-difference (Accessed 5 April 2020).

[2] ‘Pandemic vs Epidemic’ (12 March 2020) https://www.merriam-webster.com/words-at-play/epidemic-vs-pandemic-difference (Accessed 5 April 2020).

[3] ‘Pandemic vs Epidemic’ (12 March 2020) https://www.merriam-webster.com/words-at-play/epidemic-vs-pandemic-difference (Accessed 5 April 2020).

[4] Noel Rutherford, ‘Shirley Baker and the Kingdom of Tonga’ (1966) 35.

[5] Noel Rutherford, ‘Shirley Baker and the Kingdom of Tonga’ (1966) 284.

[6] Noel Rutherford, ‘Shirley Baker and the Kingdom of Tonga’ (1966) 284.

[7] Noel Rutherford, ‘Shirley Baker and the Kingdom of Tonga’ (1966) 434.

[8] Noel Rutherford, ‘Shirley Baker and the Kingdom of Tonga’ (1966) 434.

[9] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 325.

[10] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[11] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[12] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[13] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[14] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[15] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[16] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[17] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 53.

[18] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 54.

[19] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 54.

[20] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 54.

[21] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 54.

[22] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 54.

[23] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 55.

[24] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 56.

[25] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 56.

[26] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 58.

[27] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 37.

[28] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 37.

[29] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 37.

[30] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 37.

[31] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 37.

[32] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 38.

[33] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 38.

[34] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 38.

[35] Margaret W. Guthrie, ‘Misi Utu Dr. D.W. Hoodless and the development of medical education in the South Pacific’ (1979) 38.

[36] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 263.

[37] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 263.

[38] Elizabeth Wood-Ellem, ‘Queen Salote of Tonga – The Story of an Era 1900-1965’ (1999) 263.

[39] Act of Constitution of Tonga (Cap 2), Clause 19.

[40] Emergency Management Act 2007 (Tonga) s.2.

[41] Emergency Management Act 2007 (Tonga) s.32(1).

[42] Emergency Management Act 2007 (Tonga) s. 32(2).

[43] Emergency Fund Act 2008 (Tonga) s. 2.

[44] Emergency Fund Act 2008 (Tonga) s. 5(1).

[45] Public Health Act 2008 (Tonga) s.164(1).

[46] Tonga Fire and Emergency Services Act 2014 (Tonga) s.2.

[47] Tonga Fire and Emergency Service Act 2014 (Tonga) s.4.

[48] His Majesty’s Armed Forces Act 1992 (Tonga) s. 7(2).

Disclaimer: This blog is for information purposes and it shares the author’s own personal views or based on the author’s research. It is not to be used or replicated for research purposes .

New Communication Laws in Tonga

Citation: Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm .

Pesi Fonua published an article entitled ‘Tongan Parliament Passes New Communications Bills’. This article focused on the passing of two new Communications Bills to regulate Communications in Tonga in 2015. Fonua explained that  these two Bills were passed unanimously by the Legislative Assembly, despite the members not having sufficient time to read the Bills[1]. The Bills were submitted by the Minister responsible for Communications Hon. Siaosi Sovaleni, whom stated that the Bills were ‘vital for the development of Tonga’s communications industry’[2].

Fonua indirectly expressed his concerns that the Bills were not properly considered by the Legislative Assembly nor was it consulted with the relevant stakeholders before it was submitted to the Legislative Assembly[3]. Hon.Sovaleni justified the urgency of the Bills in Assembly, by stating that the Communications Bill in Tonga is 15 years old and it needs to be updated to cater for the advances of technology[4].

However Fonua has valid concerns, these two Bills brings a lot of impact and substantive changes to the Communications industry. For instance, the  Communications Bill 2015  is to replace the Communications Act 2000  to regulate all communications services in Tonga.[5]  This Bill consists of 189 provisions as opposed to 127 provisions in the former Communications Act 2000,  the new Bill retains 75 sections from the former Act. The Communications Commission Bill 2015  is to introduce a regulatory body to regulate communications services in Tonga.

Firstly, the principal objectives of the Communications Bill 2015 is to establish a communications and regulation framework[6]; establish powers and functions of the Ministry of Communications[7], Regulator[8], procedures for the administration of the Act[9]; establish and promote fair and sustainable competition  in the supply and installation of communications services[10]; promote and protect the interest of consumers of communications services[11], promote efficiency of licensees[12], and ensure safety[13], quality and international compatibility[14].

In addition, Fonua raised concerns that sections 106 , 107 and 108 of the Bill limits an individual’s rights to privacy and freedom of expression[15]. Section 106 provides for take down notices, this allows the Minister responsible for Communications  upon a complaint or its own initiative [16]to issue a written take down notice directing the hosting service provider to take down any prohibited content.[17]in response to a complaint or its own initiatives. Prohibited content refers to indecent or obscene contents[18];  displays of excessive violence[19]; blasphemous[20]; treasonous or seditious[21]; defamatory[22] or contravenes the laws of Tonga[23].

Fonua stated that section 106 will allow anyone to report to the Ministry of Communication to take down a website that is giving out information that is decent for the community, and the Ministry can simply take it down[24]. Hence , this  is seen to breach a person’s rights to freedom of expression. Any person can complaint that a hosting service provider is hosting prohibited content, however the Ministry must first investigate the issue to identify whether the materials reported are prohibited contents before it can make a decision to take down that particular content[25]. However, this section is still consistent with Clause 7 of the Constitution of Tonga which provides for freedom of the press. This Clause allows all people to speak, write and print their opinions with no restrictions, as long as it does not contravene the laws of defamation, official secret, laws for the protection of the King and royal family[26]. Such opinions are not to post a threat to public interest, national security, public order, morality, cultural traditions, privileges of the Legislative Assembly and contempt of court.[27]

Furthermore Fonua raised concerns over section 107 of the Bill, section 107 of the Bill provides for opt-out filtering[28]. This section allows internet service providers to offer a family friendly filtering to families to deny and restrict access to content that is unlawful to possess, access and distribute  according to the law of Tonga[29]. However these features can be removed upon application to the internet service provider[30]. The internet service provider must verify that the customer is at least 18 years of age.[31]

Fonua stated that this provision allows the Minister mandatory filtering of internet content[32]. However it is important to note that the family friendly filtering is discretionary on a family. A family is not forced to have family friendly filtering, but this option is legislated to create an obligation with the internet service providers to provide this option for families. This is to protect children from having access to illegal and prohibited materials online.

Moreover Fonua raised concerns over section 108 of the Bill, section 108 of the Bill provides for mandatory filtering it allows the Ministry of Communications to ‘…determine a scheme to prevent access to child pornography..’[33]. Child pornography refers to any materials that shows a child engaged in sexual conduct[34];  a person engaged in sexual conduct with a child[35] or images of a child engaged in sexual conduct.[36] A child in this context is considered to be under the age of 14.[37]

Fonua stated that this provision will allow Commission to direct the Tongan service providers like Tonga Communications Corporation to block certain websites for the safety of the children. Fonua implies that mandatory filtering is an invasion of the persons privacy and right to information. However, the publication[38], production[39] and possession of child pornography in Tonga[40] is a criminal offence liable to a fine not exceeding $100,000[41] or imprisonment for a period not exceeding 10 years[42]. Hence child pornography is illegal in Tonga, so this provision is to assist with reducing the cases of child pornography. The Bill provides that the Ministry is to take into account Tongan cultural value and national values[43]; its impacts on internet service providers[44] and transparent schemes of access[45].

In addition, Fonua expressed concerns about the passing of the Communications Commission Bill 2015.  This Bill introduces a regulatory body called the Communications Commission to regulate and monitor communications services in Tonga[46]. There will be 4 members of the Commission, a Chairperson[47]; Deputy Chairperson[48]; and two other members whom one should be an ICT expert[49]. The members of the Committee will be responsible for the exercise of the powers[50], functions[51] and duties of the Commission[52]. The appointments committee for the commission consists of the Minister responsible for Communications[53], an ICT Expert[54] and a representative of the industry consumers[55]. Fonua’s concerns is that this is a newly independent body that is established to do the functions of the Ministry of Communications.

Nonetheless, the establishment of a separate Communications Commission is a new step for Tonga. The Commission is identified to be independent, so that it will be able to make independent decisions about Communications in Tonga. The Commission will act as a Regulator with functions to advise the Ministers on all matters[56], monitor and report to the Minister of significant issues[57], responsible for the control and administration of licensing[58] amongst others. The Commission has the power to start a proceeding for recovery and issues order with remedial directions[59]. It also has the power to set the fees for the applications required under the Communications Bill 2015[60].

Taking into account the discussion above, Fonua has raised valid issues about whether such Bills are giving too much powers to the Ministry of Communications. These communications mechanisms are fairly new to Tonga, and its implementation will be a different process. The relevant stakeholders like local service providers, media outlets and the general public were not properly consulted when this Bill was drafted. Only time can tell whether the Tongan service providers have the necessary means to meet the demands of the Communications Bill or the Communications Commission Bill.

However Tonga is not the only Pacific Island state that is taking preventative measures on communications. The Nauruan government recently introduced Cybercrime Act 2015  to criminalize child pornography, with a penalty of 10 year imprisonment[61]. This Act also imposes a monitoring obligation on service providers to store information that indicates illegal activity.[62] Nauru’s new Act was also met with uproar from the public, who claimed that the Act limits freedom of speech.[63] The Nauru government responded by stating that the limitations is to protect children from being vulnerable on cyberspace.[64]

In conclusion, contrary to Fonua’s implications that the Communications Commission Bill 2015  and the Communications Bill 2015 limits freedom of speech and rights to privacy. I believe that the two Bills enhances Tonga’s ability to ensure that Tonga’s communications services are up to date , so as not to compromise and leave our children and people in general vulnerable to online attacks. The Bills affords people their rights, at the same time provides them with a protective mechanisms. It also protects the country from cyber communication influences and harm. Tonga is not alone in the Pacific with this concern. However it is important that the Tongan government notes the importance of consultations to discourage misunderstanding when laws are being passed.

*Note

The Communications Act 2015 & Communications Commission Act 2015 were passed by the Legislative Assembly on 6 October 2015 and it received Royal Assent on 18 February 2016. The Communications Act 2015 was proclaimed into force by Cabinet on 1 March 2017 in accordance to section 1(2) of the Communications Act 2015.

[1] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[2] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[3] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[4] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[5]Communications Bill 2015 (Tonga) Long title.

[6] Communications Bill 2015 (Tonga) s.5(a).

[7] Communications Bill 2015 (Tonga) s.5(b).

[8] Communications Bill 2015 (Tonga) s.5(c).

[9] Communications Bill 2015 (Tonga) s.5(d).

[10] Communications Bill 2015 (Tonga) s.5(e).

[11] Communications Bill 2015 (Tonga) s.5(f).

[12] Communications Bill 2015 (Tonga) s.5(h).

[13] Communications Bill 2015 (Tonga) s.5(i).

[14] Communications Bill 2015 (Tonga) s.5(j).

[15] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[16] Communications Bill 2015 (Tonga) s.106(1).

[17] Communications Bill 2015 (Tonga) s.106(2).

[18] Communications Bill 2015 (Tonga) s.98(a).

[19] Communications Bill 2015 (Tonga) s.98(b).

[20] Communications Bill 2015 (Tonga) s.98(c).

[21] Communications Bill 2015 (Tonga) s.98(d).

[22] Communications Bill 2015 (Tonga) s.98(e).

[23] Communications Bill 2015 (Tonga) s.98(f).

[24] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[25] Communications Bill 2015 (Tonga) s.106(2).

[26] Act of Constitution of Tonga [Cap 2] (Tonga) Cl.7(1).

[27] Act of Constitution of Tonga [Cap 2] (Tonga) Cl.7(2).

[28] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[29] Communications Bill 2015 (Tonga) s.107(7)(a).

[30] Communications Bill 2015 (Tonga) s.107(3).

[31] Communications Bill 2015 (Tonga) s.107(4)(a).

[32] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[33] Communications Bill 2015 (Tonga) s.108(1).

[34] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(i).

[35] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(ii).

[36] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(iii).

[37] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(b).

[38] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(a).

[39] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(b).

[40] Criminal Offences Act [Cap 18] (Tonga) s.115A (1)(c)

[41] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(i).

[42] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(i). Corporations are fined not exceeding $250,000 Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(ii).

[43] Communications Bill 2015 (Tonga) s.108(3)(b).

[44] Communications Bill 2015 (Tonga) s.108(3)(d).

[45] Communications Bill 2015 (Tonga) s.108(3)(e).

[46] Communications Commission Bill 2015 (Tonga) Explanatory Notes.

[47] Communications Commission Bill 2015 (Tonga) s. 7(1)(a).

[48] Communications Commission Bill 2015 (Tonga) s. 7(1)(b).

[49] Communications Commission Bill 2015 (Tonga) s. 7(1)(c).

[50] Communications Commission Bill 2015 (Tonga) s. 7(2)

[51] Communications Commission Bill 2015 (Tonga) s. 7(3)(b).

[52] Communications Commission Bill 2015 (Tonga) s. 7(3)(a).

[53] Communications Commission Bill 2015 (Tonga) s. 8(2)(a).

[54] Communications Commission Bill 2015 (Tonga) s. 8(2)(b).

[55] Communications Commission Bill 2015 (Tonga) s. 8(2)(c).

[56] Communications Bill 2015 (Tonga) s. 16(a).

[57] Communications Bill 2015 (Tonga) s. 16(b).

[58] Communications Bill 2015 (Tonga) s. 16(d).

[59] Communications Bill 2015 (Tonga) s. 17(c).

[60] Communications Bill 2015 (Tonga) s. 18 (1)(a).

[61] Cybercrime Act 2015 (Nauru) s.14.

[62] Cybercrime Act 2015 (Nauru) s.37(1).

[63] ‘Nauru government criticised over new law limiting free speech’(2015) http://www.abc.net.au/news/2015-05-14/nauru-introduces-law-curbing-dissent/6469202 (Accessed 15 November 2015).

[64]  ‘Nauru government criticised over new law limiting free speech’(2015) http://www.abc.net.au/news/2015-05-14/nauru-introduces-law-curbing-dissent/6469202 (Accessed 15 November 2015).

Disclaimer: This blog is for information purposes and it shares the authors own personal views. It is not to be used for research purposes. I also do not own any of the images on this blog.

Pacific Legal Policy Twinning Program

Citation: Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015).

The Pacific Legal  Policy Twinning Program, is an annual program conducted by the Australian Attorney General’s Department[1]. The program involves two months of intensive training in the Attorney General’s Department[2]. It is aimed at building the capacities of Pacific Island law officials to efficiently develop and implement good policy in order to combat crimes and corruption. It is focused on improving community and regional stability and security[3].

The program is focused on training senior officials from different Pacific Island Countries to develop legal policies and conduct legal policy development training[4]; conduct efficient legal researching and writing skills and conduct efficient project planning[5]. This program is competitive amongst law officials from different Pacific Island Countries, whom apply for the program with a proposed policy project to work on.

In addition, the program caters for two successful candidates to participate in the program, whom are commonly referred to as the “twins” to reflect the close collaborations between the Attorney General’s Department and their respective countries. The program consists of two major components, the first part of the program is focused on training the twins on the Legal Development Policy Course, and training the twins the train the trainer component of the Legal Policy Course. This is to allow the twin to return to their home country and conduct the course to other h officers. The second part of the program is focused on the twin’s proposed policy project. The twin is assigned a supervisor, who will closely assist the twin on the day to day basis of the project. The twin is also assigned a mentor, who is a senior public servant within the Attorney General’s Department with expertise in the area of the twin’s policy project. The mentor can also discussed careers paths and options with the twin. The twins at the end of the program are required to deliver the policy development course back in their home country and also implement to some extent their policy projects.

I had the privilege of participating in the program. Interestingly, this program was not always focused on policy. The twinning program was initially focused on legislative drafting, hence the twin would be based in the ACT drafting office, whereby they will be closely supervised and trained with their drafting skills. The program was revised in 2014 to focus on policy as a result of the outcomes of the 3^rd Meeting of the Pacific Legislative Drafters’ Technical Forum.

The 3^rd Meeting of the Pacific Legislative Drafters’ Technical Forum recognized that there is a need to improve the quality of policy for legislative proposals.[6] As a result the Attorney General’s Department in Australia developed the policy course to assist Pacific Island Countries with their policy formulation. This course has since been delivered in Australia, Solomon Islands, Samoa, Tonga, Fiji Tuvalu and Nauru.[7]

The Legal Policy course simplifies the policy process into a memorable jargon “OUTCOME”,  each letter provides a step for legal policy development. For instance “O” refers to Obtaining information about the problem[8], “U” refers to uncovering the key stakeholders[9], “T” refers to thinking ahead  and planning[10] ,“C” refers to creating available option for your policy[11],  “O” refers to Outreach[12], which refers to consultations with the community[13], “M” refers to making it happen or implementing the policy in the form of a legislation[14] and “E” refers to evaluation and monitoring of the policy to identify whether it is effective or not[15].

The Pacific Crime and Policing Section of the Attorney General’s Department facilitates the course, and any Pacific Island country can request the course to be delivered in their country. The course can be delivered as part of law officials continued legal education, or it can be focused solely on policy makers only. AGD works closely with the Pacific Islands Law Officers Network (PILON) in communicating to PILON members about policy issues and whether they would require assistance.

These attachments, like the Legal Policy Twinning Program is a way of enhancing the skills of legal professionals across the South Pacific. It allows legal professional to be exposed to a more professional working environment as compared to their individual countries, to examine and understand how work operates in Australia. Such programs assists with the development of legal professionals writing and legal research capabilities, by exposing them to trainings conducted by professionals. The trainings offered are not only limited to policy, research and writing, but it also offers trainings on how to conduct effective negotiations, understand the basic essentials required of a manager, understand how to effectively conduct presentation to communities. Such skills will help build the capabilities of the legal professionals involved. Hence upon their return to their home countries, these skills can be passed on to other officials, which increases the effectiveness and proficiency of work.

In addition the Legal Policy Twinning Program assists young professionals to create a “network “with other experts that may assist them and their countries with different projects. As part of the program, AGD also connects young professionals with academics in the Australian National University to encourage networking with academics. This gives young professionals an opportunity to be exposed and further develop their interests in certain areas, it also encourages young professionals to conduct research and also consider publication. The Australian National University Pacific Division encourages Pacific Islanders to conduct and publish research on different areas of law. This is a great opportunity for Pacific Islanders to use their projects to publish a research paper. Hence young professionals not only complete work for their countries, but they can also utilize their findings to publish a paper with their management’s consent.

Moreover the Twinning Programme allows young professionals to focus on their projects on issues of concerns for their countries. Due to the limited legal staff in the Pacific, most young professionals cannot focus on only one task. However participating in the twinning program affords them proper time and resources to carefully analyse the main issues on their projects. But at the same time, it allow them to learn and understand how the Australian government works. For instance , as a twin we were taken to observe Court proceedings, meet with the Chief Justice, Director of Public Prosecutions, Chairperson of the Law Reform Commission and other relevant stakeholders. This allowed us to learn how they conduct their work. This gave us an opportunity to identify best practices for our individual countries to follow. In addition, we are encouraged to write articles for the Talanoa Newsletter, which is published by the Pacific Islands Law Officers Network (PILON) to share our experiences with other countries.

However, such long term attachments can be challenging to young professionals at time due to the differences in practice and conflicts in standards. For instance, at the course of the program, the AGD may try and impose standards on Tonga that cannot be met, due to lack of resources or cultural aspects. Hence it is important as a young professional conducting long term attachments to keep in mind that learning new things does not mean that you can easily change the mindset and the way things are conducted in your individual countries.

In addition, it is important for young professionals to inform their mentors that their countries conduct things in a different way. It is important that they learn about different structures and ways to conduct work. But it is also important to keep in mind that there is a difference in culture, society and availability of resources. Young professionals should only look at ways of improving their current systems, but not reforming it entirely. Hence it is important that you own the work that you do whilst on attachment.

Moreover, as a former participant of the legal policy train the trainer, I feel that I do not own the work . For instance, with regards to the train the trainer legal policy development program, we have to conduct the training using standard PowerPoints and notes developed by AGD. It is always difficult to deliver work that is not your own. Trainings in Tonga need to be conducted in Tongan and English, hence it is important to include Tongan words on the PowerPoints for clarifications.

The twinning programme provides invaluable skills and resources that one cannot find in their own under-developed jurisdiction. However the onus is on the participant to use the resources at hand wisely and with proper discretion. It is also important that young professionals return to their home countries and share their experiences with AGD. This will create a domino effect and hopefully create a culture where people work harder and conduct effective legal policy work.

However, the twinning program offered by the AGD is a very effective program, as it allows the AGD to assist developing and under-developed countries with their policies. It also provides the AGD with a good position to indirectly influence other Pacific Island Countries with their policies and also to keep in check what these developing islands are doing. For instance the OUTCOME  steps for effective policy has been adopted in many countries like Tonga as a policy tool, hence it will provide uniformity in policy development in Pacific Islands.

In addition, the train the trainer programs allows the AGD to outsource itself. It is trying to encourage the Pacific Islands to own and conduct the program. Most Pacific Islands do not have policy training, hence the course will provide  an efficient means to combat this. The assistance provided by the AGD is very strategic, as it does not involve them conducting training continuously to many people. But they invest in a certain number of persons, and rely on them to conduct the delivery of the course. In a way, this allows participants in the Pacific Islands to feel that their own is conducting the training and its not foreign influence.

The Pacific Legal Twinning Program is an amazing opportunity for young professional to enhance their skills and knowledge through professional mentoring and assistance. It also gives them an opportunity to create networks and make positive changes upon their return to their home countries. These changes can increase the professionalism and create excellent deliverable outcomes for their home countries. Hence improving the ways Pacific Island societies can write policies and draft laws. A properly designed policy, will enact positive laws which will be beneficial to the society, decreasing crime and improve the productivity of society, which is what the Pacific Crimes and Policing Division is working towards[16]. This program will become an invaluable experience for a young professional and it should encourage  professionals to invest more and work harder for the benefits of their societies.

[1] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[1].

[2] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[2].

[3] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[3].

[4] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[4].

[5] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[5].

[6]‘Draft Regional Action Plan for sustainable legislative drafting capacity building in Forum Island Countries’(2012)  http://www.pilonsec.org/images/stories/Documents/bregional_action_plan.pdf (Accessed 20 November 2015) 3.

[7] Dr. Marie Wynter, ‘Building institutional effectiveness- The Pacific Legal Policy Twinning Program’ Talanoa Newsletter (Apia, Samoa) 3 March 2015, 6.

[8] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[9] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[10] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[11] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[12] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[13] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[14] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[15] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[16] ‘Pacific crime and policing assistance’(2015) http://www.ag.gov.au/Internationalrelations/InternationalLegalAssistance/Pages/PacificCrimeAndPolicingAssistance.aspx (Accessed 20 November 2015).

Disclaimer: This blog is for information purposes and it shares the authors own personal views. It is not to be used for research purposes. I also do not own any of the images on this blog.

Convicts dumped in Tonga

Citation: ‘Convicts dumped in Tonga by New Zealand’ (2015) http://www.radionz.co.nz/international/pacific-news/289409/convicts-dumped-in-tonga-by-nz.

The Radio NZ website published an article entitled ‘Convicts dumped in Tonga by New Zealand’. The  article focused on discussing recent deportee Mr. Patrick ‘Unga’s manslaughter conviction in Nuku’alofa. Mr. ‘Unga was convicted in New Zealand in 2003 for murdering his fiance, after serving his time he was deported to Tonga in 2014, and within a few months he re-offended again.

The article discussed that New Zealand and other foreign countries are deporting serious Tongan offenders from their countries to Tonga, and as a result, these offenders re-offend and commit serious crimes like ‘Unga’s case. The Minister of Justice noted that these offenders are deported to Tonga with no notification to the Tongan immigration, Ministry of Justice or other relevant stakeholders. They are simply ‘dumped back without any notification’.

Deportation is defined by the International Organization for Migration as ‘the act of a State in removing a non-citizen from its territory after refusal of admission or termination of permission to remain.’ Foreign countries have different legislation stating the grounds for deportation, for instance in New Zealand, deportation orders can be made by the Minister of Immigration of Governor General under the Immigration Act 2009  on the grounds that a person is threat to national security or is convicted of a criminal offence.  Interestingly Mr. ‘Unga was sentenced in the High Court of New Zealand to life imprisonment, and the judge noted that he had no power to deport him, deportation will be based on the Minister responsible for Immigration’s discretion. Hence Mr. ‘Unga was later removed and deported to Tonga under the Immigration Act 2009  after 10 years of serving his term.

Majority of Tongan persons deported to Tonga are males in their 30’s.The most common offences committed by deportees are common and aggravated assault, robbery and theft and drugs.Most of the deportees have noted that they did not know their crimes will result in their deportation. Some of the deportees were permanent residence of the United States, New Zealand or Australia, but their residence was revoked upon the commission of the crimes. However, this is different if you were an intentioanl overstayer, you know that you will be deported. For instance, Mr. ‘Unga discussed in this article was an overstayer in New Zealand when he committed his first murder.

In addition, the deportation of individuals affects the Pacific Islands, as it leaves Pacific societies vulnerable to their crimes. For instance as stated in the article, there is no mandatory legislated process for dealing with deportees in Tonga. Deportees arrive in Tonga a free man, with no report to the police or immigration. It also puts Pacific Islands at risk of increased crime rates, because of the presence of more talented and prominent criminals in the country. There is insufficient evidence to support this statement, but it is evident in Tonga that Mr. ‘Unga is not the only deportee to re-offend. For instance Rex v Ngaue (Unreported, CR 98/11, Shuster J, 20 January 2012) the Defendant Ngaue, a deportee was charged and pleaded guilty to possession of an illicit drugs cannabis. The defendant informed the Court that he understands drugs are illegal, but he used it to ease pain from medical treatments.

However, it is important to note that deportations affects the life of the deportee. Deportees usually migrate overseas at a young age, between the ages of 5 to 10.Hence they cannot speak the Tongan language or they do not have any relatives in Tonga when they are deported.Some of the deportees were already married with children when they got deported, hence they are separated from their families and their families eventually break up or the wives would move back to live in Tonga with the deportee.

In addition, deportees are stigmatized when they return to their home countries, and they are labelled as “deportees”or “tipota” (this Tongan phrase is literally translated to “teapot”).Deportees are stigmatized  as being bad and continuing with the illegal activities.As a result deportees are the first to be blamed when a crime occurs in the village they live in. There is limited employment opportunities for deportees in Tonga and their stigmatization does not help.Moreover, deportees are watched consistently by the Tongan society and most of them are stigmatized because of their physical appearance for instance heavy tattoos could be viewed as unsafe.

It is important to note that these deportees can be leaving behind a wife and children.It will be very difficult for families that live apart to survive. As a result the child or children will grow up with one less parent. Children can also be stigmatized in school because they have a deported parent, and children can become rebellious and resistant to authority.

The lack of employment and financial support is usually the main cause of a deportee’s reoffending. For instance in the case of Rex v Kali (Unreported, CR57/07, 10 August 2007, Chief Justice Ford), the accused Kali was a deportee who was in charged taking part in the riots stealing from the shops in Tonga on 16 November 2006. During his sentencing, the Chief Justice noted that Kali was an overstayer in New Zealand who got deported to Tonga as a result of assaulting his girlfriend. He moved on to be convicted and sentenced to 4 years imprisonment for importing marijuana from Fiji on a fishing boat, then he escalated to riotious behaviours. This case reflects that deportees do not learn their lesson from being deported, some continue to offend and re-offend.

Due to the immense cultural shock, language changes and the introduction to an unfamilar environment, most deportess continue to result to drugs and alcohol abuse. This eventually leads them to re-offend and threaten the safety of individuals in society to unlawful acts of violence.

So what has the Tongan government done to combat this issue? Well the Tongan government has conducted a National Workshop on Deportees, to assist with the reintegration of deportees to Tongan society. The Tongan government has  Civil Society Organisations (CSOs) that provide programmes to assist deported persons, this is the Ironman Ministry Incorporated and the Foki ki Ápi  Deportation Reconnection Programme and the Tonga Lifeline Crisis, administered freely by the Free Weslyan Church.These two services offer deportees an opportunity to freely and openly talk about their situations and it provides deportees with counselling services.

How can Tonga support deportees? Tonga can support deportees by developing plans with relevant stakeholders to provide a program to address the employment and educational needs of deportees.Tonga should also consider developing closer networks and relationships with the foreign countries like New Zealand , Australia and United States, to ensure that it is aware of the number of deportees coming to its shores annually.

In conclusion foreign countries tend to believe that deporting deportees to their home countries solves the problems. However it does not, deportees create a new form of culture and more problems for their receiving home countries. The deportation of an individual does not affect only the life of the offending deportee but it also affects the lives of their immediate and close relatives. It also affects the lives of persons living in the receiving country as they are in fear that these deportees might re-offend. Hence there is a need for Tonga to strongly look at rehabilitation classes for deportees and social support for them to allow them to feel human, responsible and hopefully decrease rates of re-offending .

Disclaimer: This blog is the author’s personal opinions and is not to be used for research purposes.

First impeachment case in Tonga in 50 years

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).

I recently did some research on the impeachment process in Tonga and came about an interesting article on the Tongan Legislative Assembly website. The article was entitled ‘Hon. Lavulavu survives impeachment notion’. The article was focused on discussing the outcome of the impeachment charges made against member of Parliament, the Minister responsible for Infrastructure and Tourism Hon. Étuate Lavulavu.

Lavulavu’s impeachment charges was tabled into Parliament by Vava’u Noble Representative No.2 Lord Tuílakepa earlier in August this year.[1] The accusation for impeachment included nepotism and fraudulent practices with government equipment, human resources and finances.[2]

Impeachment to those who do not know is the act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[3] But the grounds on which an official can be removed do not have to be criminal in nature.[4] They usually involve some type of abuse of power or breach of the public trust.[5] Impeachment was first used in the British political system in the second half of the 14^th century.

The grounds for impeachment of any Minister or representative of the nobles and of the people  is laid out in clause 75 of the Tongan Constitution:

1. breach of the laws;
2. the resolutions of the Legislative Assembly;
3. maladministration;
4. incompetency;
5. destruction;
6. embezzlement of Government property; or
7. the performance of acts which may lead to difficulties between Tonga and another country.

The impeachment process in the Tongan Legislative assembly in set out in Rules 87 to 96 of the Rules of Procedure of the Legislative Assembly of Tonga.  Any member of the Legislative Assembly can move the Assembly to impeach another member at his own volition or as a result of a written complaint made by any Tongan subject.[6] The following diagram summarises the impeachment process in Tonga according to the Rules of Procedure:

The person impeached can be represented by legal counsel and attend his own trial.[7] The Assembly can appoint the member who made the motion for impeachment to prosecute[8] and prepare the articles of impeachment.[9] The Member can also engage legal counsel with the approval of the Assembly.[10]

The article explains that the impeachment charges was a result of complaints from former Ministry of Infrastructure employees that Lavulavu has misused public funds.[11] The Standing Privilege Committee found and recommended that there was sufficient evidence for a prima facie case on 19 August 2015. The next step was for the Assembly to vote, whether a proceeding for impeachment should continue.

However the Assembly took another 3 months for it to vote on this impeachment case. During the 3-month period Lavulavu has taken different measures to expunge charges. For instance, he appealed that the Standing Committee on Privileges members be replaced by his own nominees.[12] However this motion was withdrawn as a result of pleas from the Prime Minister.[13] He continued to threaten and call the Speaker of the House a “dictator”.[14] Even before the Standing Committee on Privileges presented their cases that there is a prima facie case against Lavulavu, he had managed to delay their report t obey read. For instance, Lavulavu requested that he have time to respond to the allegations. As a result he produced two responses which he later withdrew.[15] The members of the Standing Committee on Privilege was Lord Fusitu’a as chairperson, Minister of Justice, Hon. Vuna Fa’otusia, Minister of Finance, ‘Aisake Eke, Speaker of the House, Lord Tu’ivakano, Lord Tu’iha’angana and People’s Representative Mateni Tapueluelu.
However, this voting process was delayed 5 times as a result of as a result of pleas from Lavulavu and support from the Prime Minister to allow Lavulavu to respond to the allegations made against him.[16] At the course of the consistent battles in the Assembly regarding this impeachment case, the Prime Minister raised concern that Lavulavu as a result of the case might loose his seat in Parliament.[17]

Taking into account the procedures discussed above, Lavulavu managed to stall the process with different excuses. For instance, delay was always granted to allow him to prepare a defence for his case under natural justice. However at the end he never presented a defence and he never sought private legal representations despite the fact that he was entitled to it.

In addition, the article notes that the Prime Minister plead that the matter be dealt with by Cabinet, as impeachment is an Executive decision. This is not part of the procedure as laid out by the Constitution and the Parliament Standing Orders. The Constitution expressly states that the impeachment proceedings are to be presided over by the Chief Justice who decides on questions of law, whilst the final judgement and the questions of fact are all determined by the Legislative Assembly.[18]

Moreover, the article notes that Lavulavu had misinformed the  Assembly, by stating that he was never given an opportunity to respond. However he did respond, but he had withdrew his response from the House. The Finance Minister confronted him with this lie, as a result Lavulavu apologized, but he did not admit to lying.

However a majority of 12 to 9 votes saved Lavulavu from the impeachment proceedings. Surprisingly 3 of the members of the Standing Committee on Privileges voted against the impeachment proceedings, this is the Minister of Finance ‘Aisake Eke, Minister of Justice Vuna Fa’otusia and Member of Parliament Mateni Tapueluelu. The rest of the member voted for the impeachment proceedings.

Lavulavu stood for the election as an independent candidate, but joined the Prime Minister’s ‘Akilisi Pohiva’s party after the elections. It comes as no surprise that all the Prime Minister’s Ministers stood up for Lavulavu against an impeachment proceeding. The Prime Minister has also shown support for him all throughout the proceedings and supported him by pushing for delays in the voting process.

Lavulavu is the first Minister to be charged with impeachment in 50 years in Tonga. There has only been one case that mentions impeachment, this is Attorney General v Fusitu’a, ‘Akauola & Moala  [1997] Tonga LR 18, the case makes references to clause 75 (impeachment) of the Constitution. However the respondents to this case did not make any submissions that the Chief Justice at the time was in breach of clause 75. Nonetheless the Pro-democracy movement did move to have the Prime Minister Prince ‘Ulukalala Lavaka Ata impeached in 2012 for failing to present audited public accounts, but this failed.[19]

Impeachment cases are very serious, it does not require an indictment like civil and criminal cases.[20] A person convicted of impeachment can no longer retain his position as a Minister[21], cabinet ministers who are elected representatives shall loose their seat in the Assembly if he or she is impeached. In addition, even the King cannot grant pardons to a person who has been charged with impeachment.[22]

Tonga is the only Pacific Island that has provisions for impeachment in its Constitution. The other Pacific Islands have provisions for “recall” and “vote of no confidence”. Vote of no confidence is the formal legal method by which a legislative body, by a majority vote, forces the resignation of a cabinet or ministry[23] whereas impeachment is the act of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[24]

Foreign jurisdictions including Australia and New Zealand do not have provisions for impeachment, however Commonwealth countries like India and the United Kingdom still provides for impeachment.

The grounds for impeachments in other jurisdictions is similar to Tonga, but other jurisdiction’s impeachment grounds includes high crimes which covers a wide range of misconducts including to misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty,  conduct unbecoming, refusal to obey a lawful order and ordinary crimes.[25]

In conclusion, the impeachment process will always be unpredictable as it is politicians judging another politicians.[26] Others may argue that Tonga’s impeachment clause is archaic and out of date. This is evident in the United Kingdom, where the last recorded impeachment case was in 1806.[27] I believe that the clause still serves a good purpose to promote transparency and accountability despite the fact that on the phase of it, we do not see transparency and accountability there. However, this provision can continue to be on Tongan laws to remind politicians that they can be held accountable for their actions. The process might appear time consuming, but it still gives the people the power to control and have a say on the people they elect to the Assembly.

[1] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[2] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[3] Black Law’s Dictionary (10^th ed, 2014) 870.

[4] Black Law’s Dictionary (10^th ed, 2014) 870.

[5] Black Law’s Dictionary (10^th ed, 2014) 870.

[6] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 87.

[7] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 91.

[8] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(a).

[9] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(b).

[10] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(3).

[11] ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 11 November 2015).

[12] Bruce Hill, ‘Impeached Tongan minister demand charges in privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[13] ‘Tonga MP wanted own committee for impeachment decision’ (2015) http://www.radionz.co.nz/international/pacific-news/282507/tonga-mp-wanted-own-committee-for-impeachment-decision (Accessed 1 November 2015).

[14] ‘Angry Tonga minister calls the speaker a ‘dictator’ (2015) http://www.cookislandsnews.com/item/53427-angry-tonga-minister-calls-the-speaker-a-dictator/53427-angry-tonga-minister-calls-the-speaker-a-dictator (Accessed 10 November 2015).

[15] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’(2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[16] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[17] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp,org/2015/10-22-10.htm (Accessed 1 November 2015).

[18] Clause 75 Constitution

[19] ‘Attempt to impeach Tonga’s prime minister’ (2012) http://www.radioaustralia.net.au/international/2005-06-24/attempt-to-impeach-tongas-prime-minister/766506 (Accessed 14 November 2015).

[20] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[21] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 51(3)(b).

[22] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[23] Black Law’s Dictionary (10^th ed, 2014,1208).

[24] Black Law’s Dictionary (10^th ed, 2014,870).

[25] United States and the United Kingdom provides for impeachment on the grounds of “High Crimes”.

[26] Bruce Hill, ‘Impeached Tongan minister demands charges in the privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[27]Impeachment’ (2014) http://www.parliament.uk/site-information/glossary/impeachment/ (Accessed 23 September 2015).

Disclaimer : Please note that this article is the author’s own personal views and it is not to be quoted for research purposes. 

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).

Laws that may only exist in Tonga

 

In order to understand some of the laws that exist in Tonga, it is important that we explore the legal system in Tonga before western influence.

The Kingdom of Tonga is the only remaining island Kingdom in the South Pacific. Unlike the other Pacific Island Countries, Tonga was never formally colonized by western powers. However before the colonial period Tonga, like many other Pacific Island Countries in the 18^th to mid 19^th century did not have an established government nor an instituted legal system. Hence the Tongan society was governed by local customs, traditions and practices which were well-constructed in the communities. These customs were largely based on royal orders and prerogative commands of their leaders and local chiefs. Such customs were subject to calamity, due to unforeseen natural causes and conflicts between the leaders and local subjects.

Tonga has one of the oldest Constitutions in the world, it was enacted in 1875 and it marks the birth of Modern Tonga. Interestingly the Tongan legal system in modern day does not recognize that Tonga has “customary laws”. But some of the provisions in the Tongan laws reflect Tonga’s customary and religious values. Let’s have a look at some of these laws –

(1) Offence not to look after an indigent person

The closest relative of a indigent (poverty-stricken) person(s) may be prosecuted for not maintaining such indigent person.

Penalties

• Court order closest relative to maintain the indigent person;
• Imprisonment not exceeding 3 months; or
• Fine not exceeding $20.

(2) Offence to be job-less

An able-bodied male person above the age of 16 years who appears to the police to have no employment or professional nor means of providing for himself or those that depend on him or have failed to plant and provide sufficient food to keep himself and those that depend on him may be charged before the court for idleness.

Penalties

• Court order for male person to plan food;
• Imprisonment not exceeding 12 months (upon re-offence); or
• Whipping not to exceed 25 lashes.

(3) Offence not to plant food stuffs

An able-bodied male person above the age of 16 years who has failed to plant sufficient food to keep himself and those who depend on him may be charged before the Court with having failed to plant food stuffs

Penalties

• Court order for male to plan food sufficient for himself and those who depend on him; or
• Imprisonment not exceeding 3 months (upon re-offence).

(4) All males are to build a dwelling house

Every male Tongan who has reached the age of 21 years shall build a dwelling house upon his allotment. Where native materials are used the dwelling house shall not be less than 3 metres in length.

(5) All dwelling houses are to be inspected

Inspection of dwellings shall be made annually and if any house is of bad repair or badly drained or in filthy condition or unfit to sleep in, the District Officer shall order the owner to pull it down and rebuild it properly.

Penalty

Failure to obey these orders is conviction to a fine not exceeding $20.

(6) Travellers may drink coconuts

Any person travelling to a distant place upon a Government road if he be thirsty may peel and drink coconuts growing by the roadside in any main road, but it is unlawful for him to carry away any nuts but only to relieve his thirst.

(7) Vessels in distress

If any vessel lands on an island in distress, it is lawful for the crew to drink the coconuts and eat the fruit of any trees growing in such island but it is unlawful for them to carry away anything beyond what is necessary for their bare support until they reach some port. If found guilty, they are liable to the penalty for theft.

(8) Unlawful to ride past nobles

It is unlawful to pass any nobles on horseback or in any vehicle without stopping until the noble has passed and saluting by raising the hand.

(9) Unlawful to wear a turban, have hair dressed in lime, wear a sulu without a belt or be without a ta’ovala in the presence of any nobles

(10) A person under the age of 14 years found after the hour of 8.30pm at night in any place of public amusement or in any public place whatsoever unaccompanied by his parent or guardian shall be liable on conviction to either a nominal fine, whipping (if male under the age of 16) or guardian or parent of defendant is to pay a fine not exceeding $100.

(11) Tax allotment holders to plant 200 coconut trees

All male Tongan subject who has been granted a tax allotment shall within a year grown on such allotment 200 coconut trees planted in rows and so arranged that the trees are 9 metres apart or 4.5 metres apart in rows 18 metres distant from each other. Every holder is responsible for keeping the place reasonably clean and free from weeds.

Penalties

• Fines not exceeding $50

(12) All dog collars must have the name of the owner of the dog legibly inscribed on it.

(13) Penalty for non-attendance to a great village fono is $3, penalty for non-attendance to a noble’s fono is $2 and penalty for non-attendance to an ordinary fono is $1

(14) Any person who creates or causes any unnecessary noise, engaged in any construction, gardening or agricultural works, purchases or sells goods or services, practises his trade or profession or conducts any undertaking of a commercial nature, engaged in sports, dancing or fishing on a Sabbath Day commits an offence.

Penalties

• Fine not exceeding $100;
• Imprisonment not exceeding 6 months ; or both.

(15) Offence to beg and cause a nuisance by begging in a public place.

Disclaimer – This article was solely written for information purposes and it should be not be relied upon in any situation.