Tonga law demands "custom" be considered in Court

Amidst Samoa’s ongoing controversy over elevating custom in the courts, Tonga’s Parliament has passed into law an amendment to do the same, though rather less dramatically.

Matangi Tonga reports Parliament passed a brief amendment to the Constitution on Thursday with no one voting against it in its third reading. 

The amendment now goes to the Privy Council and the King before it is officially law.

The new clause means Judges, Courts and Tribunals are invited to consider Tongan custom when making a decision, and may consider custom as evidence if appropriate.

Matangi Tonga founder and editor, Pesi Fonua, said the Bill, first tabled in early September, has never undergone public consultation though some Members of Parliament had requested it do so.

“We are still trying to find out how this Bill managed to reach this third reading, because normally it has to go through the Attorney General before it is resubmitted to Parliament. We still don’t know if it did and how it did,” he told the Samoa Observer on Monday.

“This is a very vital amendment to the Constitution, so you would have thought it would go through public consultation, but it didn’t.”

Mr. Fonua, who founded his newspaper in 1979, said the amendment will have an immediate and “confusing” impact on Tongans. 

“I think it will be very confusing, for a start. You wonder how the Supreme Court will eventually finalise a decision, considering that some of the cultural traditions, people have forgotten most of them,” Mr. Fonua said. 

“Most of our Supreme Court judges are all foreigners, except for one, so most of them don’t know about the Tongan traditional things which are not written anywhere.

“Traditional culture is not written down, and people today probably don’t know a lot of traditional culture, maybe only the old folks.

“To pass court judgements on something that is not written and relies on anybody’s interpretation can be difficult.”

Acting Minister of Justice, Samiu Vaipulu, said the intention is that Supreme Court Judges will consider Tonga’s traditional culture when making decisions.

Currently Tonga’s Supreme Court bench has just one Tongan judge on it, Justice Laki Niu. He is the first local Judge and was appointed earlier this year.

This, and the fact that Tonga’s customs are not codified (as is the case in Samoa), was of some concern amongst Parliamentarians, including Chair of the Whole House Committee Lord Tuiafitu and Representative Siaosi Pohiva.

“It is a worrying piece of legislation, and we should look at it carefully,” Mr. Fonua said.

“It seems to have been rushed through the House.”

The new clause reads:

“Customs in Tonga comprises all reasonable and sufficiently certain customs, traditions, practices, values and usages of Tongans: and every Court or Tribunal in the Kingdom, where relevant, shall have regard thereto when deciding any matter before them for decision. Custom requires to be established in evidence but in so doing a Court or Tribunal shall not apply technical rules of evidence but shall admit and consider such information as is available. Tongan Custom shall not be lost by reason of lack of recent usage.”

Samoan Constitutional law expert Dr. Anna Dziedzic said she feels the amendment is a sensible provision as judicial guidance to begin the work of elevating custom’s place in the courtroom. 

“It’s a fairly broad definition of custom […], it’s not a narrow definition of customary law, which is good because custom is unwritten practices.

“It does leave the court with a fair amount of discretion. It’s up to the court to decide when it is relevant to look to custom, it’s not saying courts must consider custom in every case.”

Samoa is currently in the midst of trying to elevate custom and usage in the eyes of the courts, by not only adding a similar judicial guidance clause to the Constitution but also radically restructuring the court system.

Asked whether Samoa’s own foray into developing legal pluralism could have influenced Tonga’s Parliament, Dr. Dziedzic said the issue is not new in the region, but suggested that states may be growing more determined to do something about it. 

“I think it’s a growing concern in many states across the region that legal pluralism needs to be put into greater effect,” she said.

“It’s not a new thing but it may be something states are more assertive about doing right now, and we are seeing that in the region more and more.

“I do think efforts like this to better recognise and better integrate custom and other forms of law are really important. They are good things to aspire to, it’s often just the way it is done that causes concern, it needs to be done carefully.”

Dr. Dziedzic agreed that a public consultation on a Constitutional amendment would have been good. 

“It is a worry […], it’s the people’s constitution after all. But there are different traditions in play and I know Tonga is quite a hierarchical, centralised monarchy so they have their own customs of lawmaking that they need to take into account.

“One concern might be whether the legal profession in Tonga and the courts in Tonga have been consulted about this, and I don’t know. They are the ones that are going to be implementing this Constitutional provision.”

Mr. Fonua said the change is a fairly natural follow up to Tonga’s gradual democratisation, as it finishes its first decade as a democracy.

In 2010, Tonga shifted from being run by a hereditary monarchy to by a democratically elected Parliament.

“We are still going through this democratisation process and there are a whole lot of issues the Government is trying to address,” he said.

“There are a whole lot of very complicated issues to be address and this (amendment) emerged out of that.”

One of the components of the clause allows judges to use their discretionary powers over evidence rather than applying technical rules over what is or is not evidence.

Dr. Dziedzic said this will be really meaningful in making the new amendment work. 

“There has been a debate in parts of the Pacific about whether when you give evidence on custom whether it’s a law or whether you are giving evidence of a fact. 

“Different rules of evidence will apply depending on which of those it is. The Tongan amendment tries to deal with this by saying we are not going to apply the technical rules of evidence, we are not concerned about whether it’s a law or a fact, we just want it to be given in evidence.

“It means that a court should, applying this provision, be pretty open to receiving evidence of all kinds about custom, it shouldn’t be too technical and say that’s not up to a sufficient standard of evidence and we’re going to ignore it.”

Another Parliamentarian, Mateni Tapueluelu said the new clause could become a “hiding place for crimes,” Matangi Tonga reports.

“It may make it difficult to make a reliable decision in court,” Mr. Fonua said.

Dr. Dziedzic said common law and state law is still in place in the Tongan courts, so customary law could not be used to override it if it was not relevant.

“For me the greater concern is that there is not always an agreed definition of what a customary rule is, there are different rules about customary rules and how it is applied. 

“I would be less concerned about this claim because the provision does give the court a lot of discretion, so it’s not the case that the court will have to apply custom over and above other laws if it thinks it would result in an unjust outcome.”

In Samoa, the proposal contained within the three Bills currently under Select Committee Consultation would not only remove the Supreme Court’s authority from the Land and Titles Court but also remove the common law from it, leaving it with no written jurisprudence and only the judge’s discretionary power, rather than a mix of discretion and common law precedent to guide decision making. 

Dr. Dziedzic said it is important not to leave the work of valuing custom to the courts alone.

“The Legislature has a role too, it’s not just for the courts to do this and that is one of the dangers of the judicial guidance clause, that it puts everything on the court. 

“A judicial guidance clause can help but I don’t think it should be considered the only strategy to use if you are serious about integrating and using custom in a way that better informs the whole of the legal system of the state.”

Some of that other work needs to happen in earlier stages of the legal sector, like how lawyers and judges are trained and educated, and how the public understands and uses the court system. 

“Courts rely on lawyers, lawyers rely on their legal education, so if you are serious about custom being integrated into law there are steps you will take earlier in the legal education process and public awareness that would help to build up expertise of custom, in order for the court to take it into account.”

Mr. Fonua said so far the public has not been stirred on the issue, and not too many people know about the new amendment. 

“We hope that people will be aware of how important this piece of legislation is and become more aware of it, and look at it seriously.”

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