To the People of Tonga
Congratulations! I may be overly optimistic, but I believe that the Constitutional reform committee will be a major success in the long journey started by the Human Rights and Democracy Movement in 1986. I have recently been spending my time studying some of the history of your Constitution, and I would like to say that as you begin this difficult process, it is important to remember all that you have achieved so far by courage, and persistence. When I read about the trials of 'Kalafi Moala, Filokalafi 'Akau'ola, and 'Akilisi Pohiva I am inspired by the courage they displayed in challenging the legal system and enforcing the liberties that are basic to all humans. As a result of their courage, and persistence, the Tongan courts have become strong and independent of the King, as evident from the Lali Media Decisions.
But what inspires me most is the non-violent methods that the good people of Tonga have employed to secure their future. The Tongan people know that those who wish to reform the government far outnumber those who would rather it stay the same. Yet, the reformers throw no stones, nor take up arms to enforce their right to be adequately represented in the Government. Instead they inform, educate, and persuade people to follow their cause; such roots are sure to give rise to a healthy and strong democracy.
I hope this patter of information, education, and persuasion continues to guide you through the committee process. As your leaders present new proposals, ask that they have those proposals published and open to scrutiny and debate. Confine negotiations between the People before you present a final petition to the reform committee. I am afraid if proposals continue to come from various authors, (with the greatest of respect to Laki Niu, Lopeti Senituli, and Clive Edwards), instead of being a result reached by consensus from the People's Representatives, you may run the risk of "running a race to the bottom".
Focused effort
For example, in Clive Edwards' proposal he calls for 6 seats for the nobles in the new Assembly, and Laki Niu calls for 9. Why, in the light of Mr. Niu's better offer of 9 seats, would the nobles ever take the proposal from Mr. Edwards that only gives them only 6 seats? Mr. Niu, perhaps did this inadvertently, or out of political considerations, (ie.- to get support for the new constitution from the nobles), but the net effect is the Tongan people are likely to have just given up the chance of limiting the Noble's Representatives to six seats. Without a concerted and focused effort to bring about real change, the Tongans run the risk of receiving a new government that does not live up to the high ideals you have fought for.
But more importantly the proposal process should be open to debate and participation because it exposes flaws that may not be readily identifiable by the person who drafted the proposal. For example:
the Edwards proposal would change the method in which the Constitution is amended. The current method embodied in Clause 79, which was the subject of Taione, would be completely eliminated in favor of amendment by a two-thirds supermajority in the Legislative Assembly.
What is missing in the new Constitutional proposal is the entrenchment provision that protects the law of liberty. According to the reasoning adopted in Taione by the court, any provision of the Constitution can be amended, including the provisions for amending the Constitution, as long as it done so in the manner provided in the principal act. Therefore, the new proposal would be allowed to change the current Constitution only if it does not affect the laws of liberty, and is implemented pursuant to the procedures required in Clause 79 of the principle act.
Vulnerable
The question then is, "Does the removal of the entrenching provision concerning the laws of liberty, affect the laws of liberty? While the proposed amendment does not directly affect any of the laws of liberty, it removes their entrenched status in the Constitution, and makes them vulnerable to future amendment by the Legislative Assembly. While it may be reasonable to argue that it is unlikely that a democratic society would have supermajority support for an amendment that would restrict one of the enumerated rights, the provision nonetheless diminishes the protections afforded by that entrenchment clause, and can therefore be said to affect the laws of liberty. To hold otherwise would be an act of speculation.
Furthermore, Taione required the entrenchment provision concerning the laws of liberty to be read broadly and purposefully. If the entrenchment provision could be repealed in the manner provided for in the Edwards proposal, then the King would also currently have the power to enact the Newspaper Bill and the Media Operators Act by simply amending the entrenchment clause, which he could do at will, and then passing a revision of the Amendment Act of 2003. A simple act of procedural cleverness should not undermine the broad and purposeful protection of basic liberties called for in Taione.
In light of likely invalidation, the proposed amendments should simply be modified to include a statement that no amendment can be made that restricts the laws of liberty, perhaps in the proposed subsection 3. I would like to say that I think that Mr. Edwards proposal is brilliant, and professionally written, and I only offer these suggestions as constructive criticism, and to illustrate there are many substantive arguments to be "hammered out" in the committee process, (including apportionment of seats both in the House, and throughout the various island districts). I have not commented on Mr. Niu or Mr. Senituli's proposal because they are not published online and I don't have access to local materials, (but wouldn't that be great if they were published on the Matangi website for all to see?)
Again, congratulations on all that you have achieved so far, and all that you will achieve in the near future,
John Maloney
Tallahassee, Florida, U.S.A.
PS. I love discussing politics, if you would like to send me a message you can do so at jtm04f [at] fsu [dot] edu
