The Editor
Concerns on the incorporation of customs into Tonga’s Constitution
I write to raise my deep concern regarding the proposed bill by the Parliament, which seeks to incorporate Tongan customs into the Constitution of Tonga. I feel compelled to raise awareness about the serious challenges this amendment may bring, in the hope that these concerns will be carefully considered by His Majesty.
Constitutions aim to ensure equality, liberty, and justice for every citizen. Customs, however, by their very nature, are flexible, uncertain, and sometimes unreasonable. The proposed bill also suggests that courts should not apply ‘technical rules of evidence.’ Such a change risks undermining the fundamental principle of justice, which is to prove beyond any reasonable doubt.
Amending the Constitution to elevate custom into binding law raises troubling questions of gender equality, abuse of power, and fairness. For example, Tongan customs do not adequately recognize the role of women in positions of authority. The fahu system is frequently abused, with some individuals using it to take property without the consent of the rightful owner, which is an act that directly violates principles of human rights and fairness.
Similarly, the custom of seeking forgiveness, while culturally significant, could unduly interfere with the impartiality of trials and the proper delivery of justice. Even practices of ‘physical punishment,’ which is also abused, while sometimes justified in the name of tradition, raise serious human rights concerns and could be normalized under the new amendment.
For these reasons, I strongly urge that the proposed bill be either reconsidered or revised again to ensure that Parliament specifies what customs are to be recognized to ensure certainty. The Constitution of Tonga must remain a safeguard of equality and justice for all, not a tool to enshrine customs that may perpetuate inequality, abuse, or unfair treatment.
Respectfully,
Keilani Peaua
University of the South Pacific,
Laucala Campus,
Suva,
Fiji.
