Editor,

I appreciate Mr. Tevita U. Langi taking the time to respond to my previous letter and recognize the many benefits of engaging in thoughtful and respectful dialogue in an effort to increase understanding and awareness of an issue that is entirely relevant to each and every citizen of the Kingdom.

In Mr. Langi's last letter, he cited Section 49 of the Constitution as supporting his proposition that in Tonga, the King is "above the law." Section 49 reads, "It shall not be lawful to sue the King in any court for a debt without the consent of the Cabinet." Mr. Langi then asked the question, "So, if the king is not above the law, why do we have to ask permission to sue him?"

A complete answer to the question Mr. Langi asks requires us to first understand why this law was and perhaps still is very necessary to be included in the Constitution today. One need not look far, as a quick glance at our neighbours in the rest of the Pacific clearly illustrate the shortcomings they had that resulted in their losing their independence and being colonized by foreign powers.

When Tupou I returned from his trip to Sydney, Australia in 1853 he realized that there was a lot of work to do to ensure that his people did not become disposed from their lands like the indigenous people he saw in Australia. There were "three evils" in which he aimed to address when writing the Constitution of Tonga. These three evils he aimed to avoid were a "land monopoly" by foreigners, foreigners' abuse of "usury", and "alcoholism". These three evils all contributed to the downfall of practically all of the Pacific Island nations, with the exception of Tonga. Most historians and Tongans have always mentioned the important land laws in the constitution, but neglect to also highlight the other laws that were also responsible in keeping "Tonga for Tongans". These were laws that significantly contributed to protecting the land, though in an indirect fashion, such as if Tongans became victims of exorbitant rates of interest when being lent money or goods.

Although many history books claim to discuss the ceding of Fiji to the Brititsh in 1874, what the British and others do not write in the history books about the ceding of Fiji was the fact that Europeans (mostly British) had land monopolies gained in many districts of Viti Levu, obtained from lending money to Fijian chiefs, which money for the most part was used to buy guns to use in their civil wars. Thus the ceding of Fiji was not entirely to protect Fiji from Ma'afu, but to also enforce land rights gained by Europeans in Fiji, most especially in Viti Levu. Another interesting thing is that in the Lau Group, all land owned by foreigners were by lease only, showing how Henele Ma'afu adopted ideas borne by Tupou I and the laws in Tonga for the Lau Group.

In Hawaii, after the "Great Mahele"(1848) and the Kuleana lands Act (1850), the lands of the Hawaiian Islands were divided up to the Hawaiian population. All Hawaiians quickly incurred debt to the resident foreigners, including many chiefs and the even the Monarch had to eventually pay these debts by giving up land. A lot of the land owning commoners who had become addicted to alcohol gave up their lands for a bottle or two of whiskey or rum. The economic domination of the foreigners on the Hawaiian people rose exponentially after the Hawaiian Monarchy was overthrown in 1893, and only 26 years after the overthrow, tax returns in 1919 show that only 6.23 percent of the land in Hawaii was still owned by Hawaiians!

When taking into consideration that the constitution states in Section 104, that "all land belongs to the King" we can conclude that in conjunction with Section 49, this is another mechanism to protect Tonga from the "three great evils" mentioned above, and that this is not some conspiracy of Tupou I and his descendants to somehow have the King take whatever land he wishes from the people. One example of the many that exist, is that the father of current Luani had a number of land disputes with the late Monarch of Tonga where, in many cases, Luani actually won. Also, to strengthen the protection of Tongan land, protection from debt had to be included in the constitution because debt can also lead to a loss of land. Mortages for land leases in Tonga are a catch-22 for banks because the land will always eventually return to the Tongan owner, with the banks having yet to collect the accrued amount owed to them. Otherwise, most of Tonga would have already been owned by the banks. Likewise was Section 49 of the Consitution meant to be a catch-22, and to scare away any foreigner having any funny ideas of getting the Monarch of Tonga in serious debt that would lead to the loss of land. Furthermore, although often only attributed to the strong influence of religious beliefs in Tonga, other laws were set up to protect the loss of land by curbing the abuse of alcohol in Tonga, which was another major way in which land had been lost in other Pacific nations, and therefore, all the way up to the 1970's people in Tonga needed a permit to drink alcohol.

In addition to the foregoing, Section 49 is also a serious hindrance upon the King's ability to engage in personal business ventures beyond the official duties within the scope of being King. This is because any serious business person would not want to do business with someone that would be difficult to sue. Hence it makes complete sense that this clause be included in the Constitution because not only does it protect the land from being taken away from Tongans because of debt, it also limits the King's abilities to engage in his own personal business undertakings, requiring the King to focus more on being King to the benefit of the Kingdom.

So, what I am saying is that the King is not "above the law", and that the Monarchs of Tonga have been subject to law in the past and have even lost important cases brought before our independent judiciary. Also, perhaps each of us who either own land today or who have relatives that still own land in Tonga should be grateful for the 49th Section of our Constitution. Otherwise, our precious 'api could possibly have been taken away for some mo'ua at one time or another through the generations, but luckily it still remains in their family because of the foresight of those who came before us. If it were not so, Tonga would most likely be owned by foreign businessmen, foreign missionaries, foreign governments, or even WestPac or ANZ by now. I hope we as Tongans can appreciate Section 49 of the Constitution as part of the inspired puzzle that keeps "Tonga for Tongans", and that it is not part of some conspiracy engineered by Tupou I to ensure the King is above the law to run-up a mo'ua at a local falekoloa.

Malo e kei ma'u faingamalie,

Daniel K. Fale