From the House, by Pesi Fonua

Difficulties over the Tongan and English interpretations of the Tongan Constitution had the House in an uproar last week. There was a clash of strong opinions when it was discovered that the Tongan Clause 8 stopped short of spelling out the public's right to petition the passing or the repealing of enactments, as stated in the English version.

The People Representatives were divided on whether or not they should consult “the people”, over a proposal to amend the Tongan version of Clause 8 of the constitution to bring it into line with the English version.

'Akilisi Pohiva, 'Isileli Pulu and Sione Taione were adamant that there was no need to consult the people.

'Akilisi's logic was that there was no need to consult the people because the people, "as usual", would not be interested in the issue, and would ask why the House did not just go ahead and do what they thought was best. He firmly believed that the Tongan version of Clause 8 should remain as it was.

Tongan or English

On the other hand, Sunia Fili and Dr Sitiveni Halapua thought that it was essential to consult the people, and hopefully get new ideas on what was best to be done.

Sunia suggested that instead of amending the Tongan version of Clause 8 to match the English version, the English version should be amended to match the Tongan version.

Sione Taione even went so far as to warn that such a move to inform the people could spark a riot, similar to what happened on 16 November 2006, because he believed that an amendment to the Tongan version of Clause 8 might even restrict the right of the people to petition the King and the Legislative Assembly.

The other strong view on Bill No. 8 for the Amendment of the Tongan version of Clause 8 of the Constitution came from the government. The Deputy Prime Minister, and a People's Representative for Vava'u Constituent No. 15, Hon. Samiu Vaipulu did not believe that the amendment would restrict the right of the people to petition the king and the Legislative Assembly. He said that the amendment was to complete the inadequate Tongan translation of the clause.

Tonga Constitution Clause 8

The English version of Clause 8, Freedom of Petition, reads –

"All People shall be free to send letters or petitions to the King or Legislative Assembly and to meet and consult concerning matters about which they think it right to petition the King or Legislative Assembly to pass or repeal enactments, provided that they meet peaceably without arms and without disorder."

The Tongan version of Clause 8 - 'Oku ngofua ki he kakai kotota pe ke fai 'enau tangi, reads –

" 'Oku ngofua ki he kakai kotota pe ke fai 'enau tohi pe ko 'enau tohi kole ki he Tu'i pe ki he Fale Alea pea ke fakataha 'o alea ki he me'a 'oku ha mai kiate kinautolu 'oku totonu ke nau kole ki he Tu'i pe ki he Falea Alea ko hono fokotu'u pe ko hono ta'ofi kapau 'oku nau fakataha melino pea ta'e ha mahafu tau mo ta'e maveuveu."

The Tongan version of Clause 8 stops short of spelling out the public's right to petition the passing or the repealing of enactments, it simply stated that they have the right to establish or to stop "something" so long as they meet peacefully without arms and without disorder.

The proposed amended Tongan version of Clause 8, (a complete Tongan translation of the English) version, reads –

" 'Oku ngofua ki he kakai kotoa pe ke fai 'enau tohi pe ko enau tohi kole ki he Tu'i pe ki he Fale Alea pea ke fakataha 'o alea ki he me'a 'oku ha mai kiate kinautolu 'oku totonu ke nau kole ki he Tu'i pe ki he Fale Alea ko hono fokotu'u pe ko hono ta'ofi 'o ha lao kapau 'oku nau fakataha melino pea ta'e ha mahafu tau mo ta'e maveuveu."

Sunia pointed out that according to the Interpretation Act Clause 21, regarding the application of English or Tongan versions in criminal trials, if any differences in meaning were found between the Tongan and the English then the court shall be guided by what appears to be the true meaning and intent of the Tongan version (amended by Act 28 of 1978).

Sunia's interpretation was that according to the Interpretation Act the Tongan version held the true meaning of the Tongan law, and therefore the Tongan version of Clause 8 of the constitution should remain, and the English version should be amended to match the Tongan version.

He also pointed out that the Tongan version had been in place for more than 100 years.

Standing committee on Legislation

He moved for the Bill to be sent to the House's Standing Committee on Legislation, and that there should also be a public consultation on the proposed amendment.

Members of the House's Standing Committee on Legislation are –

Lord Fakafanua
Lord Tu'iha'ateiho
Hon. Samiu Vaipulu (Chair)
Hon. Dr 'Ana Taufe'ulungaki
Hon. William Clive Edwards
'Isileli Pulu
Sione Havea Taione
Semisi Tapueluelu
Siosifa Tu'utafaiva.

Lord Nuku was in favour of the notion that the Tongan version of the law was the one that has the legal authority, and therefore the English version of Clause 8 was the one that should be amended to be in line with the Tongan version. He supported the motion for the Bill to be forwarded to the Standing Committee on Legislation.

Lord Fakafanua disagreed with the government's argument that by amending Clause 8 of the Tongan version of the Constitution it would not make any difference to the application of the clause.

He agreed that there appeared to be contradiction in the law about which version of the law has the real legal authority - the Tongan version or the English version. Because while the Clause 11 of the Law Consolidation Act stressed that the English text of the law shall be held to give the true meaning of the law, Clause 21 of the Interpretation Act stated that the Tongan version has the legal authority when presiding over a criminal case.

He supported the move to table the Bill with the Standing Committee on Legislation.

Confusion

'Isileli Pulu disagreed with both the proposal to send the Bill to the Standing Committee and for a public consultation, which he considered an unnecessary prolonging of the process. He suggested for the committee to make a decision and get it over and done with.

Toward the end of what appeared to be a mass confusion in the Whole House Committee, the Chairman called for vote on the only one motion that was still standing, and that was for the Bill to be tabled with the Standing Committee on Legislation.

But then, if the interpretation of the law by the members of parliament was not confusing enough, the end of the deliberation was even more confusing.

There was no voting because, out of the blue, 'Akilisi moved for the Bill to be tabled with the Committee and that there was no need for any public consultation.

The Chairman responded that the Bill would be sent to the Committee, and called for the proceeding of the House to continue with the next Bill.

Attorney General

Later, outside the House, commenting with regards to the proposed amendment of Clause 8 of the Constitution, the Attorney General Neil Adsett admitted that there was an error in the translation of the Tongan version that had been over-looked and it had to be corrected. "But this is the beauty of the English legal system, that you cannot do things only if there is a law that stops you from doing so."

What the Attorney General was referring to was that there was nothing unconstitutional about people writing all different kinds of petitions to the King and the Legislative Assembly during the past 137 years, because they did not infringe any law.

He said that they had been working on making the Tongan version of the Tongan law as the dominant one, "but it is yet to come." For the meantime, if there was a disagreement in the interpretation of the law, the English version is the correct one.