Tracing Tonga's Constitutional History
Dr Sione Vikilani in Nuku’Alofa
Dr Vikilani is the Clerk Assistant – Reporting for the Parliament of Tonga.
Tonga has come a long way from 1875 when Tonga’s constitution was promulgated and Parliament was established in the Westminster system. About 135 years later, Tonga entered a new era when the power to rule was handed over without bloodshed from the King to the people through a political reform. The political reform gave the common people more say in who should be their leader through the ballot box instead of serving leaders appointed by the King.
Historically, the Parliament that was opened on 16 September 1875 to discuss the newly written constitution for the country seemed to have been ideated and modelled after the earlier Fakataha (meeting of King and his Chiefs) which had been a council of chiefs whose main task was to advise the King. Therefore, the Fakataha met irregularly and it had nominal powers, if at all. It is also true that the idea of a Tongan Parliament was not only necessary for political considerations such as members of Parliament, but also as representatives of the chiefs and the people, meeting regularly as an embodiment of the unity of the whole country. The creation of Parliament, together with the constitution, was also important in order to safeguard Tonga’s sovereignty.
The original Parliament was composed of the: government – the Premier, Treasurer, Minister for Lands and Minister for police; 20 nobles – nine from Tongatapu, five from Ha’apai, four from Vava’u, one from Niuatoputapu and one from Niuafo’ou – who were appointed by the King for life; and 20 people’s representatives elected along the same regional lines as the nobles. They were elected by suffrage for a term of five years. The Speaker was also appointed by the King. Parliament had the power to legislate, impeach, determine the amount of taxes, duties and licences; pass estimates of government expenditure; and discuss amendments to the constitution except in areas where it did not have jurisdiction such as matters to do with succession to the throne. It also had some judicial responsibilities such as the right to determine the number of police courts and the frequency with which they could sit.
In 2010, as part of the process of political reform, a large set of constitutional amendments were approved by Parliament and the King. The reforms were enacted following public consultations in 2009 by the Constitutional and Electoral Commission, which produced a final report and recommendations for consideration. The political reform amendments were contained in the Legislative Assembly Act (2010), the Electoral Act (2010) and three constitutional amendment Acts which were also passed in 2010. These key documents are listed at the end as a guide for reference, further reading and research.
The constitutional and electoral reforms have now been implemented. Those reforms went further and deeper than any other in Tonga’s constitutional history. Together, they are intended to have a profound effect on the shape and form of future governments. The key amendments are discussed below in the various chapters, as they relate to specific powers and functions of Parliament.
One of the major reforms of 2010 was to make explicit in Article 31, the separation of powers between the three branches of the government, namely, the Cabinet, the Legislature and the Judiciary. Separation of powers means that each branch has its own set of independent powers, and in addition, has powers to check the other branches of government. In this context, the simple explanation of the branches is that:
- The Legislative Assembly (the Legislative Branch) makes laws and oversights the work of the Executive;
- The Cabinet (the Executive Branch) develops and implements national policy, including implementing and administering national laws and the budget;
- The Judiciary (the Judicial Branch) interprets the laws passed by the Legislative Assembly, ensuring in particular, that they are not inconsistent with the Constitution.
Unlike the US-presidential system, the Tongan system of government is not a “pure” separation of powers, because the members of the Executive sit inside the Legislature. This can make the relationships of accountability between the two branches more complicated, because the Executive is usually quite dominant in the Legislature. Nonetheless, the Legislative Assembly does have a range of powers available to oversight the government.
The second part of the clause highlights the fact that the Parliament is actually a Parliament of individual members, not parties. In terms of introducing Bills, proposing motions and presenting petitions, this is carried out by the individual members, whether on behalf of themselves or others.
Following the 2010 reforms, the Executive no longer includes His Majesty and the institution of the Privy Council, as was the case in the past. The Executive is now comprised of the Cabinet alone. Cabinet is headed by the Prime Minister and a number of Ministers that must always be less than half the membership of the Legislative Assembly.
Roles of Parliament
The Political Reform on 2010 has given Parliament greater power and new roles. Traditionally Parliament made laws and did not have any say on who was the Speaker or the Prime Minister. Parliament can now elect the Speaker and the Prime Minister, which were two roles exclusively part of the King’s prerogatives. The Executive will also be appointed from elected members of Parliament apart from not more than four unelected officials which is within the discretion of the Prime Minister should he want to appoint them as Ministers.
As mentioned above, separation of powers is very interesting in Tonga as Members of the Executives are also Members of Parliament but this has been normal practice since Tonga’s constitution was Promulgated.
Following the election of the Prime Minister, the Speaker of the House will be elected in accordance with the constitution. The Speaker and Deputy Speaker can only be nominated from amongst the noble’s representatives. If only one noble’s representative is nominated and seconded, he is automatically elected Speaker. If more than one candidate is nominated, then a voting process is undertaken. Rule 5 of the Rules of Procedure describes the detailed process for the voting process for the Speaker and Deputy Speaker.
Vote of No Confidence
The vote of no confidence is a new mechanism for regulating and making government accountable to the Assembly and the people. In essence, it is a vote by members to clarify whether the majority of members still have confidence in the leadership of the Prime Minister and the government of the day.
A motion of no confidence will have no legal effect if it is passed by the Legislative Assembly:
- Within 18 months of a general election;
- Within six months before the next general election; or
- Within 12 months of a previous vote of no confidence.
A vote of no confidence in the Prime Minister cannot be moved unless at least five working days’ notice of the intention to move such a motion was given to the Speaker. If procedural requirements are met, the Speaker must allow the motion to be debated and voted upon.