1. Architects and Excavators
I have elsewhere contrasted two metaphors for the work of constitution-making. The first I termed ‘the architectural metaphor’ . On that view, Constitutions are ‘designed’ by political leaders and lawyers whose objective is the betterment of society by the formulation of fundamental rules judged to be beneficial. The result succeeds or fails in accordance with the vision and wisdom of the designers. But a second and alternative metaphor might be provided by the work of the archaeologist:
‘While I do not discount the value of rational law-making, I would place equal importance on another metaphor - that of scholars lovingly excavating and uncovering the institutions and values of our peoples with a view to adapting and renewing the best of these for our present and joint needs.’
Architects sit at their drawing-boards and attempt to create principles, structures, and processes informed by reason, discovered facts, and an alleged sense of justice. Excavators try to discover the customary ways underlying a particular society, and to bring these to prominence and coherence. Of course, in the real world, these are two poles in between which there is a practical continuum. Even the most inspired architect is likely to pay some attention to the social context, and the most reverential excavator will give thought to the possibility of useful innovation. Nevertheless, attention to the poles may assist us in finding the right balance between these approaches.
In 1991 I had the honour to be engaged as Special Counsel to advise the Constitutional Review Committee of the Niue Assembly on proposals to amend the Niue Constitution enacted in 1974. Working in Alofi, I asked to see any previous materials held there relevant to the preparation of the 1974 Constitution. My inquiry drew a blank with the exception of a beaten-up cardboard box in which I found a few fading typewritten pages containing what appeared to be a transcript of comments by Professor R.Q. Quentin-Baxter to the Niue Assembly on 21 January 1976 on the occasion of a meeting to review the operation of the Constitution which had entered into force on 19 October 1974. The presentation, which dealt with specific concerns and questions raised by the Niuean legislators, began with these words:
‘You could think of the Constitution as being a little like the land and the sea of your own island. The land and the sea, the trees and the sunshine, sometimes a little rain, are what make up the basis of your lives. They are what you build upon. And yet, the land and the sea are nothing unless there are men and women here to thank God for them, to cherish their own culture and traditions and to move forward into the future. It is the life of the people that gives a meaning to the land. So too with the Constitution, it should be a solid basis for your lives, as reliable and as firm as the coral rock of the island itself and yet, without life and without the desire to work it, without men and women considering new questions, living in the spirit of the Constitution, it is only words on a piece of paper.’
QB’s sensitive metaphor is attuned to the Tahitian and ma’ohi view of customary principle as being parau tumu fenua – ‘words whose foundation is the land’. Only when the people see and feel that link between the words of their laws and their land will there be a true ‘buy in’ to the great principles articulated in the Universal Declaration of Human Rights in 1948 and subsequently propagated throughout the written constitutions of the post-colonial world including the Pacific.
This process could perhaps be assisted by two things. First, the development of ‘performance’ accounts in ma’ohi language of the origins of the constitution and of its human rights elements, tracing these back to their histories, both local and global. A kind of genealogy, what Maori would call whakapapa, of these instruments is needed, and this would seem to be the joint business of the Ministries of Education and Justice in the respective jurisdictions.
A second matter touches the work of judges more closely. Perhaps the most quoted dictum in relation to the interpretation of the fundamental freedoms in the post-war ‘Westminster’ written Constitutions, of which the Pacific provides several examples, is Lord Wilberforce’s call in Minister of Home Affairs v. Fisher for a ‘generous’ interpretation and the avoidance of ‘the austerity of tabulated legalism’.
Lord Wilberforce does not attribute the phrase, although it appears in quotation marks, but it seems to have come from Stanley de Smith’s 1964 volume The New Commonwealth and its Constitutions, where that author states: ‘It brings out the general purport of the guarantees, lifting them above the austerity of tabulated legalism…’. The felicity of the phrase can however mask some underlying perplexities: generous to whom or what? And which tabulations are to be avoided? A competent modern opinion on the application of a fundamental freedom under a particular Pacific constitution is likely to ‘tabulate’ the Commonwealth precedents for the freedom in question from the very useful Law Reports of the Commonwealth, and may even go on to cite European and American cases on similar facts under their respective constitutional instruments. Counsel’s most inventive skills in drafting are unlikely to avoid the appearance of ‘tabulated legalism’ and the spectre of ‘austerity’ may not be far away either.
Perhaps we may resolve these perplexities if we understand Lord Wilberforce’s dictum as encouraging generosity to the spirit of the fundamental freedom in question in its local social and cultural context. This might involve, where possible, the progressive articulation by judges of the constitution and its human rights elements in the context of the customary principles of the people, even where the former are found to be a development or modification of the latter. The process may need to be a two-way street: the 1948 Principles, and the International Covenants and fundamental freedoms elaborating and giving effect to them, may need to allow a ‘margin of appreciation’ for local custom in very small island societies, just as custom for its part will as in the past accept gradual adaptation and amendment in the light of new circumstances.
Compare Samoa’s ‘autochthonous’ model as opposed to the Cook Islands ‘inherited’ model. The ‘Supreme-law’ model and its connection to the European Convention on Human Rights of 1951 and the early African and Caribbean independence Constitutions (eg Nigeria 1960). For history see Stanley de Smith, The New Commonwealth and Its Constitutions, Stevens & Sons, London, 1964.
IN THE HOLY NAME OF GOD, THE ALMIGHTY, THE EVER LOVING
WHEREAS sovereignty over the Universe belongs to the Omnipresent God alone, and the authority to be exercised by the people of Samoa within the limits prescribed by His commandments is a sacred heritage;
WHEREAS the Leaders of Samoa have declared that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition; AND WHEREAS the Constitutional Convention, representing the people of Samoa, has resolved to frame a Constitution for the Independent State of Samoa…..NOW THEREFORE, we the people of Samoa in our Constitutional Convention, this 28th day of October 1960, do hereby adopt, enact, and give to ourselves this Constitution
In the important case of Attorney-General v. Saipa’ia Olomalu, reported in (1982) 14 Victoria University of Wellington Law Review, p. 275, the Court of Appeal of Western Samoa (Sir Robin Cooke P. and Mills and Keith JJ) had to consider whether a provision in the Samoan Electoral Act 1963 which provided that only the holders of matai titles (customary titles) could be registered as electors in the territorial constituencies could stand in the face of the apparent requirements of Article 15 of the Constitution for ‘equality before the law’.
The Court of Appeal observed that the Samoan arrangements were ‘unique’ and ‘explained by the particular history and social structure of Western Samoa’. The Court placed great weight on the fact that the matter of electoral restriction in favour of matai had come up specifically at the Constitution Convention considering the draft Constitution. The will of the Convention had been to retain the customary restriction.
2. Decolonisation in the South Pacific
For a short history of the way in which the Cook Islands, Niue, and Samoa came within the New Zealand political orbit as a result of the ambitions of Sir George Grey in the 1850’s and Premier Seddon in the early 1900’s, see Pacific Peoples’ Constitution Report, Ministry of Justice, Wellington, 2000. Seddon’s speeches in Parliament in 1900, before setting out on the government vessel S.S. Tutanekai for Tonga, Fiji, Niue, and the Cook Islands to solicit agreement to New Zealand annexation, are particularly interesting as a classic example of orthodox nineteenth century imperialism:
‘We are commencing a new century, and with its dawn let us commence a new life – one of expansion and on the forward path of our ultimate destiny…Our dear old flag will for ever float over the islands insuring justice and freedom to all’ (New Zealand Parliamentary Debates,Vol. 114, p.425)
The post World War II tide of decolonisation – in the Pacific and elsewhere – had its earliest beginnings with the ‘Atlantic Charter’ proclaimed by President Roosevelt and Prime Minister Churchill at their 1942 meeting at Placentia Bay off Newfoundland and which vaguely acknowledged Roosevelt’s resistance to the continuation of colonialism after the war. For the South Pacific, a sharper focus was provided by the ‘Wellington Conference’ in November 1944, when Australia and New Zealand, stung by signs that the ‘Big Powers’ might unilaterally re-arrange the Pacific after the war, began to insist on concepts of ‘trusteeship’ and international supervision for all dependent territories in the post-war world. These concepts found their way into the United Nations Charter and institutions partly as a result of the chairmanship by New Zealand Prime Minister Peter Fraser of the influential ‘Trusteeship Committee’ at the San Francisco Conference in 1945, called to finalise the shape and functions of the United Nations.
In December 1960 the General Assembly of the United Nations adopted Resolution 1514 (XV), better known as the Declaration on the Granting of Independence to Colonial Countries and Peoples. It declared that:
(3) Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence ....
(5) Immediate steps shall be taken, in Trust and Non-Self-Governing territories or all other territories which have not yet attained independence, to transfer all powers to the people of those territories without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom’
It was adopted by 89 votes in favour (NZ), with none against, but 9 abstentions. The very next day, the General Assembly adopted a further declaration. Resolution 1541 (XV) contained an annex setting out ‘Principles which should guide Members in Determining whether or not an obligation Exists to Transmit the Information called for in Article 73(e) of the Charter of the United Nations’. Principle VI stated that:
‘A Non-Self-Governing Territory can be said to have reached a full measure of self-government by :
(a) Emergence as a sovereign independent state
(b) Free Association with an independent state
(c) Integration with an independent state
Principle VII stated:
(a) Free Association should be the result of free and voluntary choice by the people of the territory...It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent state the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes
(b) The associated territory should have the right to determine its internal constitution without outside interference ....
In 1961 the General Assembly set up a Special Committee of 17 members to study and report progress on implementation of Resolution 1514. In 1962 it was enlarged to 24 members and became known as the ‘Committee of 24’.
K.I. Murray has commented:
‘Its repeated insistence that Pitcairn Island (population about 90) be granted sovereign independence gives one cause to wonder about the Committee’s awareness of the problems of very small island territories’
Murray also quotes a comment in the NZ Parliament that ‘the Resolution by the United Nations in 1960 and the setting up of the 24 man Committee created something of a panic in the mind of the Hon. Mr Gotz’.
Lindsay Watt, a senior New Zealand diplomat with extensive experience in Pacific Affairs, has written that:
‘From New Zealand’s experience of decolonisation over the past 50 years comes much of that special character which makes New Zealand truly a country of, and not simply in, the South Pacific’.
He has drawn attention to the significance of Prime Minister Peter Fraser’s role in the formation of the United Nations at the San Francisco Conference in 1945, and his chairmanship of the Trusteeship Committee in which those parts of the Charter establishing the principle of self-determination for trust territories and non-self-governing territories were developed. Watt discusses this and other factors in reaching the conclusion that:
‘New Zealand - both aided and abetted by the United Nations - found itself in the vanguard as a decoloniser in the South Pacific through the 1960’s and into the next decade’.
Certainly, New Zealand was prepared to experiment and innovate. A specific example is the development of an associated statehood model for the Cook Islands, and later Niue, which proved acceptable to the United Nations and the key to which was the vesting of all law-making powers in the legislature of the associated state. An earlier model designed by the United Kingdom for its Caribbean territories, and which attempted to retain at Westminster law-making powers for foreign affairs and defence matters, had been rejected by the United Nations as falling short of compliance with its intentions.
The ‘Independence Constitutions in the Pacific’ – another view:
‘The constitutions are so structured as to transfer authority to an educated, westernised elite, who speak a common language with the departing colonialists and think and plan within frameworks common to both. In that sense the constitution, far from marking the end of colonialism, can be viewed as its culmination, recording and consolidating the final victory of the westernised, Christianised, urbanised elites, in control of the restructured formal state, distinguished by their increasing repudiation of traditional institutions.’ Yash Ghai, Law Government and Politics in the Pacific Island States, University of the South Pacific, 1988, p.49.
The British constitutional lawyer, Stanley de Smith, favoured a more benign interpretation:
‘This has been a story of the piecemeal reconstruction of the Westminster model. Desperately fragile and precariously balanced, it has yet been the most sought-after of Britain’s exports to the Commonwealth. From Aden to Zanzibar nothing that could be represented as being in any way inferior to the original has given satisfaction…In short, the Westminster model of responsible government has been adopted primarily because it has been persistently and insistently demanded…’
Yet there is a paradox in the enthusiasm of the departing colonial powers for insisting on ‘fundamental freedoms’ in the ‘supreme law’ constitutions which were foisted upon the fledgling states spawned in the receding tide of colonialism. It was that the departing powers were themselves at best lukewarm about, and sometimes actively hostile to, judicially reviewable fundamental freedoms in their own jurisdictions. Stanley de Smith quotes the reported comment of the Labour Party leader, Ernest Bevin, about the European Convention on Human Rights of 1951: ‘I don’t like it. When you open that Pandora’s Box, you will find it full of Trojan horses’. New Zealand still has no fully enforceable fundamental freedoms and Australia only a limited regime.
When advising on the first (and only) amendment of the Niue Constitution in 1990, I inquired of that country’s founding Premier, the redoubtable Sir Robert Rex, whether it was desired to insert fundamental freedoms along the lines of those added to the Cook Islands Constitution in 1981. Sir Robert asked me what the effect of those provisions had been in other Commonwealth countries. At the end of my necessarily lengthy and no doubt confusing summary of the legal uncertainties to which they had given rise, the venerable Sir Robert observed that Niue would wait until these uncertainties had been resolved in these other countries before proceeding down that path.
3. Entrenchment and Amendment of the Constitutions
1. What differences are there in the provisions below for the amendment of the Constitutions of Samoa, Tonga, and the Cook Islands?
2. Which matters are considered to be worthy of special protection in each case – how should we explain the variations?
3. Why do you think there have been 27 Amendments to the Cook Islands Constitution since 1965 and only 1 to the Niue Constitution since 1974?
4. What is the difference between ‘single entrenchment’ and ‘double entrenchment’ of a constitutional provision? Consider section 268 of the New Zealand Electoral Act 1993:
268 Restriction on amendment or repeal of certain provisions
(1) This section applies to the following provisions (hereinafter
referred to as reserved provisions), namely,—
(a) section 17(1) of the Constitution Act 1986, relating to
the term of Parliament:
(b) section 28, relating to the Representation Commission….
(e) section 74, and the definition of the term adult in section
3(1), and section 60(f), so far as those provisions prescribe
18 years as the minimum age for persons qualified
to be registered as electors or to vote:
(f) section 168, relating to the method of voting.
(2) No reserved provision shall be repealed or amended unless the
proposal for the amendment or repeal—
(a) is passed by a majority of 75% of all the members of the
House of Representatives; or
(b) has been carried by a majority of the valid votes cast at
a poll of the electors of the General and Maori electoral
109. Amendment of Constitution
(1) Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act, if a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total number of Members of Parliament (including vacancies) and if not fewer than 90 days elapse between the second and third readings of that bill:
Provided that no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44 and unless it has been supported by two-thirds of the valid votes cast in such a poll.
(2) A certificate under the hand of the Speaker that a bill has been passed under the provisions of clause (1) shall be conclusive and shall not be questioned in any court.
102. No alienation of customary land
It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:
Provided that an Act of Parliament may authorise-
(a) The granting of a lease or licence of any customary land or of any interest therein;
The taking of any customary land or any interest therein for public purposes.
Amendments to Constitution
79. It shall be lawful for the Legislative Assembly to discuss amendments to the Constitution provided that such amendments shall not affect the law of liberty the succession to the Throne and the titles and hereditary estates of the nobles. And if the Legislative Assembly wish to amend any clause of the Constitution such amendment shall after it has passed the Legislative Assembly three times be submitted to the King and if the Privy Council and the Cabinet are unanimously in favour of the amendment it shall be lawful for the King to assent and when signed by the King it shall become law
Freedom of the press
7. (1) It shall be lawful for all people to speak write and print their opinions and no law shall ever be enacted to restrict this liberty. There shall be freedom of speech and of the press for ever but nothing in this clause shall be held to outweigh the law of defamation, official secrets or the laws for the protection of the King and the Royal Family. (the words ‘defamation, official secrets’ replaced the word ‘slander’ by effect of the Act of Constitution of Tonga (Amendment) Act 1990)
(2) It shall be lawful, in addition to the exceptions set out in sub-clause (1), to enact such laws as are considered necessary [or expedient in the public interest], national security, public order, morality, [cultural traditions of the Kingdom], privileges of the Legislative Assembly and to provide for contempt of Court [and the commission of any offence].
(3) It shall be lawful to enact laws to regulate the operation of any media.
Editorial note: (Subclauses (2) and (3) were inserted by the Act of Constitution of Tonga Amendment Act 2003). The words underlined in square brackets in subclause(2) were held by Webster CJ in Taione v Kingdom of Tonga  4 LRC 661 to be unconstitutional, and must accordingly be considered inoperative.
[41. Power of Legislative Assembly to repeal or amend this Constitution - (1) Subject to
the provisions of subclause (2) of this Article, no Bill repealing or amending or modifying or
extending this Constitution or any provision thereof or making any provision inconsistent with any
provision of this Constitution shall be deemed to have been passed by the Assembly, unless -
(a) At both the final vote thereon and the vote preceding that final vote it
receives the affirmative votes of not less than two-thirds of the total
membership (including vacancies) of the [Parliament]; and
(b) There is an interval of not less than 90 days between the date on
which that final vote was taken and the date on which the preceding
vote was taken;-
and no such Bill shall be presented to the [Queen’s Representative] for assent unless it is
accompanied by a certificate under the hand of the Speaker to that effect.
(2) No Bill repealing or amending or modifying or extending any of the provisions
of sections 2 to 6 of the Cook Islands Constitution Act 1964 or Article 2 of this Constitution or this
Article or making any provision inconsistent with any of those provisions shall be submitted to the
[Queen’s Representative] for his assent, unless -
(a) It has been passed by the [Parliament] in accordance with the
provisions of subclause (1) of this Article; and
(b) It has been submitted to a poll, conducted in a manner prescribed by
law, of the persons who are entitled to vote as electors at a general election of members of the [Parliament]; and
(c) It has been supported by not less than two-thirds of the valid votes
cast in such a poll; and
(d) It is accompanied by a certificate under the hand of the Speaker to that effect.
4. Discretions of the Head of State
5. [Queen’s Representative] to act on advice - (1) Except as otherwise provided in this Constitution, the [Queen’s Representative] in the performance of his functions as the representative of Her Majesty the Queen shall act on the advice of Cabinet, the [Prime Minister], or the
appropriate Minister, as the case may be.
(2) If the Cabinet, the [Prime Minister], or an appropriate Minister tenders advice
to the [Queen’s Representative as to the performance of any function as the representative] of Her Majesty the Queen and if the [Queen’s Representative] does not, within 14 days after the date on which the tendering of that advice comes to his notice, accept that advice or take some other action in relation thereto which he is entitled to take under the provisions of this Constitution or any other law, the [Queen’s Representative] shall be deemed to have accepted that advice; and an instrument
under the hand of the Secretary of the Cabinet, acting on the instruction of the [Prime Minister], to that effect shall operate as to the performance of the function concerned in accordance with that advice.
26. Head of State to act on advice
(1) Except as otherwise provided in this Constitution, the Head of State in the performance of his functions shall act on the advice of Cabinet, the Prime Minister or the appropriate Minister, as the case may be.
(2) If Cabinet, the Prime Minister or an appropriate Minister tenders advice to the Head of State as to the performance of any function of the Head of State and, if the Head of State does not, within 7 days after the date on which the tendering of that advice comes to the notice of the Secretary to the Head of State, accept that advice or take some other action in relation thereto which he is entitled to take under the provisions of this Constitution or of any Act, the Head of State shall be deemed to have accepted that advice; and an instrument under the hand of the Secretary to Cabinet, acting on the instruction of the Prime Minister, to that effect shall operate as the performance of the function concerned in accordance with that advice.
The Cook Islands Court of Appeal has underlined the dangers of importing the principles and practices of other systems into the Cook Islands context. The Court has stated that the drafters of the Cook Islands Constitution:
‘have attempted to spell out in some detail the powers, principles and procedures which in other systems, such as those of New Zealand and the United Kingdom, are left to practice...It should not be assumed that the traditional models have been carried over without change. As the Privy Council warned we should guard against forcing the new constitutional language into a traditional pattern if it does not fit.’
The conclusion must therefore be that the constitutional conventions which supply the framework for the formation and operation of government in the United Kingdom and in New Zealand - where there are no single, ‘written’, supreme law, constitutions of the Cook Islands type - must be approached with caution in the Cook Islands. There may be room for allowing such conventions to fill out or colour the rules of the Constitution where these may be incomplete or unclear, but not to modify or qualify rules in the Constitution which are on their face clear and complete.
This determination of the post-War Commonwealth Constitutions to specify and confine the powers of the Head of State was identified in the Pacific context by Professor Fry in 1982 and applied, for example, in the Cook Islands Court of Appeal in Reference by the Queen’s Representative. The strategy in these written Constitutions appeared to be that the Head of State had only those discretions which were expressly conferred by the Constitutions.
*Dr Alex Frame LL.D is a barrister and public law teacher who has advised governments for over thirty years on constitutional questions in several South Pacific jurisdictions. Most recently he has been Professor of Law at the University of Waikato. His biography of the New Zealand jurist Sir John Salmond (1862-1924), Salmond - Southern Jurist, was awarded the E.H. McCormick Prize at the 1996 Montana Book Awards, as well as the Law Foundation’s J.F. Northey Prize for best legal publication in the same year. In 2002 Alex’s study of the way in which our legal system might better reflect Maori customary law, Grey and Iwikau – A Journey into Custom, was published. In 2013, a ten-year research project was completed with the publication by Victoria University Press of Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Maori Customary Law, compiled, edited, and introduced by Richard Benton, Alex Frame, and Paul Meredith. Alex has this year completed a book about the London Missionary Society from 1797 in Tahiti, where he grew up.