Abstract:
Tonga’s Constitution is one of the oldest in the world. It is a remarkable document with a remarkable history. The Constitution opens with a firmly stated Declaration of Rights, extending over 32 provisions. Like many rights documents around the world, the rights provisions use open and absolute language. This thesis looks at the approaches of the Tongan Courts to interpreting these rights provisions. Particularly, it examines the relevance of culture in interpreting constitutional rights, focussing on the recent case Taione v Kingdom of Tonga. It argues that even within a conception of universal rights, it is undeniable that what may be considered an acceptable or permissible limit to a right varies between societies. These permissible limits are established by balancing the values protected by the right against other values. This paper argues that in finding the values for that equation, it is both possible and necessary to give regard to the values of the cultures within the relevant society. This allows rights to be meaningfully located within the society whose constitution is being enforced. It further argues judges must try to acknowledge the values that form part of their interpretation. Judges’ own values inevitably form part of their adjudication process, often supported by selected precedent. However, an overreliance on common law or comparative law precedent results in a cultural bias as culturally based values are introduced into the balancing process without acknowledgement. Because of the intimate link between culture and identity of a people, there is an obligation on judges in Pacific courts to engage with cultural values in constitutional interpretation, in order to ensure that there is legal recognition of the identity of the peoples to whom the Constitution applies. Meaningful engagement with cultural values requires a greater self-consciousness in constitutional interpretation: an attempt to include a greater articulation of values in areas of judgment that are typically value-silent.