Tonga courts to consider tradition and custom during trials

Tonga' Parliament has unanimously voted to change the constitution to allow Tongan tradition and custom to be applied in the courts.

Under the legislative change, introduced by the acting Justice Minister, Samiu Vaipulu, they want Supreme Court Judges to take account of Tonga's traditional culture when they are making decisions.

RNZ Pacific correspondent Kalafi Moala said, under the Clause 89 amendment, the judges would be required to consider custom, traditions and culture.

"In other words if there are customary things that are in place, that whatever judgement they do in court they need to take those into consideration, to influence or affect their judgement."

Some in Tonga have welcomed the incorporation of tradition into the Constitution.

A former solicitor-general, Aminiasi Kefu, said culture was relevant to the interpretation of law but he said that was already happening in Tonga.

He said Tonga culture is already recognised by the courts with the Tonga Apology being allowed during mitigation, but sometimes defendants have abused this.

"The courts have taken a cautionary approach to considering when they perform Tongan Apologies by the family of the defendant against the victim, because the courts and judges, since the 1990s have realised that some defendants have just gone in and conducted the Tongan Apology just as a way of getting out of culpability," he said.

Acting Justice Minister, Samiu Vaipulu, said the constitutional changes were just following similar moves in the Pacific.

Vaipulu acknowledged that the 'Tongan Apology' was already part of the legal process, but he said it was not written into law.

"It is something that other Pacific Islands have done, but here in Tonga we haven't done it, so there is no law or legislation being changed at all, it is just for the judges to take it into consideration."

Samiu Vaipulu said the amendment didn't need to go to public consultation because was is not changing any law, just adding to it.

The Clause 89 amendment still had to be signed off by King Tupou VI before it becomes law.