Tonga Constitution needs correction to secure Press Freedom [1]
Monday, May 6, 2013 - 22:27. Updated on Monday, September 9, 2013 - 18:40.
On World Press Freedom Day May 3, Tonga's Attorney General Neil Adsett told journalists in Nuku'alofa that while Tonga's Constitution guarantees Freedom of Speech and Press Freedom, there remains in the Constitution two other conflicting sub-clauses, inserted by an amendment in 2003, which are partly void and should be changed so that it is not misleading.
"In the eight years since these court cases the matter has been allowed to rest, but the final chapter has not yet been written," he said.
There were also three other pieces of law that were passed in 2003 but were ruled unconstitutional by the courts and are treated now as not being part of the law and should be formally repealed.
He said the Constitution is the principle law of Tonga enacted in 1875 making Tonga one of the very earliest places in the world in which Freedom of the Press is enshrined.
"Clause 7 of the Constitution has always stood as a bastion of free speech, and what is now sub-clause 1 remains unchanged and operates fully. All other laws will be tested against it to see whether they fail or not," he said.
The Tongan Constitution sub-clause 1 states, "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 forever 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."
Void
In 2003 Government had made laws that inserted the two new sub-clauses under Clause 7 of the Constitution.
The Attorney General said both of these provisions still appear in the law but the then Chief Justice in a case, Taione v Kingdom of Tonga 2005, found sub-clause 2 to be void.
The Attorney General hoped that as part of their revisiting and consolidating the laws in Tonga that government would say, "we can't allow these bits to sit in the constitution if they are held not right", and hopefully, before too long, get in there and tidy it up.
In addition to the change to the Constitution there were three other pieces of law that were passed in 2003 but were ruled by the court to be unconstitutional and are now treated as not being part of the law. They included the Newspaper Act 2003, Media Operators Act 2003 and Protection from Abuse of Press Freedom Ordinance 2003.
"When the Constitution is tidied up these should be formally repealed," he said.
Modernization
In his World Press Freedom day address at the Hotel Nuku'alofa, the Attorney General outlined other laws that impact press freedom, including contempt of court and defamation.
"These aspects of the law are not easy and it will be a challenge for you to operate with these laws. It is important for Tonga that you in the media both continue to seek out and report matters of public concern, especially as Tonga continues on the development and modernization of its system of government. There was a big bold start with the Constitution of 1875, and some big steps recently – but there is surely a long way to go," he said.
Independent
Neil has made a career out of revising the laws of countries throughout the world. In Tonga he completed the revised edition of the Tongan laws, and updated the laws and responsible for the legal process involved in the Constitutional and Electoral Reforms.
He is the independent chief legal adviser to cabinet and government in charge of criminal and civil actions for government.
"An advantage of an Attorney General being independent is that he can be seen as just giving straight legal and sensible advice without people outside government thinking it is biased towards government."
In 2007, he was appointed as the Acting Anti-Corruption Commissioner.
Neil Adsett took up his position in January 2012 as the first Attorney General appointed under the reformed constitution of Tonga where the duties and the independence of an Attorney General is clearly spelled out.