“...…in light of the Government’’s success in adding "the cultural traditions of the Kingdom,"as a new conditionality on the freedom of speech and expression in Tonga, one can be forgiven for jumping to the conclusion that perhaps the Government wants the media and the Tongan people in general to revert to pre-Constitution Tongan standards in which back-chatting the chiefs was punishable by a serious flogging if not death.”

by Lopeti Senituli

(The opinions expressed in this article are those of the author and do not necessarily reflect those of the Tonga Community Development Trust, of which the author is Executive Director.)

On 3 June 2003 the Attorney General and Minister of Justice submitted to the Legislative Assembly a draft Bill to amend Tonga’s Constitution. This was the latest manoeuvre by the Government in its blind determination to ban forever the Taimi ‘o Tonga newspaper from Tonga.

The Bill emerged in the wake of Chief Justice Gordon Ward’’s judgement on 26 May 2003 that the Ordinance passed by the King and Privy Council on 4 April 2003 placing a further (fourth) ban on Taimi ‘o Tonga was void. Later the same day, the Chief Justice also placed a temporary injunction on another Ordinance passed by the King and the Privy Council on 16 May to invalidate Taimi ‘‘o Tonga’’s licence to trade (fifth ban). He further restrained the Government from revoking Taimi ‘o Tonga’’s licence until ““further Order of this Court”.”

Amendments to Constitution

The original draft of the Bill proposed to:

“further delimit freedom of speech and expression and freedom of the media (clause 7);

“abolish the powers of the Supreme Court to judicially review all legislation passed by the Legislative Assembly and Ordinances passed by the King and the Privy Council and empower the Assembly to declare what other matters shall be put beyond the reach of the Courts (new clause 56A);

“abolish the right to claim damages for any breach of the Constitution and limit the remedy to declaratory relief (new clause 29A).

It was an amateurish piece of legal draughtsmanship not worthy of a Constitution that is 128 years old. It drew immediate criticism and admonishment from Constitutional and legal experts. According to Guy Powles, an expert on Tonga’s Constitution, "Removal of the judicial power to review law-making under the Constitution attacks the fundamental concepts of "separation of powers" and "check and balances" which nations across the world have accepted as the essence of constitutional government. This constitutional amendment would render meaningless the notion of a Constitution that guarantees rights and freedoms. Laws or Ordinances could be passed and enforced against citizens, or by one citizen against another in breach of the Constitution, without any opportunity for the Courts to rule on the issue. The Constitution could be rendered unenforceable through the Courts."

A media release from Tonga...’s Human Rights and Democracy Movement (HRDMT) on 13 June announcing the beginning of a public education campaign against the Bill prompted a public statement from the Crown Solicitor...’s Office saying that the version of the Bill in circulation was erroneous and that they were working on a new draft. This was followed with claims by certain Cabinet Ministers in the Legislative Assembly that Assembly regulations were breached as the draft Bill had been circulated to the public and the media before it was formally tabled in the Assembly. They suggested that those responsible for the leak should be charged with ...‘contempt of parliament...”. (In 1996, 'Akilisi Pohiva-MP and founder of HRDMT, Kalafi Moala-Publisher of Taimi 'o Tonga and Filo 'Akau'ola-Editor of Taimi 'o Tongawere charged with "contempt of parliament", tried by the Legislative Assembly and sentenced to 30 days imprisonment. They were released by order of the Supreme Court after 21 days incarceration and were granted compensation for wrongful imprisonment in the latter part of 2003.) The new draft of the Bill hinted at by the Crown Solicitor's Office was formally tabled in the Assembly in early July sans the proposal to abolish the judicial review powers of the Courts.

Clause 7 of Tonga...’s 128-years old Constitution at the beginning of July 2003 read: "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." This clause has remained virtually unchanged since 1875. The new draft of the Bill proposed that clause 7 remains substantially the same but is renumbered as "clause 7 (1)". It then proposed two new sub-clauses as follows:

...– 7(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 offense.

...– 7(3) It shall be lawful to enact laws to regulate the operation of any media.

Clause 7(3) is superfluous as the Constitution already gives such powers to the Government and Legislative Assembly. Clause 7(2) is legal overkill. The Government already has a well-stocked arsenal of laws with over ten legislations to protect itself, His Majesty the King and the Royal Family, and the general public from media abuse and misuse. The Government in this instance first used the Customs and Excise Act (CAP 67) then the Prohibited Publications Act (CAP 54) and when the Supreme Court ruled that the manner in which these laws were applied contravened the Constitution on the grounds of illegality and infringed on the Taimi 'o Tonga's rights under clause 7 of the Constitution, the Privy Council went on an Ordinance-making spree for which it had legitimate authority.

The other amendment that survived from the original draft was the one to abolish the right to claim damages for any breach of the Constitution and to limit the remedy to declaratory relief. In the original draft it was numbered "clause 29A". But there was already a clause 29A. This was adopted in haste, on the behest of His Majesty, in January 1991, to make legal and Constitutional, retrospectively, the illegal sale of Tongan "Nationals" passports to 426 mainly-Asians buyers including Imelda Marcos and her children. This pre-empted Akilisi Pohiva's suit against Government that was scheduled to be heard by the Supreme Court early that year. The Government, which without a doubt must have regretted reminding the public of their earlier folly, quietly renumbered the clause "103A"!! The amendment was clearly designed to provide some form of impunity 'shield' for those instigating the raid on the country's Constitution.

The Ordinances passed by the King in Privy Council on 4 April and 16 May were clearly attempts to stay one step ahead of the Supreme Court so the Chief Justice's decision handed down on 26 May had been eagerly awaited.

Government's Lines of Defence

The Government's first line of defence in Court was that the Privy Council, consisting as it does of the King in Council is above the jurisdiction of the Courts and immune from review. They suggested that since there "is no right of review conferred expressly by any legislation of any decision of the Privy Council in Tonga...…. it is akin to a decision of the Governor General in the Australian context."

Chief Justice Ward did not accept this, stating: "what is unusual about clause 30 (of Tonga...’s Constitution) when compared with the law in many other constitutional monarchies is that our King is clearly included in the Executive arm of Government. This feature distinguishes it from the position of the Queen in English law and from that of the Governor General as her representative in Australia." Their second line of defence was that the provisions of section 9 of the Government Act require any Order in Council (like the one issued under the Prohibited Publications Act banning the Taimi 'o Tonga for the third time) to be laid before the Legislative Assembly first and until that is done, any attempt by the Courts to review it is an attempt to oust the jurisdiction of the Legislature.

Chief Justice Ward ruled: "I am afraid that misunderstands the role of the courts in cases of judicial review. All acts of the Executive Government are subject to the scrutiny of the court in relation to the proprierty of the action itself and the manner in which it was made. The fact any such regulation, rule or order may only be rescinded by the body which made it or by the Legislative Assembly does not prevent the court from considering whether it was a legitimate act of the Government in the first place." He added that the obvious risk implicit in the Government's contention is that an Order in Council that is totally unlawful (either because Privy Council had no such power to pass such Order or had exceeded a power it lawfully had) and which contravened the rights of every citizen could remain in force without challenge in the Court until the session of the Legislative Assembly ...– possibly many months away.

The Government's third line of defence revolved around the basic argument that when the King in Privy Council had created the Ordinance banning Taimi on 4 April, the King in Privy Council was exercising the "Royal Prerogative" as stated in section 7(d) of the Government Act. This section states, "The King and the Privy Council may between the meetings of the Legislative Assembly pass Ordinances enforcing the prerogative of the King which has been proposed by the King."

In his judgement Chief Justice Ward distinguished between "personal prerogatives" and "executive prerogatives." He said: "Under the law in Tonga, I am satisfied any prerogative powers are defined in, and governed by statute. They fall into two distinct groups: Those which are clearly stated to be the prerogative of the King alone, which I shall call personal prerogatives, and those which are executive acts of the Crown (with or without the personal involvement of the King) exercised by the Privy Council, Cabinet or other government departments, which I shall refer to as executive prerogatives ...… If the prerogative is a personal one, the courts have no jurisdiction to question the manner of its exercise. If it is an executive prerogative the court may determine the extent of it and the manner in which it is used." Examples of "personal prerogative" given in the judgement are the power to pardon; power to declare martial law; power to consent to a royal marriage, power to create a peer.

The Chief Justice then stated, "I accept that the reference in subsection 7(d) (of the Government Act) to the prerogative of the King is a "personal prerogative" but it does not create a prerogative right to pass an ordinance as appears to be the defence submission...…. I consider the meaning of the whole passage is that, when the King requests it in relation to a particular prerogative, Privy Council may pass an ordinance to enforce the prerogative. An example might be where the King wishes to declare martial law or to consent to a royal marriage and considers that any necessary statutory provisions cannot await the next session of the (Legislative) Assembly...…. I am satisfied that the intention of Tupou I (creator of Tonga's Constitution) was to codify and limit the King's personal prerogatives and so I cannot accept that the meaning of the second part of subsection 7(d) is to give the King the power to propose the creation of new personal prerogatives."

In conclusion he ruled: "The Ordinance (to ban the Taimi) did not enforce any personal prerogative of the King and insofar as Privy Council passed it under subsection 7(d) it was clearly ultra vires the section and is therefore void."

"The big unanswered question is, 'What was it that brought down the Government...’s wrath on Taimi 'o Tonga and now the country's 128-year-old constitution?"

The Ban is Lifted But ...…

In spite of, or because of, Chief Justice Ward's very clear judgement and supplementary ruling of 26 May lifting the bans on Taimi ...‘o Tonga, the Government bureaucracy suddenly reverted into its normal go-slow gear. This caused a further ruling by Chief Justice Ward on 9 June ordering the immediate lifting of the ban. The Government begrudgingly lifted the bans on 12 June. But they clearly had not given up because on 18 June they openly defied the Chief Justice...’s supplementary ruling of 26 May by submitting the Privy Council's Ordinance of 16 May (that attempted to invalidate Taimi ...‘o Tonga...’s licence to trade) to the Legislative Assembly. It was deferred until July by a ballot of 12 to 11. (Four of the 9 Nobles' Representatives in the Assembly including the Speaker, Hon. Tu'ivakano and the King's second son Hon. Ma'atu voted with 8 of the nine people's Representatives to defer). When the Assembly voted on this Ordinance on 29 July it had morphed into the Media Operators Bill, which proposed to limit foreign ownership of a newspaper operation in Tonga to 20 %. Quite clearly it was designed to lay the grounds to deny Taimi 'o Tonga an operating licence in 2004 if its shareholding structure did not change by then. The Government also tabled another Bill for an Act to Make Provision for the Regulating of Newspapers. Amongst other things, this Bill proposed to:

...– give the Minister responsible, authority to determine standards for newspapers but does not provide for input from the media industry, the reading public or civil society (section 8)

...– give the Minister absolute discretion in granting, refusing or revoking a newspaper operator's licence without any mechanisms for appeal (section 9)

...– give the Minister power to unilaterally declare any newspaper published outside the Kingdom a prohibited newspaper because it interferes in domestic politics or lacks a commitment to honesty, fairness, independence and respect for the rights of others.(section 11)

There is no questioning the need for setting standards for and regulation of the media in Tonga but this Bill proposed to give the Minister responsible absolute power and discretion.

Attack on the Chief Justice

On 19 May, the Supreme Court in a trial by jury acquitted three members of the Human Rights & Democracy Movement of eleven charges including sedition and forgery relating to a letter allegedly originating from the Palace Office claiming His Majesty had $350 million deposited in personal bank accounts overseas. Chief Justice Ward was the presiding Judge.

As the Supreme Court was preparing on 21 May to hear the case against the Privy Council's Ordinance of 4 April (the fourth ban), members of the Kotoa Movement (a pro-Establishment non-government organisation) publicly attacked Chief Justice Ward alleging he had breached clause 87 of the Constitution (which specifies that the Legislative Assembly determines the salary of the Chief Justice) as he was drawing a salary that was well beyond that which was approved by the Assembly. According to them the Chief Justice...’s salary for 2002, as approved by the Legislative Assembly was TOP$28,670, but he drew over TOP$250,000.

The Government issued a media statement on 24 May effectively absolving the Chief Justice of any wrongdoing. This was followed two weeks later by a TV panel discussion by three senior staff members of the Ministry of Justice, Prime Minister’’s Office and the Supreme Court Registry confirming that the Chief Justice had done no wrong. Members of the Kotoa Movement were not satisfied and they continued their attack.

The Minister of Finance in June finally explained in the Assembly that the contract of service with the Chief Justice is for 57,000 Stg per annum and the Assembly only approved TOP$28,670. For Chief Justice Ward...’s predecessors, the Minister went on, the difference between the two figures was provided by the British Government under a bilateral agreement. Since July 1998 when the present Chief Justice's contract began, the Tongan Government has provided the total salary. The Minister of Finance admitted there was a technical breach of the Constitution but said it is the Government's fault, not that of the Chief Justice. (The question that remains unanswered is the source from which the Government is drawing the Chief Justice's salary. It would be the ultimate irony if it is confirmed that the bulk of it is coming from the Tonga Trust Fund, which was created from the proceeds of the illegal sales of passports, that were made legal retrospectively, and most of which the King’’s Official Jester, J.D. Bogdanoff, has unofficially siphoned off!)

" The Assembly also passed the Newspaper Regulation Act for good measure. The general public was stunned!"

What of the Constitutional Amendments?

Because of the unequal distribution of the 30 seats in the Legislative Assembly, it was always a tough ask to expect the amendment to be defeated in a ballot. His Majesty the King currently appoints the 12 Cabinet Ministers; the 33 Nobles of the Realm elect nine from within their own ranks to represent them; and the common people elect nine representatives under universal suffrage. Traditionally the Nobles' Representatives have not voted against the Government's wishes. But there were enough examples from their voting record in 2002 to suggest that their vote is not always beholden to Government and therefore raised hopes amongst opponents of the amendment of a coup of sorts. Their hopes were fortified by the fact that the Speaker of the current Assembly (Hon. Tu'ivakano), the Chairman of the Committee of the Whole (Prince Tu'iPelehake-the King’’s nephew) and the Noble's representative from the Niuas (Hon. Ma'atu-the King’s second son) were relatively progressive in outlook and would not normally walk away from a scrap with the Cabinet Ministers if challenged.

The Constitutional Amendment Bill had its first Assembly reading on 12 August and was adopted by a ballot of 15 to 11. The Cabinet Ministers sensing a quick kill wanted the second and third reading to be done immediately but the Speaker sided with the opponents and granted a deferment until 7 October. Members of HRDMT, led by their seven Peoples' Representatives in the Assembly, started holding public meetings throughout Tonga in preparation for a major protest march on 6 October. They also started gathering signatures for a petition to His Majesty. Initially they were not allowed paid-airtime on public radio and television but authorities changed their minds when Church leaders protested and Government caught on and started hitting the airwaves themselves. Government also started holding public meetings too! The protest march in Nuku‘alofa on 6 October, according to media reports, saw at least 8,000 marchers (mainly women) which was easily the largest protest march in Tonga's history. There were smaller protest marches in the administrative capitals of the outer islands of Vava'u, Ha'apai and 'Eua.

The second and third ballots, on the amendments to the Constitution, took place on 16 October and were again adopted, this time by a vote of 16 to 11. The Assembly also passed the Newspaper Regulation Act for good measure. The general public was stunned! Members of HRDMT in the Assembly quickly regained their composure and drew up a petition to His Majesty requesting that He not grant His Royal Assent to the new legislations. It was to no avail. His Majesty granted His assent on 21 November.

Conclusion

In the beginning of 2004 the Government started issuing new Newspaper Operators Licences under the two new Acts. Taimi 'o Tonga, predictably, did not get one so is a prohibited newspaper. The Pohiva family’’s Kele'a newspaper was initially refused one but the Government reversed its decision when Tavake Fusimalohi, former General Manager of Tonga Broadcasting Commission was appointed ““editor” The new newspaper Talaki (established by former Taimi 'o Tonga staff Filo 'Akau'ola) was also initially refused a licence but was granted one when Seluini 'Akau'ola, Dean of Studies at the Pacific Regional Seminary in Suva was appointed “editor”. Matangi Tonga, the country’’s only regular magazine published in the English language, was also denied a licence on the basis of its shareholding structure. This decision was only reversed when Mary Fonua, took up a Tongan citizenship. The Kotoa Movement's Tonga Star newspaper had no problems with getting a licence. The Catholic Church's monthly, Taumu'a Lelei and the Free Wesleyan Church's monthly, Tohi Fanongonongo were also granted licences. Members of HRDMT have filed an application for judicial review of the amendments to the Constitution and the two new media laws. In the meantime a Tongan residing in Auckland, Alani Taione, has been charged under the new Newspaper Regulation Act for importing issues of Taimi 'o Tonga newspaper. His case is currently being heard in the Supreme Court.

The big unanswered question is, 'What was it that brought down the Government’’s wrath on Taimi 'o Tonga and now the country's 128-year-old constitution? The answer frequently given by expert witnesses called by the Government during the Supreme Court hearings was, "The Taimi has gone too far! The Taimi has gone too far!" This assumes there were standards by which the media industry had agreed to live by.

In the absence of formal standards agreed to by the media industry and by the Government, and in light of the Government’’s success in adding "the cultural traditions of the Kingdom,"as a new conditionality on the freedom of speech and expression in Tonga, one can be forgiven for jumping to the conclusion that perhaps the Government wants the media and the Tongan people in general to revert to pre-Constitution Tongan standards in which back-chatting the chiefs was punishable by a serious flogging if not death. This was an era when only Royalty and the Chiefs had souls and on dying were transported to Pulotu (Polynesian Paradise) whilst the soul-less common people simply reverted to being "eaters-of-the-soil" (kainanga-e-fonua) or earthworms. If that is the 'Tonga' the Government wants to revert to, then it should tear up the country's Constitution now.

Nuku'alofa

May 2004