From Matangi Tonga Magazine Vol. 18, no. 2, August 2003.

The Tongan way of life is not based in the right of the individual but that of the extended family, the church and the whole country. We have a collective peoples value, and that is where our strength is, and we do not want to give that up, says ‘Alisi Taumoepeau, Tonga’s Solicitor General.

‘Alisi and her husband, ‘Aisea Taumoepeau, Tonga’s Minister of Justice and Attorney General, were appointed as the new heads of Tonga’s Ministry of Justice following the forced resignation of the former Minister of Justice Tevita Tupou in 2001.

‘Alisi (48), MA (CM); LL M Hons., has been admitted as a Barrister and a Solicitor to the High Court of New Zealand, and is a legal Practitioner to the Supreme Court of Tonga.

In June, amid heated debate over planned Constitutional changes, and apparent differences between government and the judiciary over interpretation of the law, Matangi Tonga asked ‘Alisi about the proposed changes to the Tonga Constitution and media laws.

Pesi Fonua—The amendment to the Freedom of Speech, Clause 7 of the Constitution is seen by many people as an infringement of the Press Freedom that is guaranteed under the existing Clause 7. Is it therefore unconstitutional?

‘Alisi Taumoepeau—The Press Freedom that is spelled out in [the existing] Clause 7 is not an absolute freedom, there are limitations, which are spelled out in the laws on defamation, National Security, protection of His Majesty the King and the Royal Family; so already there are limitations to Press Freedom in this country. This new amendment is to clarify these limitations because we are all aware that there are changes in how the media operates and we have to make the law relevant.

So there is a need for a code of conduct to be written down. It is simply setting a standard, which we had assumed was there.

The only new limitation that has been added on to the existing limitations is our cultural heritage. These were unwritten limitations because we grew up with that inherited sense of respect for traditional leaders, to seniors in the community, and to church ministers, but today’s world is different and it is acceptable to be disrespectful and to be rude to people, and that is why it has to be written down.

The existing Clause 7 spells out that no law shall ever be enacted to restrict the liberty of Press Freedom, but this new Bill will amend this clause?

That is a legal issue, which touches on the sovereignty of parliament, it is the fact of law that every parliament can enact a law, otherwise the parliament is not sovereign. So the law is consistent in the common law and in Commonwealth jurisdiction, that if the wording of a piece of legislation says that it cannot be changed for ever, it does not mean that it could not be changed, it means that it can be amended according to procedure set out in the Constitution, and that procedure is in Clause 79 of the Constitution.

In 1991 Clause 7 [Freedom of Speech] was amended, so we have done it before by following the procedure. You can’t tie up the Legislative Assembly so that they can’t change a piece of legislation.

Why is it needed at this point of time to amend Clause 7?

First of all, to clarify it. Our Constitution is one of the oldest in the world, and some of the wordings do not cover the changes that are happening  in Tonga now. For example, to incite criminal activities is not forbidden by Clause 7, but it is understood that as a matter of law you cannot with your words incite someone to commit an offence. Criminal defamation, and sedition, are criminal activities that are not in Clause 7, and that is why it is needed to be amended.

The level of development in Tonga at the moment, means the Tongan media cannot regulate themselves. They cannot maintain a high standard suitable for the Tongan society, in terms of cultural values, or professionalism and there is a need for government to assist to regulate and to set a standard. Maybe later on, when the Tongan media can stand on its own two feet and regulate itself, then government may step out, leaving it for the media to regulate itself.  

One of the amendments to Clause 7 is the authorisation of government to draft legislation to control the regime of the media.

At the moment we have legislation, such as the Prohibited Publications Act, and the authority of the Chief Commissioner of Revenue in the Customs Act, to ban the entry of certain undesirable publications, but none of these is written down in Clause 7, so there will always be legal problems where those laws are seen as being unconstitutional because they are not written down in the Constitution. The tool of interpretation, which lawyers use, is that the Constitution is the ultimate authority and other legislation hangs on it, and if it is not authorised by the Constitution then these legislations are unconstitutional.

Those are some of the important amendments to Clause 7; it is now written down and clear without a doubt that the House and government may draft legislation.

This is only a small nation, we all know each other, and there is no need for us to go back in time and do things which are not in line with a country that prides itself as a Christian and a law-abiding country, those are the Tongan values that we do not want to lose.

The Prohibited Publication Act, does it deal with indecent publications and exclude seditious publications?  

The authority of the Prohibited Publication Act is in the public interest. It is the authority of the Privy Council in its own discretion to ban such a publication if it is not for the benefit of the country as a whole. This Act came into force in 1960, it is an old law, and in Section 3, subsection 1 it reads: ‘if His Majesty in Council is of the opinion that the importation of any publication is contrary to the public interest he may prohibit the importation of such publication.’ It is as clear as daylight. This is the basis of the Order in Council that was originally made against the Taimi ‘o Tonga newspaper, and the merit of that decision has not been decided by a court of law.

Now we will go on to Judicial Review, which is a process that deals only with judicial procedure, it does not deal with the substance. In a way, it is a short cut to stop a decision without having to look into the details of such a decision, and that is why anyone who would challenge a government’s decision would go for a judicial review and not a full hearing because it is a short cut to examine only the procedure to ascertain that it was done in the proper way. Regardless of whether you are right or wrong, but if the decision was not made in the proper procedure then you are wrong.

So when the Chief Justice declared the Order in Council was unlawful and invalid, it was wrong because His Majesty in Council had already decided that this publication was contrary to the public interest and the decision was made in the proper procedure. Government, on the other hand, stands firm that the decision it made was for the benefit of the country.

The other side are saying that they have the right to speak their mind at all costs, disregarding if it is in contrary with your own right or it is indifferent with government’s views, and that is what they want, but government is looking at it from a different angle. So all the court hearings that have been taking place on this matter are all Judicial Reviews.

Why then was it necessary to introduce a new sub-section 56a, which means that the laws passed by the Legislative Assembly of Tonga and Ordinances passed by the King with the consent of Privy Council shall not be subject to Judicial Review?

Judicial Review is a way that the court could get into an executive decision in a short cut. It was developed in the common law in other countries, but it was a procedure that was not written in our laws, but it was accepted through the Common Law. The historical background of such a procedure, is that it was used by the court over decisions passed by lower courts, and tribunals.

But one thing that must be pointed out that we are not the same as other monarchies, this monarchy is a Constitutional Monarchy and it is governed by the King, and in my view it is different from any head of state in the world.

For example, New Zealand has a Governor General, a representative of the Queen to govern that country, but really she does not play a role in the running of the country. We are different and our system is still in place, and a final decision that is made by the King, on what the King and Privy Council thinks is for the benefit of the country, is final. But the short cut, judicial review, has been used to do away with that right, and that is why it has to be written into the Constitution to protect the right of the King in Privy Council to make laws and it cannot be overturned by a court using the short-cut judicial review.

It can only be challenged through proper court procedure, where they will have to look into substance and the merit of such a decision.

No right has been taken, but you have to do things in the proper procedure, taking into consideration the procedure and the merit, instead of taking the short cut to stop the decisions that have been made by His Majesty the King in Privy Council, simply because of what may be considered a procedural error.

Without this new sub-section it would mean that the Supreme Court could overturn legislation that has been passed by Parliament and an Ordinance that has been passed by the King in Privy Council with the practice of Judicial Review?

His Majesty in Privy Council can’t pass Ordinances when the House is not in session, so it is very important that it should be written down in the Constitution.

So currently the Chief Justice has the final say on any piece of legislation that is passed by the King in Council or by the House?

But the three layers of our government are the Legislative Assembly to make laws, the Judiciary to interpret them and the King to govern. For me, the amendment is consistent with those responsibilities, for the Judiciary to interpret the laws, Parliament to make laws and for the King to govern the country.

Taking into account that the Judiciary comes under the Ministry of Justice and the Chief Justice has been in Tonga for a number of years, why is it that all of a sudden there is a difference in the interpretation of the law within the Ministry. I can’t recall the Chief Justice ever before dismissing an Ordinance of the King as being invalid and unlawful. What actually happened?

The Ministry of Justice is responsible for the running of the courts but the office of the Chief Justice and the judges is independent, and my greatest respect to them because they have a very important role to play in interpreting the law.

This is a time of reform in this country, there is an economic reform, and there is also a reform in the legal system. But during the process of reforming the law, it is important to write into the law what is very important to Tongans, because we have a different way of life, a different way of thinking, in our society and our culture, from the West. It does not mean that there is something wrong with what we have, it means that we will have more difficulties in explaining that, even though we are different, but we have a high standard of civilization. And that is why there is a friction, because of this tension but it is normal in any country that is currently in transition, and is trying to make a law that was based on a different country, with a different culture and a different value, to fit into our culture. That is the tension, and there is nothing wrong with it.

I believe that Tongans are well prepared to take a decisive role at this point of time, and to carefully look at some of these foreign concepts and decide which will be able to hold our future generations together and still be proud that we are Tongans. So really, it is a long term vision for our identity as people. Law is not an abstract thing, laws are just setting standards and rules that fit a society so that they can move life forward.

We should not be afraid to tell the world our thoughts and how we want to mould our Christian belief and our culture into our laws.

Matangi Tonga interviewed Chief Justice Ward in 1995 and at that time he said that the Tongan law was unique and unlike former British Colonies, where the British laws were imposed on them. Tonga used English law as a model but had its own approach to it, so it is quite different and we don’t assume that it is like English law?

I fully respect all the foreigners who come to this country and the contribution they have made, but I don’t think they can fully understand the real national pride, which is the basis of a Tongan’s life. There will be a time when we will differ because they would advocate the right of the individual, whereas the Tongan way of life is not based in the right of the individual but that of the extended family, the church and the whole country. We have a collective peoples value, and that is where our strength is, and we do not want to give that up. Our local complaints about traditional obligations is a local affair. It remains the marvel of foreigners of how a Tongan family or a village could afford and manage to achieve a certain objective that may seem to be beyond their capabilities, it is the collectivity of our combined effort, and that is how we manage to survive, and that is why with all the negative reports about the state of the economy but when people come here they realise that we are better off here than they are overseas, because they only see the individual. We don’t work that way, and part of this friction is exactly the same cultural tension over what is most important to western laws, the individual right, human rights, to explore it to its fullest, but we don’t believe that way.

When the Court of Appeal was established in 1990, separating it from the Privy Council it was hailed as a major achievement in separating the Judiciary from politics. The Appeal Judges are all foreigners with different values, is there going to be any change in that set up?

I don’t think so, the move that we have made is because the Constitution is the supreme law, the main legislation with supreme power, so the amendment is only with the Constitution.

My personal thinking is that once the Constitution is amended that other legislations, even the common law will have to abide with the Constitution.

The first Judicial Review was over the Order in Council that banned the Taimi ‘o Tonga. Government appealed to the Court of Appeal objecting the proposed Judicial Review, but before the Court of Appeal made its decision the Chief Justice went ahead and lifted the ban on the Taimi ‘o Tonga. The Court of Appeal then upheld the decision that was made by the Chief Justice. Did they follow the proper procedure?

That appeal case will be heard in July, and so at this stage I can’t comment on it while it is with the court.

I just want you clarify a few things about the Media Operators Bill 2003. Does this cover all Media Operators, Broadcasting and Print?

Radio and Television are covered under the Communications Act, the Media Operators focuses only on the papers.

So the requirement in the Communication Act is the same as with the Media Operators Bill, no difference?

No, just the same. With Media Operators it restricts that no foreigners may control any media operation in Tonga, and the Newspaper Bill stipulates that all operators must get a licence before they can operate, making it easier to monitor and to establish the standard that we want.

How would a publishing operation like ourselves, the Vava’u Press Ltd., be affected by the Media Operators Act?

Your operation is a Tongan company so you will not be affected, we are talking here only about aliens. The Media Operators Bill is only relating to overseas people, which can include companies.

The licensing is not taking away any right, it is just making sure that we know who is who, and to establish a standard.

The two media bills, what is the real need for them?

To regulate and to set a standard for the newspapers in Tonga, and there is nothing new about it. It is a common practice in law making. Suddenly there is a problem, and we realised that there is a need to enact a law to cover that gap. In 1960 government became aware of a need for a new act the Prohibition Act so it enacted a law to deal with the importation of prohibited publications. It is to deal with a particular problem, to set a standard and to establish a work ethic to guide them.

Tonga has been given a hard time by negative overseas media reports during the past few years. With the current friction and the new bills, I think it will make things even more difficult for Tonga, have you given it much thought?

We are a special people and I am not frightened to tell the world that we are setting a very high standard in Tonga because of our cultural traditions and our Christian beliefs. There is standard that we should meet, and if the world does not like that, I would really ask them to rethink. Tonga is very small and we can fit into a corner of Auckland, and therefore there is a need for us to live in harmony. I think what we are trying to do is to strike a balance, to allow people to run their lives, speak their minds, but recognise there are limits, there is no absolute freedom in this world.

There are also a number of things that are happening overseas, they are currently up in arms in New Zealand because their Attorney General is trying to reintroduce Criminal defamation. Britain is going through the same thing. It is just the fact of life, sometimes you go through without any restrictions and then suddenly you start introducing legislations and may become over regulated, so then you start loosening up again. It is the fact of life. The government responsibility is to observe trends, then decide that this is what we should do. On the other hand, the media is always vocal, and they express opinions off the cuff most of the time, without really knowing what is the background and the heart ache that goes into all these things. I respect that the overseas comments are made to the best of their knowledge but I am standing fast that we should proudly set a standard, high enough to pass on something of great value to the next generation.

Would you like to comment on an AFP news report, which claimed that the bill to amend the constitution, presented to parliament in early June, was a bid by the government for the King to have more power?

My comment is from the perspective of the Tongan Constitution. According to the Constitution and the way of life in this country, the King does not need any more power, because he has the power.

For example, there was a world-wide concern about terrorism, and we were the first in the region to pass a law dealing with terrorism. As soon as it was enacted comments came from overseas that government was trying to classify the [the Democracy advocates] as terrorists. Everybody is entitled to their interpretation, but that was never the intention of the government. I am just referring to that to show the wrong interpretation and the ignorance over the intention of the government. It was never the intention to catch Demos. The law against terrorism is the same world-wide and in the Commonwealth, because of the threat of terrorism. So instead of looking at the problem world-wide they look at themselves and say ah, government is trying to get us. I think it is the phobia of people who live in other countries and in their own situation who like to make comments but have no knowledge of what is happening in this country, and we respect their views and good luck to them, but I wish they would do their homework to find out about what really is going on.

People were ringing up wanting to find out why we want to categorise Demos as terrorists and so on, these people just want to spread bad publicity about Tonga.