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

Import bans on a Tongan language newspaper fail to stick

By Pesi Fonua

The long anticipated cat-and-mouse game between the Auckland-based weekly newspaper, Taimi 'o Tonga, and the Tongan government got off to a slow start on February 27, after weeks of uncertainty over whether a confrontation was ever going to take place.

With the more enthusiastic fans of the Tongan language Taimi, mainly in the English speaking overseas press, persistently asking the Tongan government when they were going to ban the Taimi, ‘Eseta Fusitu'a, the Secretary to Cabinet, glibly told the Matangi Tonga, that government was more or less being pushed into banning the Taimi by the number of people who called from overseas, asking when government was going to ban it.

Government had not pointed to any particular article that had caused offence, but the Minister of Police, Clive Edwards talked about standards and inflammatory content of the newspaper.

But whether or not the Taimi intended to provoke government into a head-on confrontation, the cat-and-mouse game was still going on when the 2003 Legislative Session opened in June, and government had been spectacularly unsuccessful in several attempts to ban the Taimi.

First try

For starters, was a sloppy move on February 27, when government published a Tonga Government Gazette Supplement Extraordinary with a Declaration by the Chief Commissioner of Revenue, the Minister of Finance Hon. Siosiua 'Utoikamanu, which declared "that all Editions, Volumes or part thereof of the newspaper Taimi 'o Tonga to be seditious or advocating violence, lawlessness or disorder." This meant that the Taimi, which is printed in New Zealand, became a banned import.

When the import ban became headline news in the region, and turned a burning international spotlight on Tonga, government wanted to make doubly sure that the Commissioner's Declaration would really stick, so another Tonga Government Gazette Supplement Extraordinary was published on Friday March 7. This time it was an Order-in-Council, and under the Prohibited Publications Act (Cap 54), declared, "His Majesty in Council hereby prohibits the importation of any issue of the publication of Taimi 'o Tonga or part thereof." But they could not make it stick.

The Taimi hired a constitutional lawyer from Auckland, and filed a case with the Supreme Court, calling for a Judicial Review.

But Government did not think that it was appropriate to have a Judicial Review and immediately lodged an appeal to the Appeal Court to intervene and stop the Chief Justice from proceeding.

The Chief Justice Gordon Ward decided to proceed with the Judicial Review anyway, and on April 4 passed a decision, declaring that the February 27 declaration by the Chief Commissioner of Revenue was unlawful, invalid and unconstitutional. He also declared that the Order In Council that was made on March 7 was unlawful and invalid.

Reimposed ban

Then the momentum picked up. Immediately after Chief Justice Ward passed his decision against government on the morning of April 4, the government the same afternoon published a Tongan Government Gazette Supplement Extraordinary, declaring an Ordinance for the Protection of the King, Royal Family, Government and People of this Kingdom from Abuse of Press Freedom. This Ordinance reimposed the ban on the Taimi and also stated that actions done under this Ordinance, "shall not be subjected to any judicial review".

So there, it might seem to end. But it did not.

If government thought that they were hard done by, they got another smack when the Appeal Court passed their decision on April 8 refusing their appeal.

On May 21 government published another Tonga Government Gazette Supplement Extraordinary, an Ordinance for the imposing of restrictions on Ownership of Licence by Media Operators in the Kingdom.

On May 26 the Chief Justice Gordon Ward, after yet another Judicial Review ordered that the Ordinance of April 4, for the Protection of the King, Royal Family, Government and the people of this Kingdom from Abuse of Press Freedom was unlawful, unconstitutional and therefore invalid.

On May 27 the, now famous newspaper, Taimi 'o Tonga arrived at the Fua'amotu International Airport from New Zealand, but the customs officers would not release it from cargo because they had not been officially authorised to lift the ban.

The situation ground to a stalemate, where a court order had been made but the government authority had not informed the customs officers at the airport to release the Taimi.

Ban lifted again

On June 10 government applied for a stay of execution of court order, but on June 11 Chief Justice Ward refused the application and, again, lifted the ban.

On June 21 we received a Tonga Government Gazette Supplement Extraordinary that was published on May 30. It declared under the Customs and excise Act that "all Editions, Volumes or part thereof of the newspaper Taimi 'o Tonga to be a prohibited import are hereby revoked."

Is this the end of this cat and mouse game?

The answer is no. Because some serious changes are being proposed for the rules of the game, it is now up to the Legislature to decide whether these new rules are acceptable and whether or not a new series of contests in the arena of Press Freedom will be allowed to proceed.