“TAIMI ‘O TONGA AND THE FUTURE OF THE RULE OF LAW IN TONGA”
(by Lopeti Senituli)

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 forever ban 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 the Privy Council on 4 April 2003 placing a further (fourth) ban on the Taimi ‘o Tonga was void. Later the same day the Chief Justice added a ruling, delivered in Chambers, placing a temporary injunction on another Ordinance passed by the King and the Privy Council on 16 May that purported to invalidate Taimi ‘o Tonga’s licence to trade (fifth ban). He further restrained the Government, its “servants or agents or otherwise howsoever” from revoking Taimi ‘o Tonga’s licence until “further Order of this Court.”

Amendments to Constitution

The Bill proposes to further delimit the freedom of speech and _expression and freedom of the media (clause 7); abolish the powers of the Supreme Court to judicially review all legislations passed by the Legislative Assembly and Ordinances passed by the King and the Privy Council and empowers the Assembly to declare what other matters shall be put beyond the reach of the Courts (new clause 56A); to abolish the right to claim damages for any breach of the Constitution and limiting the remedy to declaratory relief (new clause 29A). It is a amateurish piece of legal draughtsmanship not worthy of a Constitution that is 128 years old.

Clause 7 presently reads, “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.”

The amended clause 7 will look like this:

“7(1) All the persons (sic) of the Kingdom has the right to freedom of speech and _expression. No one shall exercise this right to infringe upon the rights of others and the cultural traditions of the Kingdom, or to violate public law and order and national security.

(2) The Legislative Assembly may by law impose on the rights conferred by clause (1) such prohibition or restrictions as it considers necessary or expedient in the public interest, national security, public order and morality, for the protection of the King and the Royal Family, cultural traditions of the Kingdom, privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence.

(3) The regime of the media shall be determined by law.”

Implications of Amendments

The obvious difference is the disappearance of the phrase “There shall be freedom of the… press for ever” to be replaced by the ominous “The regime of the media shall be determined by law”. Then the “enjoyment” of the freedom of speech and _expression is de-limited only to “persons of Tonga” who must not infringe on the “cultural traditions of the Kingdom,” in addition to those traditional borders that normally demarcate the outer borders of the field of enjoyment of basic human rights and fundamental freedoms viz rights of others, public law and order and national security. But that’s not all. The freedom of speech and _expression is further made subject to the whims of the 30-members of the Legislative Assembly only 9 of whom are elected under universal suffrage. The Assembly is also given a virtual blank cheque as to the additional restrictions they can impose through the introduction of the amorphous social-constructs, “in the public interest” and (again) “the cultural traditions of the Kingdom.”

The new clause 56A will bring to a violent end the rule of law in Tonga. 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 concept 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 which 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 would be rendered unenforceable through the Courts.”

The third amendment purports to introduce a new clause 29A. But there is 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 sales of Tongan “Nationals” passports to 426 mainly-Asians buyers including Imelda Marcos and her children. The newest clause 29A will provide an “impunity” shield for the Government and especially for its legal minders, The Minister for Justice & Attorney General and the Minister for Police, who are demonstrably leading the attack on Taimi ‘o Tonga and the raid on the country’s Constitution.

There really is no need for all this. The Government presently has at its disposal a well-stocked arsenal of legislations to protect itself, the Royal Family, and the public in general from media abuse. Such legislations include: the Legislative Assembly Act (CAP 4), Official Secrets Act (CAP 5); The Criminal Offences Act (CAP 18); The Defamation Act (CAP 33); The Police Act (CAP 35); The Order in Public Places Act (CAP 37); The Public Order (Preservation) Act (CAP 38); The Prohibited Publications Act (CAP 54); The Customs and Excise Act (CAP 67) and the Tonga Broadcasting Commission Act (CAP 100). The Government in this instance first used the Customs and Excise Act and then the Prohibited Publications Act. The Supreme Court has ruled that the manner in which these laws were applied contravened the Constitution on the grounds of illegality and infringed on the Taimi’s rights under Clause 7 of the Constitution. And then the Privy Council went on an Ordinance-making spree.

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 is 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 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 the 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 reads, “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 CJ Ward distinguished between “personal prerogatives” and “executive prerogatives”. He stated, “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.

CJ Ward then states, “I accept that the reference in subsection 7(d) 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 Ban is Lifted

In spite of, or because of, Chief Justice Ward’s very clear judgement and supplementary ruling of 26 May effectively lifting the bans on Taimi ‘o Tonga, the Government machinery necessary to implement it suddenly went into slow-mo gear. This necessitated a further ruling by CJ Ward on 9 June restraining the Government from treating the Taimi ‘o Tonga as a prohibited publication and ordering the lifting of the ban forthwith. The Government only 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 purported 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 voting with 8 of the nine people’s Representatives to defer).

The Attack on the Chief Justice

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

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 that he had breached the Constitution by virtue of the fact that he was drawing a salary that is in contravention of clause 87 of the Constitution (which specifies that the Legislative Assembly determines the salary of the Chief Justice). The Chief Justice’s salary for 2002, according to the allegation, 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 wrong doing. This was followed up two weeks later by a TV panel discussion by 3 senior staff members of the Ministry of Justice, Prime Minister’s Office and the Supreme Court confirming that the Chief Justice had done no wrong. Members of the Kotoa Movement were not satisfied and they kept up their attack.

The Minister of Finance on the 3rd week of June finally explained in the Assembly that the contract of service with the Chief Justice is for 57,000 pounds sterling 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, CJ Ward’s current contract began, the Tongan Government has provided the total salary specified in the contract of service. He impliedly admitted that there was a technical breach of the Constitution but that it is the Government’s fault and not that of the Chief Justice.

The Attorney General & Minister for Justice also announced in the Assembly that 3 members of the Kotoa Movement have been charged with contempt of court. The question that remains unanswered is from which source is the Government drawing the Chief Justice’s salary. It would be the ultimate irony if it is confirmed that it is coming from the Tonga Trust Fund, which was created from the illegal passport sales and the bulk of which, the King’s Jester, J.D. Bogdanoff siphoned off.

What of the Constitutional Amendments

The Constitutional Amendment Bill has stirred a hornets nest much to the Government’s regret. A HRDMT media release of 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 current circulation was erroneous and that they were working on a new draft. This was followed up with the 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 tabled in Assembly. They suggested that those responsible for the leak should be charged with “contempt of parliament”. In 1996, ‘Akilisi Pohiva, Kalafi Moala and Filo ‘Akau’ola were charged with contempt of parliament tried by the Legislative Assembly and were sentenced to 30 days in prison. They were later released by the Supreme Court and were recently granted compensation for wrongful imprisonment.

Some of the most senior of the Nobles’ Representatives in the Legislative Assembly have also spoken out publicly against the amendment Bill especially Prince Tu’ipelehake, the King’s nephew and Chair of the Committee of the Whole of the Legislative Assembly. Some of the Church leaders have also spoken publicly against the Bill though they made clear they would rather pray for its defeat rather then join a protest march against it. The Tonga National Council of Churches issued a statement opposing the Bill and was the subject of two if its weekly radio-programmes on government radio A3Z. The seven People’s Representative in the Assembly who are members of the HRDMT are confident that together with the majority of Nobles’ Representatives they can outvote the Government’s 12 Cabinet Minister and defeat the amendment Bill.

Conclusion

The question that has been on everyone’s lips is: What is it that has brought down the Government’s wrath on “Taimi ‘o Tonga” and now the country’s 128 year old constitution. The answer that was frequently given by expert witnesses called by the Government during the Supreme Court hearings is that “The Taimi has gone over the top”, “The Taimi has gone over the top”. This assumes that there were standards (the top) by which the media industry had agreed to live by. In his expert evidence, Mr. Sangster Saulala, President of the Tonga Media Association and member of the Kotoa Movement admitted that his Association’s Code of Ethics was only formally adopted at a meeting of some of its members (excluding Taimi ‘o Tonga) on 26 February 2003, the day in which the first ban was imposed on “Taimi ‘o Tonga”.

In the absence of formal standards agreed to by the media industry and in light of the persistence of the Government’s wishes to add “the cultural traditions of the Kingdom” as a new conditionality on the freedom of speech and _expression in the amended clause 7 of the Constitution, one can be forgiven if one jumps to the conclusion that the Government wants the media and the Tongan people to return to the pre-Constitution Tongan standards in which back-chatting the chiefs was punishable by a serious flogging if not death and it was politic to turn an approving blind-eye to the extra-marital dalliances of the Noble and Royal classes. An era when only the chiefs had souls and migrated to Pulotu (Polynesian Paradise) on dying, whilst the soul-less common people simply reverted to being “eaters-of-the-soil” (kainanga-e-fonua) or earthworms. If that is the “Tonga” that the Government wants to return to then they have a major battle on their hands.

(Lopeti Senituli is the Director of the Office of the Human Rights & Democracy Movement in Tonga.)

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