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R v Pohiva [1998] TOLawRp 5; [1998] Tonga LR 27 (5 March 1998)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

Cr 530/95

R

v

Pohiva

Finnigan J
2 - 5 February 1998; 5 March 1998

Criminal law — defamation of the King — acquittal

In April 1994 the defendant (well-known as a politician and an activist) gave an interview to a journalist from the Wall Street Journal. On 23 August 1994 the Wall Street Journal published an article about the defendant. In this article the defendant was quoted as saying “The King is a dictator” and he was purported to have made a number of accusations against the King. On 2 December 1994 the Minister of Justice and Attorney General wrote to the defendant. The purpose of the letter was to seek an explanation in writing for the article, an apology from the defendant, and a retraction to be published in the Wall Street Journal. The defendant owned a newspaper (Ko e Kele’a) and published the Minister’s letter as well as a reply from the defendant. The defendant was charged with two counts of defamation of His Majesty the King contrary to section 3 of the Defamation Act (Cap 33).

Held:

1. It was necessary for the Crown to establish only: that words reasonably conveying the defamatory meaning or words like them were said by the accused; that the accused intended to say those words, or words like them; that those words or words like them were published; and that the publication damaged the reputation of the King and/or exposed him to hatred, contempt or ridicule. All of that must be established as a single whole beyond reasonable doubt.

2. In its entirety the article was the journalist's own account constructed from what he was told. The only evidence of what he was told was that of the accused during the trial. The journalist's words were not a sufficient basis for the criminal charge that the accused spoke defamatory words as alleged in count 1. On that charge he was acquitted.

3. The questions raised were, did the accused say what was alleged and, if so, had he published “matter damaging the reputation of [the King] or exposed him to hatred, contempt or ridicule or caused him to be shunned”?

4. In all that he wrote there were no words which, as a matter of fact, imputed corruption, dishonourable conduct, or dishonourable motives to the King or words which damaged the reputation of the King or exposed him to hatred, contempt, or ridicule, or caused him to be shunned. On count 2 the accused was also acquitted."

Cases considered:

Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; 124 ALR 1

Stephens v West Australian Newspaper Ltd [1994] HCA 45; (1994) 182 CLR 211

Lange v Atkinson [1997] 2 NZLR 22

Statutes considered:

Constitution of Tonga Cap 2

Criminal Offences Act Cap 18

Defamation Act Cap 33

Evidence Act Cap 15

Counsel for prosecution: Mr Waalkens & Miss Bloomfield
Counsel for defendant: Mr Tu’utafaiva & Mrs Taufaeteau

Judgment

Introduction

His Majesty the King rules the Kingdom of Tonga, and in doing that he is governed by the Law. The parties and all witnesses in the present case agree that the King governs Tonga in accordance with the Constitution and the Law. To say that he is a dictator is factually and legally wrong. The primary Law of Tonga is the Constitution (Cap 2) and it makes that clear in many places. Section 34 prescribes the oath, which His Majesty took upon succeeding to the Throne. An oath to govern in conformity with the Constitution and the Laws. See also Sections 31, 32 and 34, and section 17. The Constitution protects from oppression by royal prerogative many freedoms (see sections 4, 5, 7, 9 and following).

By s 50 His Majesty the King is bound to appoint a Privy Council to assist him in his important functions. If the King and Privy Council make ordinances, such ordinances are subject to the signature of the Minister concerned and subject to the Legislative Assembly, which may confirm amend or rescind them. The King by himself may therefore make no Laws. He may however, by s 56, refuse to sanction any Law which has been put to him by the Legislative Assembly.

The balancing of that is the Constitutional prerogative of His Majesty the King to appoint the Privy Council, the Ministers and thus the majority in the Legislative Assembly (ss 49, 50, 51, 59 and 60). This gives a great deal of power to the King, but the source of that power is the Constitution. By definition in the Constitution (s 31) the form of the government of Tonga is a Constitutional Government under His Majesty the King.

The Supreme Court has jurisdiction in all cases in law and in equity arising under the constitution and the laws of the Kingdom and in all matters concerning treaties with foreign states and in all cases effecting public ministers (s 90). The judges are sworn to act impartially and like the King to uphold the constitution and the laws (s 95). Any citizen alleging dictatorship may require the Supreme Court to uphold the constitution. Neither are the judges above the constitution they also are bound by it.

The Facts: Count One

A journalist sought an interview with the accused who was well known as a politician and an activist seeking political change in Tonga. The accused was willing and for reasons not significant in the case they met at Honolulu in the United States. This was in April 1994. The accused answered questions and expounded his views. In evidence he told the Court the things he says were discussed and some of the things he said. Some months later, the journalist published through his newspaper (the Wall Street Journal of 23 August 1994) an article about the accused. Immediately several 90 people sent copies of the article to Tongan Representatives both abroad and on Tongan soil. It quickly became known in Tonga.

From the article I shall set out, without their contexts, those parts which have caused the charge to be laid in Count 1. Those parts of the article are as follows.

In Laid-Back Tonga,
A Gadfly Commits
Crime of Being Rude

***
The Monarchy Doesn’t Like
Akilisi Pohiva’s Manner
Or His Reformist Attacks
----------
BY MICHAEL J. YBARRA
Staff Reporter of THE WALL STREET JOURNAL

NEIAFU, Tonga - This remote and far-flung Pacific archipelago has been ruled by royalty for most of its 3,000-year history, the last thousand years by the same family.

Gadfly Akilisi Pohiva would like to change that by curbing the king’s power and promoting democracy, but he knows it will take time. “Ten years, 20 years,” he says. “We’re not going to get change overnight.”...

Mr Pohiva, a 52 year-old former school teacher, says he is no radical. But he has accused King Taufa’ahau Tupou IV and his nobles of financial legerdemain, and he has called for the formation of a democratic party to run Parliament and share power with the monarch. “The king is a dictator,” he says ...

Open criticism is perhaps the biggest tapu in the nation that gave English the very word taboo. “No bad moral habit appears to a native of Tonga more ridiculous, depraved and unjust than publishing the faults of one’s acquaintances and friends,” observed William Mariner, a British sailor held captive here almost 200 years ago. 1t is better, they think, to assassinate a man’s person than to attack his reputation.”...

One of his first attacks was on the king’s practice of selling passports to foreigners, allegedly in violation of Tonga’s citizenship laws. But being a near-absolute monarch gave the king certain leeway here. In 1991, he simply had the passport laws changed. And he ignored Mr Pohiva’s demand for an accounting of what became of the $27 million supposedly raised by the passport sales. ...

More recently, Mr Pohiva has castigated the king for letting his daughter, Princess Salote Pilolevu Tuita, set up a private company with rights to launch satellites into orbital slots in space claimed by Tonga. Last year, Tongasat Ltd, began leasing its place in space to a U.S. concern, Rimsat Ltd., of Fort Wayne, Ind. Mr Pohiva asserts that most of the profit goes to the princess and her American partners, and just a sliver to Tonga. The king ignored Mr. Pohiva’s demands for an accounting ...

On those statements the Crown bases Count 1, which it has undertaken to prove beyond reasonable doubt:

STATEMENT OF OFFENCE
(Count 1)

DEFAMATION of His Majesty the King contrary to section 3 of the Defamation Act (Cap 33) as amended in Act 15 of 1993.

PARTICULARS OF OFFENCE:
(Count 1)

SAMUELA ‘AKILISI POHIVA on or about August 1994 did defame His Majesty the King by telling Michael J. Ybarra, which was later published in the Wall Street Journal of 23 August 1994, any one or more of the following defamatory statements:-

— The King is a dictator

— The King and his nobles are guilty of financial legerdemain

— The King has ignored requests to account for the funds from the sale of Tongan Passports. In addition the innuendo of these words was that 1. The King has concealed or has been a party to the concealing of funds derived from the activities of the sale of Tongan Passports; and/or 2. The King has done something improper with the funds derived from the sale of Tongan Passports.

— The King has ignored requests to account for the funds from the activities of Tongasat.

In addition the innuendo of these words was that 1. The King exercises control over the activities of Tongasat, and/or 2. The King has concealed or has been a party to the concealing of funds derived from the activities of Tongasat; and/or 3. The King has done something improper with the funds derived from the activities of Tongasat.

One citizen in particular was upset. She was Mrs Papiloa Foliaki. In 1978 she had been elected to the Legislative Assembly for one term and she considers herself a colleague and friend of the accused. She told the Court that she was shocked, sad, disappointed and angry. To her mind the article was very dangerous, very malicious and an article that would disturb the peace. She said she was very, very deeply hurt and was praying, hoping it was a mistake. She said she had no evidence the King had ever grabbed anything without asking and that she thought of Idi Amin. She approached the accused, but what he said to her is not the subject of any charge against him.

Mrs Foliaki said she began to have doubts. The accused, she reasoned, knows more about these things than she did. Although she did not believe the King is a dictator, perhaps there was some substance to what had been published. She wanted the matter settled.

Mrs Foliaki and other women organised a petition which was signed by about 425 women. They took the petition to the Legislative Assembly asking Parliament to stop the accused from making statements like those that the journalist had published. The accused was one of 3 people’s representatives who presented the petition. This was on 10th November 1994. Although it was not in evidence, I was shown a translation of the petition. It protested at statements of the accused generally, including but not confined to what was reported in the Wall Street Journal. The Legislative Assembly voted approval of the petition but took no other action.

The Facts: Count Two
On 2 December 1994 the Minister of Justice and Attorney General wrote a letter to the accused. It is the basis of what followed and I set most of it out here:

2nd December, 1994.

Mr A Pohiva

Sopu

Nuku’alofa

TONGA

Dear Sir

Re: Article in the Wall Street Journal — Tuesday,23 August 1994

I have had drawn to my attention an article which appeared in The Wall Street Journal on the 23rd of August 1994. You will recall that this article caused a petition to be lodged and discussed in the Legislative Assembly on the 10th November 1994 and a copy of the article was given to all members including yourself.

The entire article makes a very serious slur on His Majesty and the monarchy as well as His Royal Highness Crown Prince Tupouto’a and others. Its tenor is also extremely derogatory of the Kingdom of Tonga.

At this stage I merely emphasise some of the points arising in the article as follows:

(a) In the first column the article recites your accusation of His Majesty and his nobles “of financial legerdemain”. The word legerdemain refers to an act of trickery or deception. The word is often used coexistent with the phrase “sleight of hand”. A criticism of financial legerdemain is a very serious criticism.

(b) That same paragraph ends with the phrase “The King is a dictator” — a quote from you. The word dictator connotes a sinister meaning referring to an oppressor or a tyrant.

(c) ...

(d) The third column refers to “... the King’s practice of selling passports to foreigners ...”, and later to an allegation that His Majesty has failed to account for the funds. This clearly infers His Majesty has, or may have, misappropriated the funds. As you know these funds have been audited and the results made public. This allegation is sinister in its intent.

(e) The same column refers to Tongasat — again asserting that His Majesty ignored a request for an accounting — and infers misappropriation by His Majesty. This is without any basis and is quite untrue.

(f) ...

Your conduct has been so high handed in this instance that I consider you have committed an offence against the state by speaking seditious words in breach of Section 47 of the Criminal Offences Act — an offence that carries imprisonment for a period of up to 7 years.

In addition, a serious criminal defamation has taken place of His Majesty King Taufa’ahau Tupou IV and His Royal Highness Crown Prince Tupouto’a and others. At this stage I am particularly concerned with regard to your criticism of His Majesty the King and the Crown Prince.

My purpose in writing to you is to seek immediately from you an explanation in writing. In addition, I expect an apology from you in terms to be settled with me. I consider a retraction should be published in The Wall Street Journal.

I must assure you that this matter is regarded as extremely serious and I require your immediate written response within 14 days from the date of this letter.

Yours faithfully

Sgd. D. Tupou

(Hon. David P. Tupou)

Attorney General & Minister of Justice

DPT/mf

The accused responded to that letter by publishing it and with it his reply. This was in a newspaper of his own, Ko e Kele’a and the reply was dated 6th December 1994. His reply was in Tongan but in an agreed English translation it was (in part) as follows:

6 December 1994

Minister of Justice and Attorney General,

Concerning your letter dated 2nd of December 1994, there are 6 separate accusations against me in regards to my statements in the American newspaper, “The Wall Street Journal” in the August 1994 edition.

The intention of your letter is to request a reply from myself to your accusations.

You also wanted me to write a letter of apology to be published in “The Wall Street Journal” in reference to the statements that I made in that newspaper.

Response to the 1st accusation (a):

— Please refer to the Letter of Petition (yellow cover, 69 pages) which I submitted to His Majesty on the 4th of November 1988. On page 3 of the Letter of Petition it bears the names of the Nobles and Ministers of the Crown who are alleged to have unlawfully obtained money from Government funds. The Nobles and Ministers in Parliament are appointed by His Majesty. As yet of today, no response has been received from His Majesty as to the wrongful and incompetent actions of his appointees, nor has any disciplinary actions been implemented against them particularly the Hon. Minister of Finance which the people requested to be impeached in their Letter of Petition.

— Please refer to the statement of confession made by the Hon. Veikune which appears in the “Kele’a” edition of January 1990.

— Please also refer to the video tape which I have enclosed with my letter. The video contains an interview of His Majesty in 1990 by the “60 Minutes” programme on New Zealand’s TV3. The interview contains His Majesty’s response about the passport money. The interviewer asked His Majesty as to why the Passport money (Trust Fund) has not been deposited in the Bank of Tonga rather than in San Francisco.

— His Majesty’s response was as follows — “Should the money be deposited in Tonga Parliament will use it for a pay rise. The interviewer went on to ask whether he does not trust his appointed Ministers. His Majesty’s answer was, “Yes ...”

I want to remind you Honourable Minister of Justice it was His Majesty’s direction to deposit the millions of dollars from the Passport money in America. Also take note that the managing of these funds were not organised since 1981 until 1991 when the Government Auditor was finally able to travel overseas and audit the money derived from the selling of Passports to foreigners in 1991. The question is, why wasn’t the Passport money in Tonga and overseas audited since 1982 and gazetted in accordance with the law, instead of it being done in 1991?

There is a lot of other information that I possess from different sources — from the Churches, Government Departments and private individuals that relate directly to the answering of accusation 1.

Response to the 2nd accusation (b):

(1) Please refer to the Government Gazette No. 3 of 15 February 1991. This gazette clearly shows how the Government is ruled.

You are well aware that the issuing and selling of the Passports was unlawful. Even if the King was not aware of this, it was already known by some of the Ministers. Please refer to the letter by Sinilau Kolokihakaufisi to the Accountant General of 8 January 1987. This letter clearly sets out that the Government had done something unlawful.

(2) It is important that you note that I repeatedly questioned this matter in Parliament and in my letters to the Hon. Minister of Police for him to clarify whether the right to be a Tongan subject and a Tongan Passport holder was being granted and sold. The Minister’s response was that there was nothing of the sort.

Please refer to the Minutes of Parliament of 26 October 1988 between 3.15 pm and 4 pm. It clearly shows my question and the answer given by the Minister of Police. Note that my question to the Minister of Police in Parliament was in October of 1988 but the sale and issuing of Tongan passports was done before that.

Please note the letter by Sinilau of 8 January 1987. The truth is that the Minister of Police lied.

I have no doubt whatsoever Hon. Minister of Justice, that the procedure by which Tongan Passports were sold from the beginning of 1982 up to 1991 was secretive and dictatorial. Not just that but also the creation of laws by His Majesty and Privy Council to legitimise this unlawful and secret activity, was dictatorial in nature.

(3) I would like to direct your attention to the yellow covered Petition, 68 pages that I put to His Majesty on the 4th November 1988 and I witnessed the petition reaching His Majesty. In this Petition it included a separate letter asking His Majesty to dismiss the Minister of Finance, James Cecil Cocker. Not only that but it was also detailed in this petition, amounts of money which 25 of the honourable Parliamentarians received unlawfully. This Letter of Petition was also submitted together with more than two thousand signatures of people who support this Letter.

Take note Hon. Minister the fact that there has been no response from the King or the Privy Council is a sign of no consideration for the people and dictatorship.

(4) In March 1991 another Letter of Petition was submitted to His Majesty. More than a thousand people marched to the Palace Office calling for the Minister of Police to be impeached because of the unlawful granting and selling of Tongan National Passports to 426 foreigners. As yet of today there has been no response from His Majesty. This is a sign of no consideration for the people and dictatorship.

(5) Hon. Minister please refer to the judgment of the Supreme Court of Tonga passed on 6 May 1988 concerning the unlawful dismissal of ‘Akilisi Pohiva by the Kingdom of Tonga or the Crown and the Prime Minister. On page 13 of the judgment it bears these words:

“The circumstances of Mr Pohiva’s dismissal encompass all three elements — it was oppressive, arbitrary and unconstitutional ...”

Please refer to the judgment of the Court attached herewith.

(6) Concerning the Orbital Satellite Slots. Take note Hon. Minister such assets are not His Majesty’s assets nor is it for a few to have absolute authority over. You may recall that we requested (People’s Representatives) in 1990 in Parliament to resubmit into Parliament all the agreements and Privy Council and Cabinet decisions concerning the Government’s approval of the request made by Tongasat to act as an agent of the Government regarding the leasing and advertising of Tonga’s Orbital Satellite Slots. We also requested to alter Tonga’s financial share from this project. The government subsequently approved this request. As yet, there has not been any response to our requests that were made in Parliament in 1990.

To me Hon. Minister such practices are dictatorial in nature. Even though the Privy Council has the authority to make such 390 decisions, consideration must be given to the people’s interests and that the People’s Representatives be allowed to participate in the negotiations of such project because it involves the people’s general assets.

Hon. Minister perhaps I have given sufficient response to the lst accusation against me even though there are still more illustrations for me to use to support the statement that I have made.

Lastly your Hon. Minister I want to clarify that our constitution is undoubtedly of a dictatorial nature. On that basis my statements were not directed at His Majesty’s individual capacity but it was His Majesty’s status under the constitution and the exercise of that authority that I am concerned with.

Response to the 3rd Accusation (c): ...

Response to the 4th Accusation (d):
The truth is we talked about the selling of passports. I told the reporter that one of the things that I was concerned with was that not all the money from the selling of passports were audited and not gazetted in the Government Gazette in accordance with the law. I stated in my statement that since the selling of passports commenced in 1982 up to 1990 the money from the sale of passports have not been audited or published in the Government Gazette. I did not inform the reporter that the money from the sales of passports has been audited and gazetted in 1991 after the march to his Majesty with the Letter of Petition.

The truth is the statement I made were based around the year of 1982 up to 1991 which was the year when section 29 of the Constitution was amended and the march to His Majesty was held. The complete financial statement about the passports money and its auditing and gazetting was done after the amendment to the Constitution and the march to His Majesty with the Letter of Petition. Please refer to my press release about the meeting with George Chen, Honorary Counsellor for Tonga in Hong Kong mid-last year which was distributed to the reporters here in Tonga.

Response to the 5th Accusation (e):
In the Parliament of 1990 I requested together with a few of the people’s representatives that the Tongasat’s financial activities should be audited and reported to Parliament. The basis of the request was the understanding that orbital slots are general assets of the people and the people are entitled to know the financial activities of Tongasat to ensure that the profits derived from the country’s assets are allocated orderly and accurately. This request was refused.

The importance of this request we made in Parliament was further boosted by the statement that appeared in the magazine, “Forbes” on 12 September 1994. If this statement regarding the estimation of Princess Pilolevu’s share is accurate, which is $25m than it is most appropriate for His Majesty and the Privy Council to reconsider our request to have the Company’s activities audited. The statement in “The Wall Street” was not intended to accuse His Majesty for misusing money obtained from the Satellite Project but it was intended to proclaim our concern that the Company had no audited statement about its financial activities to be submitted to Parliament.

Response to the 6th Accusation (f): ...

All in all, Hon. Minister I believe there is no ground for me to make an apology as you requested.

The statements I made were done independently based on factual occurrences.

I believe the response made by ‘Inoke Faletau for the government is sufficient. So we should continue with our work and attempt to read just the things that I have touched on, and I believe that the aforementioned shortcomings should receive special attention from the government, myself and my fellow representatives of the people of the land.

I believe Hon. Minister I shouldn’t be the centre of your concern. I believe you the Hon Ministers and Nobles, the servants of His Majesty are the ones that we should be most concerned with because you are the ones that are responsible for the administration and governing of the government and the land. The proper and accurate exercise of your duties will reflect the good image of His Majesty to the people of the land and the world as a whole. The security and enduring peacefulness of the country will then be guaranteed.

Lastly Hon. Minister I wish to draw your attention to one of the minor works that I have done in Parliament since 1982 until today based on my willingness to help and consideration for the security and general welfare of the Government and the land.

Please refer to my letter to the Accountant General on 1 November 1988 and was copied to:

1. His Majesty

2. Minister of Finance

3. Deputy Prime Minister

4. Speaker of the Parliament

5. Clerk of the Parliament

With respect,

.....................................

sgd. S. ‘Akilisi Pohiva

The accused published other material in that edition of Kele’a as well. He took the 480 opportunity of making a response to the terms of Papiloa Foliaki’s petition. It is now necessary to set out (the agreed translation of) that article by the accused.

RESPONSE TO THE PETITION BY PAPILOA AND KEITI FUSIMALOHI AND 426 OTHERS.

(The Chronicle refused to publish this response)

The petition imputes ‘Akilisi Pohiva saying: “‘Akilisi told the Wall Street Journal newspaper that the King is a dictator.”

RESPONSE: Yes, what the King wants, that shall be done, whether the Hon Ministers or public like it or not.

EXAMPLE:

i. Whoever the King wants to be Minister shall be Minister. He will hold that office for life whether or not the public like it or not, unless the King rules to the contrary.

ii. In 1988 a petition was lodged with the Palace Office calling for the dismissal of the Minister of Finance for unlawful disbursement of the government money to 25 members of the Parliament in 1986. As yet, no response has been received from the King concerning that petition. Refer to the 1986 Salary Table of the Fono. The Minister of Finance was allocated $5,812.91 even though he attended the fono for six days only.

iii. In 1991, more than 1000 people marched to the palace with a petition calling for the dismissal of the Minister of Police for unlawful issuance of Tongan passports to 426 foreigners. The said petition was refused by the King despite evidences proving that section 29 of the Constitution was breached by the Minister of Police. As to date no response has been received regarding that matter.

iv. Between 1982 and 1990 the Privy Council approved naturalization applications by some foreigners. This decision was dictatorial in nature as it contradicted section 29 of the Constitution.

v. In 1991 the King in Privy Council ordered to make an amendment act amending section 29 of the Constitution so as to legalise the unlawful approval of naturalisation applications of 426 foreigners. The petition called to revoke that order but to no avail. To date, no response has been received concerning that petition.

vi. In 1988 the King in Privy council approved the application for registration of the Company namely TONGASAT. Princess Pilolevu, a shareholder is the agent for the Government of Tonga to the satellites orbital slots. The people’s representatives in 1990 appealed to reconsider the shares so as to increase the shares of the government hence reducing the shares of Pilolevu and the company respectively. As yet, no response has been received to that effect. It is significant for the public to know that this resource is not for the benefit of a few. As claimed by the well known magazine, Forbes on 12 September it is estimated that the shares of the Princess will amount to US$25m.

vii. Big projects of the Government such as the establishment of the National Airline, Shipping corporation, securing of properties and overseas construction like the one in Pagopago, proposed projects at Sarawaki, sending troops to Bouganville etc., were all initiated at the Privy council. The people have no power to intervene in these.

viii. The concept of selling Tonga passports and granting the rights of nationals came from the King and the Privy Council. This was approved by the Ministers despite it was unconstitutional. The concept to deposit the proceeds from the sales of passports in America came from the King also.

Perhaps the above examples are enough even though there are more examples to be given. Papiloa and Keiti please note that almost every Orders in Council bear the following words: “ORDER BY HIS MAJESTY THE KING OF TONGA”...

With due respect to His Majesty and the public I hereby submit this response. I hope that this will clarify the contents of the article in the said newspaper. The King of Britain is not a DICTATOR since he is not involved in law making and the executive. One of the reason why the British dynasty switch to the position of Honorary King was to avoid criticisms from the public as to their involvement in executive position.

The only way for the King to evade criticisms is a total isolation from law making and the executive position to become an Honorary King like the King of Britain and other dynasties in Europe.

The only leader in the Universe that can not be subjected to criticisms is Jehovah, the King of Kings and Lord of Lords. His reign is righteous and flawless. His leadership is free of prejudice and unchallenged.

These two articles written by the accused are the cause of Count 2 which except for date and newspaper is identical to Count 1, but I shall set it out in full:

STATEMENT OF OFFENCE:
(Count 2)

DEFAMATION of His Majesty the King contrary to section 3 of the Defamation Act (Cap 33) as amended in Act 15 of 1993.

PARTICULARS OF OFFENCE:
(Count 2)

SAMUELA’AKILISI POHIVA on or about December 1994 in Nuku’alofa did defame His Majesty the King in that you stated and published in your newspaper the Kele’a Volume 9, Number 15 of October/November/December 1994 any one or more of the following defamatory statements:-

— The King is a dictator

— The King and his Nobles are guilty of financial legerdemain

— The King has ignored requests to account for the funds from the sale of Tonga Passports.

In addition the innuendo of these words was that 1. The King has concealed or has been a party to the concealing of funds derived from the activities of the sale of Tongan Passports; and/or 2. The King has done something improper with the funds derived from the sale of Tongan Passports.

— The King has ignored requests to account for the funds from the activities of Tongasat. In addition the innuendo of these words was that 1. The King exercises control over the activities of Tongasat; and/or 2. The King has concealed or has been a party to the concealing of funds derived from the activities of Tongasat; and/or 3. The King has done something improper with the funds derived from the activities of Tongasat.

Two witnesses gave evidence that they read what was in Kele’a, and were upset. One was Sione Masima, a farmer. He remembered in particular the response to the petition. He said he was disappointed and upset and shed a tear while reading the Kele’a article. He felt that the Royal family’s tradition of reliability would be lost. For him, to say the King is a dictator is incorrect. The King has never ordered him to bring any asset or goods; he is not an absolute ruler and had never ordered anything of the witness. In cross examination he said that the article claimed the King has absolute power in the country, but he did not believe it. The King had never given him an order or taken absolute power over his goods at home so that he became a slave. He said he was amazed at the statement that the King practised trickery.

The other similar witness was Salesi Kauvaka, also a farmer. He also was upset but he continues to trust the King. He knew nothing about Tongasat but felt nobody should interfere with it and about the passport money he said he does not know what the King wants but the article was interference with it.

The Offences Alleged: Preliminary Comments

Defamation of His Majesty the King is an offence created specifically in section 3 of the Defamation Act Cap 33 as amended in 1993, Act 15. The relevant sections are in part as follows:

2. (1) Defamation of character consists in speaking or in writing, printing or otherwise putting into visible form any matter damaging the reputation of another or exposing another to hatred, contempt or ridicule or causing him to be shunned.

(2) The repetition by any person of defamatory matter concerning another also constitutes defamation of character.

3. Every person who shall defame the character of the King or any member of the Royal Family shall on conviction thereof be liable to a fine not exceeding $400 and in default of payment to imprisonment for any term not exceeding 2 years.

9. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any matter stated—

(a)...

(b)...

(c)...

(d) in any communication made in pursuance of his official duty by any official of the Government to the Privy Council, the Cabinet or another Government official.

10. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such communication is made has an interest in hearing it unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive.

11. (1) Whether a communication was or not made under any of the circumstances mentioned in either section 9 or section 10 hereof shall be decided by the judge at the trial.

(2) If the judge rules that the communication was made under any of the circumstances enumerated in section 9 hereof he shall enter judgment for the defendant.

(3) If it is ruled by the judge that the communication was made under any of the circumstances mentioned in section 10 hereof then if there is no evidence that the defendant was actuated by anger, ill-will or other improper motive the judge shall direct a verdict for the defendant.

12. No criminal or civil proceedings shall be maintainable in respect of the publication contemporaneously and without malice in any periodical published at intervals not exceeding one month of-

(a) fair and accurate reports of-

(i) proceedings in the Legislative Assembly;

(ii) proceedings publicly heard before any Court having judicial authority;

(iii) proceedings of a public meeting:

(b) fair comments upon facts truly stated and in reference to matters of public interest.

Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter:

Provided also that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the periodical in which the matter complained of appeared a reasonable letter or statement by way of contradiction or explanation of such matter and has refused or neglected to insert the same.

The charges faced by the accused are no different from any other criminal charges. They are laid by the Crown, for the sake of good government and for the benefit of all the people. They are not personal to His Majesty.

In laying the charges, the Crown undertakes to prove them beyond reasonable doubt. All elements of each charge must be sufficiently made out so that when all are put together the proof of them leaves no reasonable doubt that the whole offence charged was committed. In the present case the “Particulars of Offence” are important, as they indicated in advance to the accused what it was that the Crown claimed it would prove had occurred, beyond reasonable doubt.

At no stage has the accused been required to say anything at this trial. He is entitled to submit that the Crown’s proof falls short. He is also entitled to raise positive defences and, in general, those defences are provided for him by the Defamation Act (above) at sections 9, 10 and 12. He has chosen to raise those defences. He is not required to prove any of those defences beyond reasonable doubt, a lesser standard of proof is sufficient to raise a reasonable doubt. The onus remains throughout on the Crown both to prove its charges and to rebut any defence raised by the accused. Section 108 of the Evidence Act Cap 15 applies.

In its “Particulars of Offence” the Crown has cast its net wide. It has alleged what it has called, both before and during the trial, an “extremely serious” offence but in particularising that offence it has alleged not one but “any one or more” of four identified statements. First it undertakes to prove that the statements were made and were made twice, ie, once in respect of each charge, but it makes in each count an alternative charge on the basis that all of the statements alleged may not be proved or, if proved, may not amount to the offence. So it alleges first that the offence was committed by not just a particular statement but any one of them, and then alleges that if that is not proved then it adds to the evidence a second, then a third, then a fourth statement in its bid to establish its charge (in each count) beyond reasonable doubt. All this casts a heavy burden on the Crown and on the accused. No issue was made of this by counsel for the accused so I say no more about it.

Finally as a preliminary comment, I hope to avoid adding unnecessarily to the already lengthy narrative. I hope that by setting out in full all the relevant material I have helped to make the outcome clear.

Decision of Count One

This count rests on the words published in the Wall Street Journal on 23 August 1994. They were written by a journalist, Michael J. Ybarra. The question is, in this publishing by the Wall Street Journal of words written by Ybarra did the accused defame the King?

The offence charged is publication within the Jurisdiction of words uttered whether outside the jurisdiction or not, and I see no need to refer to the authority which was relied on by the Crown for reaching out to what was said in Honolulu. The accused accepts the position advanced by the Crown that on this publication by the Wall Street Journal, which was read in Tonga, the accused may be found responsible at law in Tonga and therefore either guilty or not guilty. This seems to be correct by reason of Section 2 of the Defamation Act.

“Defamation” is clearly defined in Section 2 and the authorities make it clear that words which damage the reputation of the King and/or expose him to hatred are not only words which do so on their ordinary and natural meaning but also words which are capable of being understood in a defamatory sense. I accept Mr Waalkens’ submission on behalf of the Crown that the decision of what is conveyed by any particular words is to be made by an objective test, ie, by the meaning which an ordinary reasonable person would take from them, including an ordinary reasonable person with knowledge of particular facts that make the meaning defamatory to that person. I accept the statements of principle to which Mr Waalkens referred me in Gatley on Libel and Slander [9th Edition, 1998], and in Carter-Ruck on Libel and Slander [4th Edition]. What the accused intended to convey is immaterial.

I accept the Crown’s further submission about the ingredients of the offence and in my view it is necessary for the Crown to establish only:

(i) That words reasonably conveying the defamatory meaning or words like them were said by the accused;

(ii) That the accused intended to say those words, or words like them;

(iii) That those words or words like them were published; and

(iv) That the publication damaged the reputation of the King and/or exposed him to hatred, contempt or ridicule.

All of this must be established as a single whole beyond reasonable doubt before the special defences of the accused are considered and must remain beyond reasonable doubt after they have been considered.

In evidence the accused denied telling Ybarra “The King is a dictator”. Instead he says he told him “the King rules under a Constitution which is dictatorial”. He told the Court he was talking to the journalist about the Constitution. In respect of the Government’s actions over passport revenues etc and Tongasat revenues he told the Court that he did not to Ybarra accuse the king of financial legerdemain, but rather told him the whole history of the passport business from 1982 until 1991. He said he omitted the steps taken by the government (which to some degree had rectified his complaints) in and since 1991. What he told Ybarra, he said, was that His Majesty and his Ministers had failed to submit to the House a full audited report of the money received from the sales of passports even though he had tried several times in the House to get an account of those revenues, this all being for the period until 1991. The issue itself continued to exist for him at the time of the interview in 1994. He said he told Ybarra about Tongasat that His Majesty and his Ministers had completely failed to submit to Parliament any audited financial report of the money the Tongan Government had received from Tongasat.

Now, there is other evidence of what the accused told Ybarra. This is (1) what he said to Papiloa Foliaki and (2) the account written by the accused much closer to the time, which he published in December 1994 in Kele’a. In that article he said he was intending to clarify and explain what it was he had expressed to Ybarra. It is to those words that I have turned to decide the primary question whether the published account of Ybarra was what the accused had said.

I have no doubts that in 1994 the accused was thinking and saying “The King’s actions and inactions are dictatorial, he acts like a dictator, see what he has done/not done about the passports and about Tongasat”. His words to Mrs Foliaki and in Kele’a leave no room for any reasonable doubt. I am sure that he said those words or words like that to Ybarra. If he meant to discuss only the Constitutional position of the King within the Constitution that is irrelevant. The issue I have to decide is, what did he say to Ybarra? However, I cannot believe on the evidence presented to me that for all his fervour the accused told Ybarra that selling passports was “The King’s practice” as reported by Ybarra. Nor can I believe after hearing the accused give evidence that he told Ybarra that in 1991 the King “simply had the passport laws changed”; nor can I find after considering all the evidence that the accused said anything to Ybarra that properly could be paraphrased as “he accused the King and his Nobles of financial legerdemain”. Whatever the complaint to Ybarra, it was clearly detailed, but the words “financial legerdemain” are the journalist’s own summary of what he had understood. The complaint of the accused to Ybarra as I understand it from the evidence does not present to me as a complaint of sleight-of-hand, rather as a complaint of insufficient accountability.

Finally, it is well established to my mind that the accused did tell Ybarra that the King had ignored his demands for accounting about both the passports revenues and the Tongasat revenues, these statements after all were from the accused’s own experience and by public knowledge true.

There is no allegation by Ybarra in the article that the accused told him the King is breaching the constitution. There is no allegation by Ybarra in the article that the accused told him the King is in breach of any of his duties as King. There is no allegation by Ybarra in the article that the accused told him the King is a despotic dictator like Idi Amin. There is no allegation by Ybarra in the article that the accused made any such claims to him except his purported “The King is a dictator”. It is not shown to my satisfaction that the accused actually said that, but if he did then, in their context those words can only mean “The King is an authoritarian ruler who ignores my repeated request for accountability by himself and his Ministers”. If he said this, it appears to me to be the truth. Taking account of the evidence by the accused during the trial it appears to me not surprising that his attempts to obtain accountability in a system of government which does not provide for it are ignored.

There is a claim by the prosecution that the accused said to Ybarra “The King is a dictator”, and that this in its ordinary and natural meaning is the same as “The King is a malignant despot like Idi Amin or Adolf Hitler”. I am afraid I have to reject that. It is contrary to the evidence.

There is a claim by the prosecution and by the journalist Ybarra that the accused said “King Taufa’ahau IV and His nobles have committed financial legerdemain” or words to that effect. I do not believe after hearing the evidence that these words of Ybarra are accurate, having seen and heard the accused.

Having seen and heard the accused I do accept that the accused told Ybarra that the King had ignored his request that the King account for the funds from the sale of Tongan passports and I do accept that he told Ybarra that the King had ignored his request to account for the funds from the activities of the Tongasat, as claimed in Count 1. I find however that the innuendo from those words claimed in the indictment is unsupported by any evidence at all. That innuendo was not stated in the article nor is apparent to me as a reasonable deduction. The article is about the campaign by the accused for accountability in Government and absence of any reaction to that by His Majesty the King.

With the exception of “the King is a dictator” and one other alleged quotation, the journalist does not even claim to be quoting the accused. In its entirety the article is the journalist’s own account constructed from what he was told. The only evidence of what he was told is that of the accused during this trial. The journalist’s words in my view are not a sufficient basis for the criminal charge that the accused spoke defamatory words as alleged in Count 1. On that charge he must be acquitted.

Decision of Count Two

I turn now to Count 2. This is a charge that the accused repeated personally within the jurisdiction the same defamatory remarks that are charged in Count 1. The evidence in support of the charge is the published words of the accused himself, in the December 1994 edition of Kele’a.

First, I shall deal briefly with the special defences pleaded in respect of Count 2, each in turn. The first special defence pleaded is that these words were a fair comment on a matter of public importance. The matter is indeed one of public importance but, to be fair comment they must be based on facts that are themselves truly stated. This special defence was raised by the accused at the outset when he replied to the Minister in Kele’a, “The statements I made were ... based on factual occurrences”. However, this defence, pursuant to section 12(b) of the Defamation Act (above) is not available in respect of the Kele’a article itself as Kele’a is published at intervals exceeding one month.

The second special defence is one of qualified privilege pursuant to Section 10. That section is set out above. I have noted the submissions of Counsel. I do not believe that these words written by an activist for change can, objectively viewed, be described as a “communication made bona fide by [the accused] in discharge of a legal moral or social duty, or in reference to a matter in which he has an interest [with] the person to whom such communication [has been] made [having] an interest hearing it”. This defence would fail if it had to be relied on.

The third pleaded defence is justification, ie, that the words in their ordinary and natural meaning are true and their publication was for the public benefit. I am inclined to think that the offence charged is one of strict liability and that this civil law defence is omitted from the Defamation Act defences for that reason, but this was not an issue raised before me and I find it unnecessary to consider this defence in any event.

The accused relies also on section 7 of the Constitution which allows him freedom of speech but that freedom is expressly stated in the Constitution to be subject to the laws of defamation, official secrets and the laws for the protection of the King and the defence of the Constitutional rights to freedom of speech can not avail him on this occasion.

None of these defences in my opinion are available for Count 2.

The Crown alleges that the accused has said in Kele’a:

1. The King is a Dictator.

2. The King and His nobles are guilty of financial legerdemain.

3. The King has failed to account for the proceeds of the passport sales, which carried particular innuendoes.

4. The King has failed to account for the proceeds from Tongasat activities, which also carried particular innuendoes.

Is that true? In respect of the first alleged statement, nowhere in Kele’a did the accused say “The King is a Dictator” and nowhere did he imply that directly except in his response to the petition by Mrs Foliaki and others which I shall deal with shortly. In Kele’a, he says that his comments are based on facts and gives examples which he alleges show that the King’s actions and/or inactions are “Dictatorship” or “Dictatorial in nature”. He states that the constitution gives dictatorial powers. In response to this allegation in the Minister’s letter, which is allegation (b), he states:

“Lastly, Your Hon. Minister I want to clarify that our constitution is undoubtedly of a dictatorial nature. On that basis my statements were not directed at His Majesty’s individual capacity but it was His Majesty’s status under the constitution and the exercise of that authority that I am concerned with”.

I come now to the passage of Kele’a in which the accused directly implied “The King is a Dictator”. This is in his “response to the petition by Papiloa and Keiti Fusimalohi and four hundred and twenty six others”, the passage is as follows:

The petition imputes ‘Akilisi Pohiva saying “‘Akilisi told the Wall Street Journal newspaper that the King is a dictator.”

RESPONSE: Yes, what the king wants, that shall be done, whether the Hon. Ministers or public like it or not.”

There follows a series of examples and two brief comments, all of which are set out above, and must be read together with this quoted passage.

After considering the submissions and the evidence about these eight examples I must say that the ones I have been addressed on by counsel seem to be in general legally and/or factually accurate. I know nothing however of an alleged breach by the Minister of Police of section 29 of the constitution, example (iii), and I think it may be inaccurate to describe Princess Pilolevu as “the agent for the government of Tonga (for) the satellites”, example (vi). I have no details of example (vii). The first two sentences of example (viii) seem from the evidence to be one way to describe briefly what I was told occurred in the matter of the passports. The third sentence of that example however makes a statement directly about His Majesty the King: “The concept to deposit the proceeds from the sales of the passports in America came from the King also”. This is an allegation directly against the King in person and it was a statement of fact which the accused was unable at this trial to substantiate and did not wish to substantiate. However, the words “The King” are ambiguous in that paragraph, in that they could just as well be shorthand for “The King and the Privy Council”, which words he also used, and in that meaning the statement seems true.

In reading the whole of the Kele’a articles I cannot hold that the accused either said or implied that the king is a bad king, a despot or a dictator like Idi Amin.

I come now to the second statement alleged against the accused. It was said in the Minister’s letter, in allegation (a), that he had accused the King and his nobles of financial legerdemain. The words written by the accused in Kele’a in response to that allegation do not contain any claim by the accused that the King and his nobles were guilty of financial legerdemain or sleight-of-hand. What the accused said about the allegation is set out fully above in his “response to the first accusation (a)” and I need not repeat it here. That allegation is not even imputed so far as I am able to understand what the accused wrote.

I come now to the third statement alleged against the accused. In Kele’a he responded to the allegation in (d) in the Minister’s letter, that the words published in the Wall Street Journal clearly inferred that His Majesty had or may have misappropriated funds. His two paragraphs on that topic speak for themselves. One looks in vain for anything in those paragraphs that contains or generates that claimed inference. The relevance of the Press Release escapes me. It was not published in Kele’a. Two paragraphs headed “Press Release” were included in the agreed English translation but they convey little to me. They were not referred to in the evidence and I omitted them in what I set out above from Kele’a.

I come now to the fourth statement alleged against the accused. In Kele’a he responds to allegation (e) of the Minister’s letter that the words published in the Wall Street Journal inferred misappropriation by His Majesty in respect of Tongasat funds. Here again the answer is in two paragraphs. They are set out fully above. They speak for themselves. One looks in vain for that inference.

The charge arising from what the accused wrote in Kele’a is that in writing it he made four specific statements and in doing so he “Defamed the character of the King” (section 2 of the Defamation Act). From other words of section 2 it is clear that the criminal offence of defamation consists in statements “damaging the reputation” of another, or “exposing that other to hatred contempt or ridicule, or causing him to be shunned”.

It is not in doubt that one’s personal character and one’s personal reputation are inseparable from one’s role in society, be it butcher or baker, beggar or king. To say of a good baker that he bakes badly defames him even though it is only his conduct in performing his occupation that he is being attacked. It is so for a king. To say of a good king that he rules badly defames his character and damages his reputation. The questions raised in this trial are, did the accused say what is alleged and if so has he published “matter damaging the reputation of [The King] or exposed him to hatred, contempt or ridicule or caused him to be shunned”?

Apart from the Minister, three witnesses, ordinary citizens of the kingdom, gave evidence about that. Two of them gave evidence that they recognized the statements as insults to His Majesty but rejected them. One (Mrs Foliaki) gave evidence that her faith in His Majesty was shaken for, perhaps, she said, the accused may be right, he knows more about these things than I do. However she stated also that she believes the King is not a dictator. None of their evidence amounts to strong evidence that what was published was matter damaging the reputation of the king or matter which exposed him to hatred, contempt or ridicule, or caused him to be shunned. Those are the words which define defamation for present purposes.

What is said to have occurred in this case is characterised by the Crown (closing submissions paragraph 9.8) as “an imputation of corruption, dishonourable conduct (or motives) ...”. What is central throughout this case however is the Constitution. It creates an authoritarian form of government, governed by the Constitution.

Nowhere did the accused claim that His Majesty rules in breach of the constitution. He acknowledged that the actions and inactions which he outlined had occurred within the constitution. He sought more accountability to the people in His Majesty the King, His Ministers, and His nobles than the constitution presently allows. He described his own actions, taken in a vain attempt to achieve what is no less than amendment to the constitution. He described the actions of others, and inactions, including those of His Majesty, in ignoring and/or rejecting his claim for constitutional change. In all that he wrote I have looked in vain for words which, as a matter of fact, impute corruption, dishonourable conduct, or dishonourable motives to the King, and for words which damage the reputation of the King or expose him to hatred, contempt or ridicule, or cause him to be shunned. On count 2 the accused must be acquitted.

The Law: some Final Comments

Before closing, I am bound to refer to certain aspects of the case presented to me. The decisions which I have made are in the end decisions of facts. I have not had to consider the nature of the two charges, but in my view there was a danger of unfairness in way these charges were framed. Neither was cast as simple alternatives, both were cumulative and while the Crown sought to rely on any one of the alleged statements, had rebuttal been necessary the accused was required to rebut all four statements. As well, the statements alleged, except for the first phrase in count 1 and particularly those in count 2 about the Kele’a articles were not particular words of the accused at all but subjective derivations which were said to have the same meanings as the (unspecified) words of the accused. For criminal charges this uncertainty made both proof and defence difficult.

I have considered the law advanced by both parties but there was little specific argument about the law of criminal defamation and I say nothing about that except to suggest that the offence, once proved, may be one of strict liability and subject to no defences other than those provided in the Defamation Act which creates the offence.

I found useful the passages presented to me from Halsbury, 4th edition, volume 28 on Libel and Slander, particularly paragraphs 42-287. I had to bear in mind however that the case before me is a criminal trial, not a civil claim; not merely a criminal trial but a trial under the Tongan statute which not only provides for the offence of criminal defamation but defines it and provides the available defences. The single most helpful paragraph in Halsbury was paragraph 283 about indictments for the defamatory libel.

About the cases presented to me, they were all civil suits for defamation. As Gatley [above] commented at chapter 22, the nature and rationales of civil and criminal proceedings for defamation are distinct. That by itself detracted not from their interest and relevance, as far as they went. It needs to be noted however that they were all in the context of democratic government. I was engaged by them all but, in the present context they are of little help. The more recent cases particularly, ie, Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; 124 ALR 1, Stephens v West Australian Newspaper Ltd [1994] HCA 45; (1994) 182 CLR 211, and Lange v Atkinson [1997] 2 NZLR 22 are in the context of the performance of public officials in an elected democracy and public accountability to an electorate. Their strong foundation is the nourishment of democracy. The principles in those cases are of limited application in the present case.

Finally, I must refer briefly to the submission made that in writing what he did in Kele’a assuming it to be defamatory, the accused was in breach of his oath as a member of the Legislative Assembly, taken pursuant to section 83 of the constitution. In my view the accused in writing his views in a newspaper outside the term and context of any sitting Legislative Assembly was not necessarily acting within the scope of the activities contemplated by his oath to serve as a member of the Legislative Assembly. There is no substance in this submission.

Verdicts

For the reasons stated above in respect of Count 1, the accused is acquitted of Count 1. For the reasons stated above in respect of Count 2, the accused is acquitted of Count 2.