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Tonga Law Reports |
IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa
CV 124/2003
Lali Media anors
v
'Utoikamanu anor
Ward CJ 24-27 March 2003; 4 April 2003
Constitutional law – freedom of speech – ban of newspaper – appeal dismissed Practice and procedure – judicial review – review of order in council - unlawful
This was an application for judicial review of three orders all of which prohibited the importation of a newspaper, Taimi `o Tonga, into Tonga. The paper was published and printed in New Zealand by the first plaintiff, a limited liability company registered in New Zealand and with its registered office in Auckland. The Chief Executive Officer was the third plaintiff and he and his wife were the sole shareholders. He was Tongan born but has become a citizen of the United States. His wife was Tongan. The second plaintiff, also a Tongan, had worked for the Taimi since 1994 and was the Manager of the Tongan operation of the newspaper. There was a Tongan editor based in Tonga and the remaining staff in Tonga, six more full time and two part time employees, were all Tongan as were some of the staff in New Zealand. The second plaintiff managed the collection of news in Tonga and its transmission to New Zealand and also the distribution of the paper in Tonga. There was no challenge to the fact that virtually all the news content of the paper was gathered in Tonga by the Tongan staff. Each issue of the paper was printed in two editions to ensure the advertising content related principally to Tonga in one and to New Zealand in the other. There was also a substantial readership in Australia and the United States and some advertising from those countries. On 26 February 2003, the Chief Commissioner of Revenue gave notice by letter to Mr 'Akau'ola asserting that the Taimi 'o Tonga was a prohibited import under s 34 of the Customs and Excise Act. When the letter of 26 February was received, having been given neither opportunity to make submissions nor any reasons for the Chief Commissioner's decision, the paper's lawyer wrote immediately to the Chief Commissioner and pointed out both of these matters. A reply was received of the same date advising that the decision stood that the paper "is a prohibited import", and added the reasons. Neither in respect of the notice and declaration under ss 34 and 35, nor in respect of later decisions to be referred to, did the Chief Commissioner or the other decision makers concerned ever rely on any issue of the Taimi 'o Tonga which actually advocated violence, notwithstanding that a matter specifically alleged by the Appellants and put forward as a reason for the prohibition of the newspaper was that it was "advocating and inciting violence". After receiving the notice and declaration under ss 34 and 35, the Respondent company and the Respondent 'Akau'ola began, on 6 March 2003, proceedings (in which the Respondent Moala later joined) challenging the validity of the decisions involved on various grounds, including denial of natural justice and violation of the Constitution. The next day, 7 March, an Order-in-Council was published in an Extraordinary Gazette Supplement prohibiting the importation of any issue of the publication 'Taimi 'o Tonga'. The plaintiffs sought (a) declarations that the orders were unlawful and invalid and that the Taimi was not a prohibited import in the terms of the relevant sections, (b) orders of certiorari quashing each order, (c) declarations that the various provisions relied on by the defendants were inconsistent with the Constitution and (d) injunctions restraining the defendants from enforcing the orders. The grounds for the relief sought were similar in each case. The plaintiffs claimed the orders were made (i) in excess or abuse of the powers conferred by the various sections, (ii) that they were issued in breach of natural justice and (iii) that the provisions under which they were issued were inconsistent with the Constitution and therefore pro tanto void.
Held:
1. All acts of the Executive Government were subject to the scrutiny of the court in relation to the propriety 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 did not prevent the court from considering whether it was a legitimate act of the Government in the first place.
2. The court was satisfied on the evidence that the plaintiffs established locus individually and jointly.
3. Errors of law and procedure were susceptible to judicial review but (with many exceptions principally in relation to irrationality), errors of fact were not.
4. Privy Council made an order that clearly infringed and was intended to infringe the Taimi's right under clause 7. That decision was made to prevent future editions from being brought into the country the contents of which could not be known. The court considered such an order was in breach of clause 7, and was therefore subject to review and must be corrected.
5. In relation to the section 34 order the court declared that the section 34 decision and notice were unlawful and invalid and that as a consequence the court further declared that the Taimi 'o Tonga was not a prohibited import in terms of section 34. The court ordered certiorari against the first defendant to quash the section 34 order and declined to make the declaration that section 34 was inconsistent with the Constitution. The court declined to grant the injunction sought. The order was quashed and therefore, the authority would not continue to apply the order.
6. In relation to the Schedule II declaration the court declared that the decision and declaration were unlawful and invalid. As a consequence the Taimi `o Tonga was not a prohibited import in terms of section 35 of the Customs and Excise Act. The court ordered certiorari against the first defendant to quash the Schedule II declaration.
7. The court declined to make the declaration that section 35 and Schedule II part I paragraph 7 were inconsistent with the Constitution and declined to grant the injunction sought as unnecessary in view of the order of certiorari.
8. In relation to the Order in Council the court declared it was unlawful and invalid. As a consequence the court ordered that the Taimi `o Tonga was not a prohibited publication under section 3 of the Prohibited Publications Act and ordered certiorari against the second defendant to quash the Order in Council.
9. The court declared that section 3 of the Prohibited Publications Act was inconsistent with clause 7 of the Constitution to the extent that any Order in Council made under it failed to state the grounds upon which the Order in Council was considered to be in the public interest. The court declined to grant the injunction sought as unnecessary in view of the order of certiorari.
Cases considered:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Banda v Government of Malaya [1962] UKPC 2; [1962] AC 322
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
FAI Insurances Ltd v Winneke [ [1934] ArgusLawRp 109; 1982] 41 ALR 1
IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
Kingdom of Tonga v Pohiva [1993] Tonga LR 25
Minister of Home Affairs v Fisher [1979] AC 319
Northern Land Council, Ex parte [1932] ArgusLawRp 91; [1981] 38 ALR 439
Pohiva v Prime Minister and Kingdom of Tonga, (unreported), case number 7 of 1986
Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484
Ridge v Baldwin [1963] UKHL 2; [1964] AC 40
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149
Steiner and another v Attorney General for the Commonwealth of Australia [1983] FCA 338; [1983] 52 ALR 148
Touliki Trading v Kingdom of Tonga (No 2) [1996] Tonga LR 145
Tu'ipulotu v Kingdom of Tonga [1917] Tonga LR 258
Tu'itavake v Porter (unreported) case number 24 of 1989
Statutes considered:
Criminal Offences Act (Cap 18)
Customs and Excise Act (Cap 67)
Prohibited Publications Act (Cap 54)
Counsel for applicants/plaintiffs: Dr Harrison QC and Mr Tu'utafaiva Counsel for respondents/defendants: Solicitor General and Mr Kefu
Judgment
This is an application for judicial review of three orders all of which prohibited the importation of a newspaper, Taimi `o Tonga, into Tonga. The paper is published and printed in New Zealand by the first plaintiff, a limited liability company registered in New Zealand and with its registered office in Auckland. The Chief Executive Officer is the third plaintiff and he and his wife are the sole shareholders. He is Tongan born but has become a citizen of the United States. His wife is Tongan.
The second plaintiff, also a Tongan, has worked for the Taimi since 1994 and is at present the Manager of the Tongan operation of the newspaper. There is a Tongan editor based here and the remaining staff in Tonga, six more full time and two part time employees, are all Tongan as are some of the staff in New Zealand. The second plaintiff manages the collection of news here and its transmission to New Zealand and also the distribution of the paper in Tonga. There has been no challenge to the fact that virtually all the news content of the paper is gathered in Tonga by the Tongan staff. Each issue of the paper is printed in two editions to ensure the advertising content relates principally to Tonga in one and to New Zealand in the other. There is also a substantial readership in Australia and the United States and some advertising from those countries.
The paper started in 1989 as a Tongan based weekly newspaper with the third Plaintiff as the Managing Editor but, in 1995, the operation was moved to New Zealand. In 1997, it started to produce two issues each week as it does still.
There is no dispute that the paper has always paid any taxes and duties due for the Tonga business and it has held and still holds a business licence here. The defendants have questioned the licence for this year issued on 28 January 2003. Whilst there is no mention of the first plaintiff, it shows the licence fee was received from Mr Moala, that it was for the operation of a newspaper and that that paper is Taimi `o Tonga. I have no doubt that is a valid licence issued clearly for the operation of the paper in Tonga.
The Orders and Reasons
On the 26 February 2003 the first defendant in his capacity as Chief Commissioner of Revenue sent a letter by facsimile to the second Plaintiff at the Tongan address of the paper in the following terms:
"You are hereby given notice, that pursuant to section 34 of the Customs and Excise Act (Cap 67), the publication "Taimi `o Tonga" is as of the date of this letter a prohibited import into the Kingdom of Tonga." ("The section 34 notice")
The lawyer for the paper wrote the same day asking that the decision should be revoked temporarily or permanently. He gave the following reasons with the added caveat that there were also further issues they would like to raise but, because of the urgency of the matter (the plaintiffs were waiting to start printing), he considered the grounds cited were sufficient for a decision to revoke.
"l. Our clients were never given any opportunity to put forward their side of the case before you exercised your discretion under Section 34 of the Customs and Excise Act. As you may be aware, the section gives you a discretionary power which, we submit, should be exercised fairly and on reasonable grounds. Your decision to declare the Taimi of Tonga a prohibited import without giving our clients a fair opportunity to be heard must render your decision unfair.
2. There is no reason provided in your letter of 26 February 2003 for your decision to declare the Taimi `o Tonga a prohibited import. As such, we submit that there are no reasonable grounds for your decision in this matter. We note that our clients have paid custom duties and tax in respect of the Taimi 'o Tonga. Furthermore, there is a valid trading licence for the year 2003 to sell Taimi 'o Tonga Newspaper in Toriga. Taimi `o Tonga is widely circulated in New Zealand where it is published, Australia and the United States of America but those countries have not declared Taimi 'o Tonga a prohibited publication or prohibited import.
3. Your decision affects the paper's circulation in Tonga which is averaging 4,000 copies per edition and selling at $1.30. We therefore submit that the interests of about 4,000 readers of the Taimi 'o Tonga newspaper in Tonga are affected by your decision. Furthermore the ability of our clients to receive $1.30 per copy is affected. There are also business people who advertise their businesses in the Taimi `o Tonga and they are affected as well by your decision.
4. A revocation of your decision would not affect the interest of the Government of the Kingdom of Tonga or anyone in Tonga. We make this statement because we are not aware of the ground upon which you decide to declare the Taimi `o Tonga a prohibited import."
A second letter from the lawyer sent at 4.25pm produced a reply the same day from the first defendant:
"Your two letters dated 26 February 2003 and faxed to this office at 3.35 pm and 4.35 pm have been received.
The decision conveyed to you by notice prohibiting the importation of the "Taimi `o Tonga" pursuant to section 34 of the Customs and Excise Act stands. That decision shall stand until revoked. As from the date of your receipt of the notice, Taimi `o Tonga is a prohibited import.
The reasons for the decision made are according to Government policy and specifically that:
(i) It is a foreign paper owned and published by a foreigner.
(ii) It is a foreign concern with a political agenda.
(iii) The continuous standard of journalism is unacceptable.
The decision shall be enforced."
The next day, the first defendant took a further step with the same purpose. He published the following Gazette notice:
"DECLARATION
In exercise of the powers vested by section 35 and Schedule II Part I (7) of the Customs and Excise Act (Cap 67), the Chief Commissioner of Revenue hereby DECLARES that all Editions, Volumes or part thereof of the newspaper "Taimi `o Tonga" to be seditious or advocating violence, lawlessness or disorder." ("The Schedule II declaration")
A copy of the declaration was sent to the plaintiffs.
On 6 March 2003 the first and second plaintiffs (Moala was added as a plaintiff during the hearing) filed an action for judicial review, damages and injunctive relief. With the writ was an application for leave to apply for judicial review and an application for an order lifting the ban in the interim. The court gave Notice the same day to the defendants that the application would be heard inter partes on 10 March. However, on 7 March, the day following receipt of the application and writ and in order to counter the possibility that the court might lift the ban, as the first defendant told the court (it was, he agreed, an attempt to `move the goalposts' once they knew of the judicial review proceedings), the second defendant published the following Order in Council in an Extraordinary Gazette Supplement:
"ORDER-IN-COUNCIL
IN EXERCISE of the powers vested by. section 3 of the Prohibited Publications Act (Cap 54), His Majesty in Council hereby PROHIBITS the importation of any issue of the publication of "Taimi `o Tonga" or part thereof.
By Command
Clerk to Privy Council" ("The Order in Council")
The same day, 7 March 2003, the Attorney General wrote to the second plaintiff:
"I write to inform you that after due consideration on 7 March 2003, His Majesty in Council is of the opinion that the importation of the 'Taimi `o Tonga" into the Kingdom is contrary to public interest. Therefore such importation is prohibited forthwith, and an Order-in-Council to that effect is being gazetted.
The matters considered by His Majesty in Council included the following:
1. The newspaper is involved in anti-attitude and propaganda against the Monarchy and the Tongan Government. It is committed to the removal of the present Institution of Government.
2. The newspaper has caused considerable disaster, confusion and disaffection against the Monarchy and the Government.
3. Over a period of time the newspaper produced articles on changes to the system of Government in this country. It has caused disaffection amongst the people.
4. The newspaper published seditious materials.
5. The newspaper is advocating and inciting violence, lawlessness and disorder:
6. Complaints from individuals and groups, and a report from the Special Branch of the Ministry of Police, were received.
7. The standard of journalism is unacceptable.
8. The newspaper is foreign owned and is published overseas and imported into the Kingdom." Leave was given to the plaintiffs to seek judicial review of all three orders and this hearing has been limited to that part of the claim.
The Claim for Judicial Review
Relief is claimed separately in relation to each of the orders of 26 and 27 February and 7 March but it follows the same pattern in each case. The plaintiffs seek (a) declarations that the orders are unlawful and invalid and that the Taimi is not a prohibited import in the terms of the relevant sections, (b) orders of certiorari quashing each order, (c) declarations that the various provisions relied on by the defendants are inconsistent with the Constitution and (d) injunctions restraining the defendants from enforcing the orders.
The grounds for the relief sought is similar in each case. The plaintiffs claim the orders have been made (i) in excess or abuse of the powers conferred by the various sections, (ii) that they were issued in breach of natural justice and (iii) that the provisions under which they were issued are inconsistent with the Constitution and therefore pro tanto void.
Although there are some differences between the claims in relation to each order, it is convenient for this summary to deal with them compendiously. Any specific differences will become apparent later in the judgment.
The basic contentions in relation to the abuse or excess of authority are that the powers conferred by the various sections under which the orders were issued do not permit the prohibition of future unseen publications of the newspaper. In the case of the orders under the Customs and Excise Act, it is contended the decisions were ultra vires the aims of the Act. It is claimed that the grounds given in each case are unreasonable, without foundation and inconsistent and breach the right to protection under the law under clauses 4 and 14 of the Constitution and breach the plaintiffs' and the paper's right to freedom of expression and freedom of the press under clause 7. Further it is suggested that the reasons given for the making of the orders are no more than a cover to conceal the true reason for the ban which is to punish past publications of the paper and/or to prevent or deter future publication of views that are `unacceptable' to government policy. Finally it is claimed in relation to the section 34 order and the Schedule II declaration that the Chief Commissioner did not make the decision and exercise the power personally but simply acted under the direction of Cabinet or Privy Council.
The claim that the rules of natural justice were not followed is based on the allegation that the decisions were made without having first given the plaintiffs notice of the intended use of the various powers and without having afforded the plaintiffs any opportunity to make representations prior to the making of the decisions.
The final limb of the claim is that, if the provisions of the various sections do authorise the making of the orders in the manner in which they were made, then they are inconsistent with clauses 4, 7, 10 and 14 of the Constitution and the plaintiffs invoke clause 82 to declare the terms of those sections void.
The defendants challenge each of these claims. They assert that the orders are permissible and reasonable. They deny any improper motive or that the decisions leading to the section 34 order and the Schedule II declaration were made by anyone other than the first defendant.
They deny that notice was required or that there is any duty to accord natural justice.
They suggest no inconsistency with the various clauses of the Constitution and they assert that the plaintiffs cannot invoke clause 82.
In relation to the Order in Council, the defendants additionally challenge the right of the court to review a decision of Privy Council before it has been placed before a session of the Legislative Assembly or at all.
The Court's Right of Review
Judicial review is a largely supervisory procedure by which the courts can review decisions of public authorities. Although the scope of judicial review is changing, the general grounds upon which the intervention of the courts may be sought were classified by Lord Diplock into three major grounds:
"One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds." Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
The defendants do not challenge the fact that the section 34 order and the Schedule II declaration are susceptible to review by the courts but they dispute the court's power or right to review a decision of the Privy Council. I have already ruled, as a preliminary point of law in order to decide whether it should be included in this action, that there is such a right of review. I gave brief reasons at the time but expressly allowed counsel to put forward further argument if they wished at the hearing. Having considered the further submissions of counsel, I now give my reasons in a little more detail.
The defendants' challenge is on two limbs; first 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 and, second, that the provisions of section 9 of the Government Act require any such Order in Council to be laid before Parliament and, until that is done, any attempt by the courts to review it is an attempt to oust the jurisdiction of the Legislature.
On the first limb, the Solicitor General points out that there "is no right of review conferred expressly by any legislation of any decision of the Privy Council in Tonga. In that regard, it is akin to a decision of the Governor-General in the Australian context." I do not set out the three Australian cases she has cited in. support of that contention.
I do not accept that the position of the Governor-General in Australia is comparable to the position of the King in Council in our law for reasons I state below. In any event, as Beaumont J pointed out in the third of the cases cited; Steiner and another v Attorney General for the Commonwealth of Australia [1983] FCA 338; [1983] 52 ALR 148 at 155, the High Court of Australia has now held that the decisions of the Governor-General are no longer immune from challenge in the courts, at least where an attack is mounted on the ground of an improper exercise of a statutory power; Ex parte Northern Land Council [1932] ArgusLawRp 91; [1981] 38 ALR 439, or on the ground that a denial of natural justice has occurred; FAI Insurances Ltd v Winneke [1934] ArgusLawRp 109; [1982] 41 ALR 1.
The position under our law starts with the Constitution where clause 30 clearly establishes the concept of the separation of powers as the foundation for the structure of government:
"30. The Government of this Kingdom is divided into three Bodies
1st The King Privy Council and Cabinet (Ministry);
2nd This Legislative Assembly;
3rd The Judiciary."
The doctrine of the separation of powers was first enunciated by Montesquieu in his L'Esprit des Lois. He was concerned with the possibility of abuse of power that he felt would arise if too much is placed it the hands of any one man. In order to prevent any such abuse, he suggested:
"It is necessary from the nature of things that one power should be a check on another ... When the legislative and executive powers are united in the same person or body ... there can be no liberty ... Again, there is no liberty if the judicial 'power is not separated from the legislative and the executive ... There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers."
In practical terms, no system can have a total separation of powers but the principle has been the foundation of many constitutions around the world. The makers of the American Constitution adopted it as an essential safeguard of liberty of the subject and it is clear that, when King Tupou I introduced our Constitution, he intended to base the structure of government on it.
Having established the separation of powers as the basic feature of government, the Constitution continues in clause 31 to state:
"31. The form of Government for this Kingdom is a Constitutional Government under His Majesty..."
What is unusual about clause 30 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.
It is clear that Tupou I was intending to cede some of the total powers he had held previously but he still intended, within the new constitutional framework, to continue to take an active part in the government of his country. He referred to this in 1875 when opening the session of Parliament in which he was to introduce his new Constitution:
"You are aware that the form of Government in the days past was that my; rule was absolute, and that my wish was law; ... But that appears to me was a sign of darkness and now a new era has come to Tonga -- and era of light - and it is my wish to grant a constitution to Tonga and to carry on my duties in accordance with the Constitution and those that come after me; and the Constitution shall be as firm as a rock in Tonga for ever. When the Constitution has been passed it shall be a palladium of Freedom to all Tongans forever. It is quite clear now that they are free; and let this be the most valuable privilege of the country..."
The Constitution did then, and still does, preserve some of the personal prerogatives of the Monarch such as the right to summon citizens for service in the militia (cl 22) or to declare martial law (cl 46), the right to consent to royal marriages (cl 33) and the right to make treaties with Foreign States (cl 39), but others are stated to be subject to the executive such as the prerogative to decree the coinage 'with the advice of his Cabinet' (cl 45).
Whilst the person of the king is sacred, clause 41 makes it clear that it is he who `governs the country but his ministers are responsible'. It is he who appoints the members of the Privy Council `to assist him in the discharge of his important functions' (cl 50) and he appoints the ministers (cl 51) including the Prime Minister (sect 17 of the Government Act). These are steps which are directly concerned in the functioning of the executive. Many of the powers of the King as a member of Privy Council under Part III of the Constitution such as those relating to the terms of leases (cl 105), sanction for the form of deeds of lease (cl 106), the signing of leases (cl 110) and the consent to long leases (cl 114) are all executive acts quite different from his sole prerogative to grant land to nobles (cl 104).
Other provisions of the Laws reinforce the view that the King is part of the executive. In particular, section 2 of the Government Act provides:
"The King in Council shall be the highest executive authority in the Kingdom and the Prime Minister shall be responsible for carrying out the resolutions of Privy Council."
The Solicitor General contends that a decision of the Privy Council is in fact a decision of the King. If that were so, the court would be very hesitant to find that it has any power of review because the exercise of the King of his sole prerogative, as opposed to the exercise by the King of his role as a member of the executive, is not subject to scrutiny by the courts; Tu'ipulotu v Kingdom of Tonga [1917] Tonga LR 258, but the Solicitor General's view is not supported by the law. The wording of section 2 of the Government Act reinforces the clear inclusion, under clause 30, of the Privy Council in the executive. Other provisions of the same Act give all members of Privy Council the right to discuss and vote on every question submitted to the Council. There must be a quorum of three members beside the King. Those provisions clearly establish a body, which makes a collective decision. That Tupou I held that view also is, I suggest, seen from a later passage in the same speech in 1875:
"Ordinances have also been made for a Privy Council to assist me; to advise me in difficult matters of the Government; and if anything of a serious nature happens to this country, the said Privy Council will meet to finally decide on such matters." (My emphasis)
Although the decisions reached in Privy Council start with the properly respectful formula of The King in Council...' or `His Majesty in Council...', the decision is clearly one made by the Council and not by any one individual. The reference by the Solicitor General to The King-in-Council in the Privy Council' misstates the nature of the Privy Council. The King in Council is the Privy Council. Both King and Council are necessary for any Council decision except in the circumstances covered by section 11.
The difference may be illustrated by further comparison with the Constitution. As I have stated, some of the decisions given to the King personally under the Constitution are still subject to the consent of Privy Council. An example is clause 37:
"It shall be lawful for the King with the consent of the Privy Council to pardon any person who has been convicted... ."
Contrast that with the wording of clause 105:
"...but no lease shall be granted for any longer period than ninety-nine years without the consent of His Majesty in Council..."
That clearly shows the difference between a personal decision of the King and one of the King in Council. The decision to pardon is personal but it may not be implemented until and unless a vote in Privy Council (including, of course, the King) consents to it. The actual decision to pardon may not be subject to review of the courts (quare the position if made without consent or in disregard of a vote against such consent). However, the decision of the Privy Council whether to give its consent, whilst essentially involving His Majesty as part of the Council, is not a decision of his but of the Council and is subject, as an act of executive government, to judicial review. The decision whether to allow a lease of more than ninety-nine years is clearly a collective one of the Privy Council and similarly, therefore, subject to review by the courts.
It has not been part of the submissions made but I note that the wording of section 3 of the Prohibited Publications Act is unusual. The use of the words, "If His Majesty in Council is of the opinion ... he may prohibit ..." could suggest it is a personal decision. However, I do not consider that to be the case. If it were to be such a decision, the Act would have given it directly to the King or if the Privy Council was to be involved, given it to the King with the consent of Privy Council or some similar formula. What is clearly intended is that the decision is made in Privy Council. As such it is a decision of the Council as a body and that is why notification of the decision is by Order in Council and not, for example, by royal proclamation.
No further submissions were made on the second ground and I repeat, for the sake of completeness of this judgment, what I said in my earlier ruling.
The second point made by counsel for the defendants is that section 9 of the Government Act makes all orders of the executive reviewable only by the Legislative Assembly:
"Every Regulation, Rule or Order, whether passed by His Majesty in Council, Cabinet, Prime Minster or Minister shall have full force and remain effective until rescinded by the originating Authority or the Legislative Assembly. All such Regulations, Rules or Orders shall be placed before that session of the Legislative Assembly immediately succeeding the promulgation of the Regulation, Rule or Order for confirmation, amendment or rescission."
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 propriety 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.
I would only add that the, perhaps obvious, risk implicit in the Solicitor General's interpretation of section 9 is that Privy Council, Cabinet or even a minister acting alone could make a regulation, rule or order that was totally unlawful (either because he had no such power or because it exceeded a power he lawfully had) and which contravened the rights of every citizen. If her view is correct, it could remain in force without challenge in the court until the next session of the Legislative Assembly - possibly many months away.
At the hearing, the defendants objected that the case the plaintiffs presented in court went beyond the terms of the leave granted. Order 27 of the Supreme Court Rules requires an applicant to obtain the leave of the court before he makes an application for judicial review. That Order requires the court to be satisfied that the applicant has sufficient interest in the matter to which the application relates (O 27 r5). However, the equivalent rule in England (0.53 r3) sets further requirements which are also applied by the courts in Tonga, namely that leave will not be granted unless the applicant can show (i) an arguable case on the merits; (ii) that he has locus standi (the same requirement as our O 27 r5); and (iii) that he has not delayed unduly.
The plaintiffs applied for, and were granted, leave. The Solicitor General challenges the wide range of grounds for review advanced by the plaintiffs. She points out that, when I gave leave, I only referred to the failure to give the plaintiffs reasonable notice of the case the newspaper had to meet or an opportunity to answer it. I have not allowed her objection. The plaintiffs had only to satisfy me that there was an arguable case on the merits. I found an arguable case clearly demonstrated on those grounds in relation to both statutory provisions. Having made that decision, I gave leave. The overall grounds for review were stated in the statement of claim relating, at that stage, only to the section 34 order and the Schedule II declaration, and were before counsel. Having found an arguable case on the grounds referred to, I gave leave to pursue the application for judicial review and I did not consider it necessary to repeat all the grounds. I am satisfied that my grant of leave clearly applied to the whole of the stated grounds for judicial review in the first, third and fifth claims in respect of the section 34 order, the Schedule II declaration and the Order in Council respectively. I am equally sure that, at subsequent hearings in chambers, counsel for the plaintiffs made it abundantly clear that those grounds would all be pursued.
Finally, the Solicitor General at the very end of, and almost as a postscript to, her submissions, raised an objection to the locus standi of the first plaintiff. She did not cite any authority or attempt to relate it to the facts of the case. The possibility that it might be raised led to the request by counsel for the plaintiffs to add the third plaintiff ex abundanti cautela. The statement of defence filed had challenged the locus of the second plaintiff but not the first.
I do not intend to deal with it in any detail. The court is required to make a preliminary determination of the standing of the applicants at the time leave is sought. I did so and found sufficient interest in relation to both plaintiffs. The position at the stage of application for leave has been extensively explained, albeit with some degree of confusion, by the House of Lords in IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617.
The test at the leave stage is `a provisional finding of sufficient interest, subject to revisal later on' per Lord Fraser at 645. It is a `threshold question' where the `court must direct its mind to it and form a prima facie view about it on the material that is available at the first stage' per Lord Diplock at 642. At this stage the test is, as Lord Scarman suggested, at 653, necessary to `prevent abuse by busybodies, cranks and other mischief makers' but is not intended to be too restrictive.
However, the court must consider the question again at the hearing - the revisal referred to above. As Lord Diplock stated, the prima facie view `may alter on further consideration in the light of further evidence that may be before the court at the hearing of the application for judicial review itself.
The decision on locus is a discretionary one. The courts have striven to avoid too restrictive an approach and the effect of the IRC case was another step in that direction. It has been repeated in numerous cases since so the present view is that, if an applicant has an arguable case, he will normally be accorded locus.
As I have said, the objection was stated but not argued by the Solicitor General and I intend to say no more than that I am satisfied on the evidence I have heard that the plaintiffs have all established locus individually and jointly.
I shall return to the law but pass first to the evidence.
The Evidence
Both sides adduced evidence by affidavit and, in view of the short time available to file it, I allowed cross-examination of all deponents despite the fact that there was little dispute about the actual events surrounding the challenged decisions and that some deponents did little more than express opinions going to the merits of the impugned decisions. It is not the purpose of judicial review to consider the merits of the decision but, where there is a challenge on the grounds of unreasonableness it may be necessary to look at the factors behind the decision.
The temptation to trespass too far into the merits is often difficult to resist and I am grateful to Mr Kefu and Mr Harrison for the manner is which they confined their questioning to matters relevant to the review.
There was very little dispute about events prior to the prohibitions and I can state them shortly.
It is clear the Taimi is a paper that principally carries news about Tonga and Tongans and quite often criticises the Tongan Government. It is politically supportive of the aims of the Pro-democracy element in the country but it has also been critical of that movement. It has published articles and news items that could be described as investigative journalism and the resulting articles have more than once claimed to reveal impropriety by the Government or Government figures. It has often published interviews with leading figures in Tonga and many of those have been interviews with people known to hold views critical of the Government and the political structure of the country.
It is also clear from the evidence that some members of the Cabinet have been concerned for some time at the nature and perceived effect of the content of the paper. Prominent amongst those, as the first defendant agreed, is the Minister of Police.. Much the same disquiet was also felt towards the locally produced and owned Kele'a periodical and similar enquires were made about both publications.
As far back as January 1997 Cabinet approved recommendations that `a Government policy be formulated' that no Government Ministry or Office be allowed to release any news or notice to the Taimi and that no government department, agency, statutory body or any company where the Government is a shareholder be allowed to publish any advertisement with the paper.
The Minister of Police placed a written submission before Privy Council dated 12 March 2002 in which he recommended that the Taimi and another paper imported from abroad be declared prohibited publications. It is a strongly worded criticism of the paper suggesting the Taimi has caused disaster and confusion within the Tongan people. It has divided the Tongan Society, created dissatisfaction among the people, promoted resentment and hate against the King and Government and above all unfairly and falsely attacked HM the King, Royal Family and Government'.
He later refers to the fact that the 'efforts of the small Pro-democracy Movement (approx 50 in number) in Tonga is promoted in New Zealand and overseas by the owner and publisher of the Taimi'- an owner who, he later points out, is `a foreigner residing overseas'.
No decision was made in Privy Council and the matter was deferred to Cabinet for discussion. It was not discussed there either but a Media Sub-Committee chaired by the Minister of Police was established to consider the matter further and to instruct a consultant as to the best way to deal with the paper's reports.
On 24 May 2002, the Minister submitted a paper to the SubCommittee, following a request from it at its meeting the previous day, in which he deals with the powers under the Customs and Excise Act and recommends action under section 34 as being simpler `in that the Minister of Finance and Cabinet can deal with it and not Privy Council'.
It would appear nothing then happened until 11 November 2002 when the Minister received, as part of his normal duties, a report from the officer in charge of the Special Branch. The heading refers to two papers which are encouraging the people of the country to cause change in a forceful manner. The two papers are Taimi and Kele'a and the report advises the Minister that both `have been used by those who are thinking of changing the structure of the Tonga Government, by feeding people with news that is incomplete, to encourage the people to cause disturbances in this country'. It refers to an interview with Professor Helu published in Taimi which the report suggests - clearly incorrectly - advocates violence.
It concludes that, `even though the Constitution provides freedom to speak, write and publish their feelings and thoughts, there is a belief that these are the tools used by those trying to feed change to the people for the country to achieve their goal and achieve their objective to change the current structure of Government when. it comes to election in 2004'.
That is the report referred to in the Attorney General's letter of 7 March 2003.
I accept the Minister of Police was most concerned by this report. He told the court that, having considered the merits of the report, he placed it before the Media Sub-Committee on 27 January 2003 with a letter from Masao Paasi dated 24 January 2003, one from the Kotoa Movement dated 26 February 2003, some articles from Taimi and his report of 12 March 2002. He asked them to note, inter alia, that the Taimi is an overseas publication imported into Tonga, owned and published by Kalafi Moala who is a naturalised US citizen and thus no longer a Tonga Subject.
The Minister then submitted a report to Cabinet on 11 February 2003. It commenced:
"I respectfully submit for consideration of Honourable Cabinet Ministers the question whether the Taimi `o Tonga should be allowed to be imported into this country because of its anti-attitude and propaganda against the Monarchy, Tongan Government and commitment to the removal of the present institution.
In pursuance of these goals it has caused considerable disaster, confusion and disaffection against the Monarchy and the Government.
The Taimi `o Tonga is published overseas and is owned by a Naturalised American citizen who is resident in New Zealand."
It goes on to refer to letters from the Kotoa Movement and Masao Paasi and the Special. Branch report and refers to section 34 of the Customs and Excise Act. It concludes:
"I further attach a copy of my paper to Privy Council last year ... which was deferred for consideration by Cabinet and to date, nothing has happened to it.
RECOMMENDATION
That Government in the exercise of its power under section 34 CAP 67 of the Custom and Excise Act prohibit the importation of the Taimi `o Tonga into the Kingdom."
It appears Cabinet discussed the report and made what the Minister described as a `policy decision' on 19 February 2003. The decision was:
"Recommendation approved, as amended, ie:
That the Chief Commissioner of Revenue in the exercise of his power under Section 34 CAP 67 of the Custom and Excise Act is to consider prohibiting the importation of the Taimi `o Tonga into the Kingdom."
The section 34 and Schedule II decisions
That was the position when the matter came before the Minister of Finance in his capacity of Chief Commissioner of Revenue.
He stated in his affidavit that the decision of Cabinet, of which he was part, was `that the evidence of a political agenda to discredit and incite disaffection against His Majesty and the Government of Tonga was sufficient enough to necessitate action be taken'.
He continued that, having considered the same articles, which had been before Cabinet when he took part in the meeting on 19 February `it was and is my opinion that the articles excite disaffection against His Majesty the King of Tonga and against the Government of Tonga and incites hostility between different classes of the residents of the Kingdom and incites, encourages disorder, resistance to the law and lawlessness in the Kingdom.'
His evidence in court provided more detail. He told the court that, according to Government policy, Cabinet at it meeting on 19 February 2003 decided the contents and political agenda of. Taimi were unacceptable and it was not in the public interest to continue the importation. That was based on the material from the Taimi that had. been before the Cabinet. It was put to him that he was simply acting as the servant of Cabinet and he replied, "It was referred to me as the Chief Commissioner of Revenue. I had taken part in [the Cabinet] decision and I was just implementing the Cabinet decision when I, as it were, wore the other hat."
He was asked, "If that was the decision, i.e. that it was unacceptable, how did you come to give the reasons set out in your letter [of 26 February]?" He answered, "My understanding is that this is part of the reasons why it was considered unacceptable because it was a foreign owned organisation pursuing a political agenda domestically."
He agreed that, if it was imported into the Kingdom but was not foreign owned, it would have been different and explained that the foreign ownership was critical to the decision.
He also told the court of the other matters that he had known or understood at the time. His knowledge that the owner was a US citizen was based on the submission by the Minister of Police. He was aware that the paper, apart from the advertisements, was compiled in Tonga by Tongan Staff although he did not know the operations in New Zealand were carried out by ethnic Tongans. He said he knew Moala was Tongan born and had been a Tongan citizen and that he owned the paper but he did not know Moala's wife had an interest. He was unaware of any previous use of the power under section 34 solely on the basis of citizenship.
It was suggested to him that it was unreasonable to classify it as foreign and he replied that Cabinet took the view that, because the owner is a US citizen, it was a foreign paper. He told the court that he considered it reasonable to ban an existing business because of the political agenda of the newspaper.
The following day the first defendant made the Schedule II declaration. It was made, as he explains in his affidavit, on the same grounds as he had used to decide to make the section 34 order, namely the reasons quoted in the passage above stating what `was and is' his opinion.
The same day the Government issued a press release which he says reflects his stand taken in making the declaration. It is noteworthy that the press release sets out the reasons he gave in his letter of 26 February 2003 as the main reasons for his decision. It includes the statement that:
"The Taimi `o Tonga, whilst a foreign newspaper, has ruthlessly campaigned for the overthrow of Tonga's Constitutional Government Structure. With strong cultural insensitivity, it has incited disaffection among the people of Tonga as well as exciting disaffection between the people of Tonga.
No foreign- owned publication with such an agenda, has a right of entry into an Sovereign State."
It also refers to a letter from the President of the Tonga Media Association that the Taimi has never joined the Association nor accepted its Code of Ethics which all Tonga's other weekly, newspapers and radio and television "have accepted and are accountable to their common Code of Ethics"
It later asserts:
"Among the basic rights of any public from journalists are:-
(a) the right to be given a voice in publications about themselves;
(b) the right to be given an opportunity by the media for corrections or comments on publications already, made about themselves;
(c) the right to be given correct, unbiased and balanced information.
The fundamental human rights of the people of Tonga have been violated by the Taimi `o Tonga over so many years..." and it then lists examples of the suggested one sided tenor of the Taimi's reporting.
Those comments reflected accurately the first defendant's views when he made the decision to publish the Schedule II declaration. They were, of course, made by the Information Unit of the Prime Minister's Office and so the actual wording was not that of the first defendant. However, it was clearly established on the evidence before the court that the letter from the President of the Media Association was written on 26 February 2003 at the request of the Secretary to Cabinet and, although the evidence satisfies me it was carefully worded to suggest the Code of Ethics had been in existence for some time during which the Taimi had refused to accept it, the Code was, in fact, only adopted at a meeting of some members of the Association earlier on the same day the letter was written - the day of the section 34 order.
The retired General Manager of the Government owned Radio and Television Tonga gave unchallenged evidence that, during the time he worked for the government newspaper, any expression of independent editorial opinion would have `been more than [his] job was worth'. That situation contrasts sharply with the Government's attitude to the Taimi and the President of the Tonga Media Association advised the court that such control was not acceptable in terms of its Code of Ethics.
In his evidence to the court, the first defendant explained that the decision to make the Schedule II declaration was his alone and was taken because he felt it was necessary to emphasise his position on section 34. He explained, "in my view it was inconsistent to ban only under section 34. You should utilise all powers under the Customs and Excise Act which is what Cabinet wanted."
In making his decision he considered that the political agenda of the paper was seditious and he took the trouble to look at the definition of sedition in the Criminal Offences Act to ensure it was consistent with the declaration.
Sections 34 and 35 of the Customs and Excise Act provide:
"34. The Chief Commissioner of Revenue may from time to time, by notice, prohibit the importation ... of any goods, and any such notice may prohibit importation until the revocation thereof, or during such period as may be specified therein, and may either absolutely prohibit importation ..., or may prohibit importation ... except on compliance with any conditions which may be specified in the order, or may prohibit importation from ... any particular place named in the order.'
35.(1) The goods, the particulars of which are set out in Part I of Schedule II, are prohibited ... to be imported ... save as thereby excepted.
(2) The King in Council may, from time to time, by order, amend Part I of Schedule II."
Part I of the Schedule lists prohibited imports. The seventh paragraph reads:
"7. All books and any written or printed matter and sound or visual recordings which the Chief Commissioner shall declare to be seditious or which advocate violence, lawlessness or disorder."
I do not accept that it is appropriate at this stage to consider whether the decision that the articles were, in fact, seditious or did, in fact, advocate or violence, lawlessness or disorder was correct. It is true that, when the witnesses for the defence were asked to point out which of the Taimi articles specifically considered by Cabinet and the Chief Commissioner at the time they made their decisions had led the witness to "conclude the paper was advocating violence, they mostly gave evidence of their assumptions of what the articles were intending rather than being able to identify any specific statements. However, they are matters going to the merits of the decision and should not be part of the court's decision in review proceedings.
Errors of law and procedure are susceptible to judicial review but (with many exceptions principally in relation to irrationality), errors of fact are not. In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 it was stated:
"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - eg bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense ... Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." (per Lord Brightman at 518)
What the court can consider is whether the use of the Chief Commissioner's powers under the Act were unlawful either because they exceeded the powers or were a misuse of the powers. Whether the use of those powers was in contravention of the rules of natural justice or were unconstitutional might also bear on the legality of the use of such a power but I shall deal with those matters separately later in this judgment.
It is clear that the power given to the Chief Commissioner by section 34 is not limited by any of the words of the section. It appears to give him an unfettered discretion to prohibit 'importation of any goods. However, any discretionary power given by statute must be exercised within certain specific parameters as a safeguard for any person affected by the exercise of the discretion. Failure to do so may render the decision liable to correction on review on the grounds of illegality. As Lord Diplock pointed out in the Civil Service Union case, The decision maker must understand correctly the law that regulates his decision-making and must give effect to it'. When considering suggested illegality the court must consider whether the exercise of the discretion was ultra vires, i.e. in the present case, that the Chief Commissioner acted outside his powers under the Act, or alternatively, whether it was illegal because he included a consideration of irrelevant matters.
As I have stated, the power under section 34 is not hedged by any stated restrictions but it must still be used for the purposes of the Act. The long title of the Act describes it as `An Act Relating to the Collecting of the Revenue and the Management of Customs and Excise'. Mr Harrison, correctly, points out that, if the Chief Commissioner deliberately uses his power, as is alleged in the claim, as a back door method of press censorship, he has clearly not used it for a purpose under the Act. I am not prepared to find the evidence at this stage establishes that was the intention of the first defendant. His answers were, I consider, given honestly. He gave his reasons for the exercise of the power under section 34 but he never agreed that he was motivated by an intention indirectly to censor the paper. shall, however, return to the effect of his stated reasons later.
The reasons he gave for his decision may also be considered in terms of relevancy to his decision. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229, Lord Greene MR set out the requirement of relevancy in exercising a discretion under a statutory power:
"It is true that discretion must be exercised reasonably. Now what does that mean? ... A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said ... to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person would dream that it lay within the power."
The Chief Commissioner was bound, when making the decision to prohibit the newspaper under section 34, to take all relevant factors into account and to exclude from his consideration all irrelevant considerations. I am satisfied that the reasons he gave for the section 34 order in his letter of 26 February 2003 were irrelevant to a decision relating to the management of Customs and Excise and the order was thus ultra vires.
Some of the further factors he described in his evidence may have been relevant but the requirements of relevancy are that when he makes a decision, he must also exclude all irrelevant matters. It makes good sense; if an authority, in making a decision, includes in his decision matters which should be excluded, the decision can never be considered properly made because the extent of the effect of that irrelevant matter can never be assessed.
There is a further ground on which that decision can be challenged. Where an act gives the power to a named authority, it must be made by that authority unless there is statutory provision for specific delegation of the power. I am satisfied that the evidence of the first defendant made it perfectly clear that the decision to make an order under section 34 was made by Cabinet in a meeting at which he was present. It is not sufficient that the Cabinet decision as recorded required the Chief Commissioner to consider using his powers under the section when the decision had already been made. His evidence was that it was the intention of Cabinet and he was simply implementing it.
That evidence is supported by a paper submitted to Privy Council on 7 March 2003 by the Attorney General in which, under the heading `Action so far', he writes:
"9. On 19.02.03 Cabinet was of the view that the matter is serious and warranted Government action and referred it to the Minister of Finance to exercise his powers as Chief Commissioner of Revenue under the Customs and Excise Act."
The passages I have emphasised contrast with the wording of the Cabinet decision that the Chief Commissioner in the exercise of his power... is to consider prohibiting...'
He told the court that he made the Schedule II declaration simply to bolster up the section 34 order and made it on the same considerations. Those considerations included matter that was irrelevant to determination of whether the paper was seditious or advocated violence, lawlessness or disorder. The foreign ownership and the continuous standard of journalism, for example, are clearly irrelevant to such a decision. Such irrelevant considerations render the declaration unlawful in the same way as they do the section 34 order. Similarly, it is clearly a further step in the implementation of what he accepted Cabinet had decided should be done.
A further objection by the plaintiffs is that the power to declare a paper seditious and therefore include it in the list of prohibited imports cannot be made before the contents are known. In general terms, I accept that assertion. How can the Chief Commissioner know whether future editions of the paper will be seditious? However, the point was not sufficiently argued for me to feel I can make a ruling on that point in this case and it does not affect my final decision that the orders are illegal.
The Order in Council Decision
Much of what has already been said equally applies to the Privy Council decision.
The order was made under section 3 of the Prohibited Publications Act (Cap 54):
"3(1) 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.
(2) In the case of a publication to which subsection (1) applies and which is issued periodically, or in parts or numbers at intervals, whether regular or irregular, His Majesty in Council may prohibit the importation of any part or future issue thereof.
(3) Prohibition shall be notified by Order in Council."
Unlike the Customs and Excise Act, this Act specifically allows the ban of future unseen issues and the Order in Council sought to do that. It has been pointed out by counsel for the plaintiffs that the terms of the Order in Council do not in fact state that. However, I accept that, as it is a continuing order, its effect is to ban the importation of any future issues as long as the Order in Council remains in force.
Section 3 requires the decision to be made only where the importation is contrary to the public interest. Any consideration of prohibiting the importation of the paper under this section will hinge on that test. It clearly requires different considerations to those suggested as being relevant under the Customs and Excise Act.
It would have been helpful if the court had been able to read minutes of any discussions that went on in Privy Council and, for that matter, in Cabinet. The Crown allowed discovery and inspection but it appears no minutes are kept of the meetings of either body - despite, one might add in relation to Cabinet, the terms of section 16 of the Government Act.
However, the court has evidence of the papers which were placed before the Privy Council on 7 March 2003. They accompanied a submission by the Attorney General (addressed, it would appear in error, to `Honourable Cabinet Ministers) setting out a summary of the matters raised in Cabinet by the Minister of Police in his submission of 12 February 2003 and a summary of the action so far. There were also a copy of the submission to Privy Council by the Minister of Police of 12 March 2002 and a copy of a memorandum from the Secretary to Cabinet addressed to the Deputy Prime Minister, the Minister of Finance, the Attorney General, the Solicitor General and the Private Secretary to the King:
"With reference to Taimi `o Tonga.
I have the honour to inform you that His Majesty's Cabinet Decision of 5th March, 2003 was as follows:-
That an Order-in-Council under the Prohibited Publications Act be recommended to Privy Council."
It is clear from those documents that Cabinet had decided there should be such a prohibition. It is perfectly reasonable for them to consider the matter and equally to pass their views to Privy Council. But the decision under section 3 must be that of the Council and the issue they had to resolve as a body was whether the importation of the Taimi was contrary to the public interest.
The agenda of that Privy Council meeting included, under item 47, "That an Order-in -Council under the Prohibited Publications Act be approved and Gazetted."
There could be many aspects of the matter, which one might expect would be considered in such a decision. The paper was widely read in the Kingdom and the rights of the members of the public who were readers would be one such- consideration. The provisions of the Constitution in terms of freedom of speech and of the press would be another. Possible consequences of continued importation on the Government and the people generally would be another. Whichever of these was to be considered, the decision of whether it was contrary to the public interest to continue importing the paper had to be made by Privy Council and had to be made on a consideration of all relevant matters.
The first defendant was present as a member of Privy Council and told the court what happened at the meeting. He said the written submission of the Attorney General was put before the Privy Council and "it was acted on without discussion".
He was asked whether Privy Council had considered whether the ban was in the public interest and replied that it had been discussed in Cabinet the previous Wednesday. It was put to him that it was a Cabinet decision that it should be banned. and it was simply followed by the Privy Council with no discussion and he affirmed that was the case. He then went on to describe how Cabinet had decided to do this to make sure the ban would remain if the court ruled the earlier prohibitions were invalid as has been mentioned earlier in this judgment.
With the greatest respect to Privy Council, I do not consider that was an appropriate manner in which such an important statutory power should be exercised.
The written submission of the Attorney General set out the matters Cabinet felt made it so serious as to warrant Government action and the court assumes they had been read by the Privy Councillors but there is no mention of the requirement of section 3 to consider the public interest; although it is mentioned in the year-old submission of the Minister of Police which also included references to actions by both the papers which had been the subject of that earlier report and which were at that time suggested as being seditious.
In the letter from the Attorney General to the second plaintiff on the same day, the reasons considered by the Privy Council when ordering the prohibition were set out. It is unfortunate that such an important letter explaining the action for the first time to a person directly affected by the ban did not accurately reflect the matters which were considered. It certainly includes the matters that were in the papers before the Privy Council inasmuch as they were in the written submission of the Attorney General but reason number 7, that the standard of journalism was unacceptable, had not been mentioned in any of the papers. The letter also states that it had been decided that the importation was contrary to public interest. That follows the wording of the section but there is nothing in the evidence which supports the statement that it was part of the Privy Council decision
The evidence demonstrates that the decision by Privy Council was not based on a proper consideration of the matters relevant to the decision about the public interest and further that the failure to discuss it and simply to approve the decision of Cabinet was not a proper exercise of the Council's discretionary power under the Act.
The requirements of natural justice in relation to the decisions
A failure to observe the `rules' of natural justice have long been considered a proper ground for judicial review. They fall within the third of Lord Diplock's heads namely the rather wider ground of procedural impropriety. Even when a decision is reasonable in the terms of the Wednesbury case, it may be vitiated by a failure to observe natural justice.
What those rules require was explained by Lord Denning MR in Banda v Government of Malaya [1962] UKPC 2; [1962] AC 322 where the Court of Appeal had rejected the appellant's case on the ground that there had been no real likelihood of bias as the appellant had contended. At 237 the Master of the Rolls said:
"In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. 'T'hose two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in two maxims: Nemo judex in cuasa sua [no one can be a judge in his own cause]: and Audi alteram partem [no one shall. be condemned unheard]. They have recently been put in the two words, Impartiality and. Fairness. But they are separate concepts and are governed by separate considerations. ... If the right to be heard is to be a real right, which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence had been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them."
Failure to observe the right to know the charges against the person affected and the right to be given a fair opportunity to answer them was the basis of the decision in the well known case of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 in which it was pointed out that the overall test was what a reasonable man would consider fair in the circumstances of the particular case (per Lord Reid at 113).
The evidence of the manner in which these decisions were made by the Chief Commissioner and the Privy Council clearly shows a failure to observe either of the basic rules. No reasonable man would consider that an arbitrary order prohibiting the import of a paper that had been distributed in the Kingdom for many years without notice of the reasons or opportunity to answer was a reasonable exercise of the powers under the Acts used. There simply was no attempt to give the paper any hearing, let alone a fair one.
It is true that, when the Chief Commissioner decided to make the Schedule II declaration, l he had seen the comments in the letter the Tairi's lawyer wrote to request revocation of the section 34 order. That does not save the Schedule II declaration for two reasons; first, because he told the court that, when he made it, he simply applied the same considerations as he used for the first decision and second, because the plaintiffs' comments were made before the reasons for the ban had been given to the Taimi and were made in ignorance of them. When the matter was put to Privy Council, the reasons given in the lawyer's letter were not mentioned at all.
Fairness under the rules of natural justice may also be compromised where the decision affects the person against whom the order was made by depriving him of `some benefit or advantage he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment'; Civil Service Unions case at 408.
The requirement that a decision making body should bear in mind the legitimate expectations of the person affected by the decision was stated earlier by Lord Denning in Schmidt v Secretary of State for Home Affairs [ 1969) 2 Ch 149 at 170:
"The speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision on opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what the has to say. Thus in re HK (An Infant), a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. Lord Parker held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant they should give the immigrant an opportunity of satisfying them that he was under 16."
In the present case, the Taimi had been granted a licence to operate for the year -2003. That licence was in fact issued only a few weeks before the first order. Such licences had been issued in the previous years and the paper's proprietors had every reason to expect it would be able to continue to operate for the period of the licence. Certainly it would be reasonable to assume that, if it was to be prohibited, the intention and the reasons would be communicated to the plaintiffs before the prohibitions were imposed and that they would be given an opportunity to comment. One such comment, in view of the years the paper had been distributed in Tonga, would no doubt have referred to the fact that some of the matters that gave rise to concern were alleged to have occurred long before the licence had been renewed. In the Civil Service Unions case, Lord Fraser pointed out at 401:
"Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue."
I am satisfied that the plaintiffs had a right to be given a fair hearing and they were not in relation to any of the orders made.
The Constitutional position
I have read the extensive and helpful submissions of Mr Harrison for the plaintiffs on the constitutional issues. I do not set them out. I consider it is important to give judgment in this case as soon as reasonably possible and for that reason have not dealt with every aspect of those submissions or those of the Solicitor General and I intend no discourtesy by that omission.
The plaintiffs submit that the decisions taken by the Chief Commissioner and Privy Council in this case were in breach of the rights enshrined in clauses 4 and 7 of the Constitution. If they are, they contend that they must be subject to judicial review on the grounds of illegality.
Clauses 4 and 7 provide:
"4. There shall be but one law in Tonga for chiefs and commoners for non-Tongans and Tongans. No laws shall be enacted for one class and not for another class but the law shall be the same for all the people of this land.
7. 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 special position of the Constitution in our law is stated in clause 82:
"This Constitution is the supreme law of the Kingdom and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void."
The fundamental principle to be applied when interpreting any constitution and, in particular, provisions relating to the personal freedoms is that it should be given a generous interpretation. The classic statement by the (English) Privy Council in Minister of Home Affairs v Fisher [1979] AC 319 has been adopted as accurately expressing the position in Tonga; e.g. Tu'itavake v Porter (unreported) case number 24 of 1989 and Kingdom of Tonga v Pohiva [1993] Tonga LR 25. The principle has been re-stated more recently by the Court of Appeal in Touliki Trading v Kingdom of Tonga (No 2) [1996] Tonga LR 145.
In the context of clauses 4 and 7, this means that they should be read to have a wide and generous meaning in relation to the freedoms they enshrine. They should not be limited or restricted in their effect by what was referred to in Fisher's case as the `austerity of tabulated legalism'.
I deal first with clause 7. It is written in strong terms. It makes it clear that `no law shall be enacted to restrict' the liberty of all people to speak write and print their opinions. It provides that there shall be freedom of speech and, specifically, of the press `for ever'. Even without the need to apply the rules of liberal interpretation, it could hardly be wider or clearer. It not only establishes the right but it is implicit that there is a corresponding duty in others to allow it.
"Clause 7 establishes a constitutional right. Every person has the right of free speech. By necessary implication, it also imposes a duty - a duty on every person to permit the exercise of that right. The duty is owed to all persons." Pohiva v Prime Minister and Kingdom of Tonga, (unreported), case number 7 of 1986, per Martin CJ.
The question for the court is whether the steps taken by the Government in prohibiting the importation of the Taimi were a breach of the freedoms under clause 7. The plaintiffs' case is that, whatever the reasons claimed for the prohibitions, the true reason was to stop the paper being able to write its opinions as part of a free press. The evidence called by the defence referred to the matters which were causing concern to Cabinet. Whilst I have already declined to consider whether they have the meaning suggested by some witnesses, it is necessary to consider whether the content of the various documents indicates the true reason behind the decision to prohibit the paper in Tonga.
The letter from Masao Paasi is a clear complaint that the paper has gone too far in its comments and asks the Minster of Police to prosecute or stop this type of paper. He refers to how, when he was a member of the Legislative Assembly such words spoken against the King and his family were taken to court. His complaint is that nothing is being done any more to stop such excesses. He is correct to suggest that there can be criminal sanctions against a paper, which `goes too far'.
The letter from the Kotoa movement also refers to the paper having gone too far and having `even gone as far as bringing down the sanctity of the King and his .family'. The writers specifically suggest the paper should be stopped `from circulation, sales or importation into this country'.
A number of examples of articles from the Taimi were considered by Cabinet and they are listed in the documents before the court. I do not go into them in detail but the evidence was that they were the only ones considered. In an angry retort to counsel for the plaintiffs, the Minister of Police referred to articles about `poofters and sodomists' but there is no reference to such things in any of the articles which were considered by Cabinet. The defendants' case was that the paper, as evidenced by the articles considered by Cabinet, advocated the violent overthrow of the system of Government and the Monarchy. When questioned about that, many of the witnesses were unable to support the suggestion of violence but it is not for the court to decide that issue in review proceedings. There is some ground for that view and it is one for the decision makers. There is sufficient to say that such a view was not unreasonable in the Wednesbury sense.
However, when considering the suggestion that this was really a means of muzzling the expression of opinion or restricting the freedom of the press, the court must consider the intention of the authorities which ordered these prohibitions. What became clear as the evidence unfolded was that the concern of the members of Cabinet was that the newspaper had a political agenda to change the system of government in this country. Although concern was expressed at the claimed suggestion of violent overthrow, I am satisfied that the true reason was Cabinet's concern at the effect of the political criticisms of the Government expressed by this newspaper and the effectiveness of its dissemination of those views.
Central to that concern was, I accept, a deeply felt mistrust of a paper which can attack the institution and the personalities of the monarchy. That attitude is reflected by the Special Branch which felt it necessary to warn of the intention of the paper to achieve the goal of changing the current structure of Government when it comes to the election in 2004. It is this general suspicion of any attempt to criticise the King or the Government which clearly was irking the members of Cabinet and the others who had reported to them.
The Minister of Police referred to concern in Cabinet to protect the country from a paper with no basis in this country. He believed the plaintiffs were committed to overthrowing the system in Tonga. He asked the rhetorical question in the witness box, "What is the purpose of saying people have the power and you can change? That is Marxism that is being advocated here".
The Minister of Finance described how, at the Cabinet meeting of 19 February 2003 the evidence of a political agenda to discredit and incite disaffection against His Majesty and the Government of Tonga was `sufficient enough to necessitate action be taken'. He told the court that Cabinet decided, at that meeting, that the contents and political agenda of the Taimi were unacceptable and it was not in the public interest to continue the importation. There have been frequent references to the unacceptable standard of journalism but any examples given, rather than relating to the actual standard, deal with what Cabinet clearly felt was unacceptable content because of its `anti-attitude' which appears to mean its opposition to the Government.
It is only too apparent that the overriding concern of the Ministers was that the Taimi had a political agenda that opposed the present political arrangements in the country.
In cases of judicial review based on illegality in the manner of exercise of a statutory power in terms of breach of constitutional rights, the court must consider the intended and the actual effect of the decision and of any action taken under it.
If an authority by the exercise of a statutory power in accordance with the terms of the Act granting it, causes a situation that, as a consequence but independently of the purposes of the power, causes a breach of the person's rights under a provision of the Constitution, it must be considered in terms of the proximity of the action to the breach of the constitutional provision. It is different if the decision is proved to have been taken with the deliberate intention that clause 7 should be rendered ineffective. As I shall explain, I consider the decisions in this case were made with that intention.
The effect of these orders was the imposition of a blanket ban on a newspaper which had been sold in this country for a long time because it had a political agenda which aimed to change the system of government in this country. I have no hesitation in saying that an attempt to muzzle a paper simply because it expresses views contrary to, or critical of, the policies of the government in power is a blatant and serious abuse of clause 7.
The plaintiffs ask the court to declare that the terms of the sections under the Customs and Excise Act and the Prohibited Publications Act are such that, if implemented as occurred here, they are inconsistent with clause 7 and so are void. I cannot accept that proposition. The provisions of section 34 and section 35 and the Schedule do not, in themselves, contravene the Constitution. What is complained of in this case is the manner in which they were applied and the orders sought depend on the court's view of that because, if that is found to have contravened the Constitution, it gives the court the right of review and correction on grounds of illegality.
Further considerations apply to the Order in Council. Unlike sections 34 and 35 of the Customs and Excise Act, the powers given under the Prohibited Publications Act are directly related to freedom of the press and of expression of opinion. Those powers are very wide and a prohibition can apply to future and, as yet, unwritten works.
The wording of section 3 raises an important point in terms of press freedom. -As has been suggested in many other jurisdictions, the determination of the public interest is not a satisfactory test when applied to freedom of speech or of the press. Its failing is that it requires a single person or, in this case, a single body, to determine what is the public interest when freedom of the press has already been determined to be in the public interest by the supreme law in clause 7. Frequently, as in this case, the authority deciding that issue is the body which is affected by the articles it is sought to prohibit.
As has been pointed out already, the section gives the Privy Council power to make an order for the future. It allows an overall prior restraint on publication which is a very clear and far-reaching restriction on press freedom. It is very different from the imposition of a ban on an existing paper or taking action under the criminal law for a previous publication. The English jurist Blackstone in his `Commentaries' made the distinction when referring to the essential liberty of press freedom:
"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in. freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity." As quoted by Dalgety J in Kingdom of Tonga v Pohiva [1993] Tonga LR 25 at 44.
There is no question that, if a paper breaches the criminal law, the protection of freedom of speech will have to be tested in relation to the circumstances of the case in a court of law. Where a particular publication is seen to have published something particularly damaging or offensive to the public, a prohibition under the Prohibited Publications Act may reasonably be ordered in the public interest despite the terms of clause 7 but the determination of the public interest must be made on a true consideration of all factors relevant to determine the public interest and not just based on the decision maker's view of what it should be.
When the Privy Council determines the public interest in relation to a proposed order under the Prohibited Publication Act, it must take all these matters into consideration and make its decision on proper grounds.
There may be cases where the inherent nature of a publication is such that the considerations at the time of making the order will be known to apply in the future and such a prohibition may be justifiable in the wider public interest but, in such cases, the reason for the ban is likely to be generic rather than specific. Thus a ban, for example, on all future issues of a pornographic paper or one that is published solely to advocate drug taking could be a justifiable restriction on freedom of the press but a ban, as in this case, on future publication of a paper 'in which the contents of previous issues have been largely, and sometimes totally, innocuous and on no more than an assumption it will contain improper material, is an unjustified infringement of clause 7.
As has been stated, the terms of clause 7 are wide and were clearly meant to remain unqualified as part of the `palladium of Freedom' referred to by Tupou I. The clause makes it lawful for every man to speak or write his opinions. They are his opinions. It matters not that he expresses them badly or if they offend persons in positions of power or if they advocate even drastic reform of the system of government by lawful means. They may be critical the Government or members of the Government; including the King in relation to any act he makes as part of executive government. The criticism may be fair or unfair, cruel or benign. This is the right of every person under our Constitution subject only to the restriction that, if the opinions expressed offend against the law, then sanctions may be sought under that law. If the impugned articles meant what the witnesses claimed they did mean, that is the sanction one might have expected to see used to prevent the criminal acts rather than such a overall prohibition to try and remove entirely what was clearly a source of irritation to Government.
In the present case, Privy Council made an order that clearly infringed and was intended to infringe the Taimi's right under clause 7. That decision was made to prevent future editions from being brought into the country the contents of which could not be known. I consider such an order was in breach of clause 7, is therefore subject to review and must be corrected.
However, for the same reasons as I have stated in relation to the provisions of the Customs and Excise Act, I cannot accept that my conclusions are sufficient to declare section 3 void as inconsistent to clause 7.
It has been suggested that the concluding words of clause 7 mean that the direct or implied criticism of the King in some of the articles considered by Cabinet are not protected under the freedom of the press. I do not accept that is the proper interpretation of that passage.
The first part is a clear reference specifically to the Official Secrets Act and the Defamation Act; Kingdom of Tonga v Pohiva op cit. The laws for the protection of the King and the Royal Family clearly means any laws which have the express purpose of protecting the King and the members of the Royal family from opinions and statements spoken, written or printed. Such laws include, for example, the specific offence under section 3 of the Defamation Act and those parts of treason and sedition which refer to words directed against the King or other members of the Royal Family as opposed to those directed against the state. Where statements made offend against those laws, the person making them may be charged under the relevant law and will not be able to claim the protection of clause 7.
That is not this case. The Customs and Excise and Prohibited Publications Acts are not laws for the protection of the King and the Royal Family. One is for the collection of revenue and management of customs and excise and the other to protect the interests of the public as a whole.
Passing to the terms of clause 4, that provision is relevant to the conclusion by the Chief Commissioner and the Privy Council that the paper should not be imported because it was foreign and foreign owned. The first defendant told the court that, if it had been a Tongan paper that needed to be imported, it would not have been prohibited even if it espoused the same views as the Taimi. It should be noted that the Special Branch report expressed the same concern, about Kele'a as it did about Taimi. The first defendant told the court that he considered the paper unacceptable because it was `a foreign owned organisation pursuing a political agenda domestically'. He stated that foreign ownership was crucial in his decision although he acknowledged he did .not know of any previous case where this had been the sole basis of a prohibition under the Customs and Excise Act.
The Minister of Police was asked if he had any objection to a paper which advocates change by peaceful means and responded by posing the question, "From overseas people to tell this government what to do?" He was asked what about a paper that is not foreign owned and replied, "What has the paper got to do with it? Are these changes the Government wants to bring about? A local paper, yes, no problem but I add it must be within the law." Later when asked about the right of papers to advocate change, he replied, "I have no problem with a local paper doing it. If a foreign paper does it, I would not ban it. The Taimi is a different category that should be stopped."
I do not go into the evidence further. I am satisfied that the fact the paper was considered to be foreign owned was a major consideration in the decision of the Chief Commissioner. Equally Cabinet clearly attached great weight to it and it was included in the submission placed before Privy Council which was adopted without discussion.
These were indefinite future bans of a paper which had been circulating lawfully in Tonga for some years. I consider that the effect of these decisions was effectively to impose different rules on the Taimi from those applying to other papers. It has never been claimed that there was any provision, statutory or otherwise, restricting foreign companies simply because they are foreign and it is clear that there are many in the country that exist and function under the normal laws of this country and others abroad which are able to send their goods to Tonga without any restriction specifically because they are foreign. There are many Tonga-born people who, like the third defendant have taken citizenship of another country, but who live here without any special restriction imposed simply because they are no longer Tongan.
As a basis for the decisions under the Customs and Excise and the Prohibited Publications Acts, the inclusion of the fact the paper was foreign as a reason for prohibition is clearly inconsistent with the protection provided by clause 4 and renders the decisions illegal in consequence.
The plaintiffs also ask the court to find that the actions of the defendants were a breach of the provisions of clause 10 of the Constitution as the prohibitions were, in truth, a punishment for the past sins of the paper. I have stated the effect of natural justice in this case and I do not consider it necessary or appropriate to consider clause 10 in this context.
The result
I, therefore, make the following orders:
1. First claim in relation to the section 34 order.
(a) I declare that the section 34 decision and notice were unlawful and invalid.
(b) As a consequence I further declare that the Taimi 'o Tonga is not a prohibited import in terms of section 34.
(c) I order certiorari against the first defendant to quash the section 34 order.
(d) I decline to make the declaration that section 34 is inconsistent with the Constitution.
(e) I decline to grant the injunction sought. The order has been quashed and I have no doubt, therefore, that the authority will not continue to apply the order.
2. Third claim in relation to the Schedule II declaration
(a) I declare that the Schedule II decision and declaration are unlawful and invalid.
(b) As a consequence I declare that the Taimi `o Tonga is not a prohibited import in terms of section 35 of the Customs and Excise Act.
(c) I order certiorari against the first defendant to quash the Schedule II declaration.
(d) I decline to make the declaration that section 35 and Schedule II part I paragraph 7 are inconsistent with the Constitution.
(e) I decline to grant the injunction sought as unnecessary in view of the order of certiorari.
3. Fifth claim in relation to the Order in Council
(a) I declare that the Order in Council is unlawful and invalid.
(b) As a consequence I order that the Taimi `o Tonga is not a prohibited publication under section 3 of the Prohibited Publications Act.
(c) I order certiorari against the second defendant to quash the Order in Council
(d) I declare that section 3 of the Prohibited Publications Act is inconsistent with clause 7 of the Constitution to the extent that any Order in Council made under it fails to state the grounds upon which the Order in Council is considered to be in the public interest.
(e) I decline to grant the injunction sought as unnecessary in view of my order of certiorari.
I order that the defendants shall pay the plaintiffs' costs of the hearing. The cost of the preparation of the claim and all interlocutory proceedings shall await the determination of the remainder of the claim.
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