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Tonga Law Reports |
IN THE SUPREME COURT OF TONGA
Taione anors
v
Kingdom of Tonga
Supreme Court, Nuku'alofa
Webster CJ
CV 374/2004
30, 31 August, 1, 2 September 2004; 15 October 2004
Constitutional law – validity of legislation – three Acts declared void Constitutional law – freedom of expression – Acts too restrictive – void Constitutional law – constitutional damages – restriction on availability – void
The plaintiffs challenged the amendments to the Constitution of Tonga purporting to have been made by the Act of Constitution of Tonga (Amendment) Act 2003; and they challenged the Media Operators Act 2003 and the Newspaper Act 2003, both of which they claimed to be invalid. The basic primary factual chronology relevant to the application was established as follows:
The legislation which was challenged followed chronologically a series of events in 2003 where the Government had enacted various pieces of legislation which had the effect of placing certain restrictions on the freedom of the Press. The previous Chief Justice had found that the legislation was invalid and unconstitutional. Those decisions were subsequently upheld by the Court of Appeal.
The outline chronological history of the three Acts which were challenged was:
26 May: Ward CJ delivered the 2nd Lali Media decision.
28 May: Cabinet recommended to Privy Council the Act of Constitution (Amendment) Bill 2003 [the Constitution Bill] and the Media Operators Bill 2003 [the Media Bill].
30 May: Cabinet recommended to Privy Council that the Newspaper Bill 2003 [the Newspaper Bill] be approved for tabling and referred to the Privy Council.
Privy Council approved all three Bills for tabling in the Legislative Assembly.
17 Jun: Cabinet recommended to Privy Council that Constitution Bill be approved for tabling and referred to Privy Council; and Media Bill be approved for tabling and referred to Privy Council.
20 Jun: Privy Council approved tabling of Constitution Bill and Media Bill.
1 Jul: Cabinet again recommended to Privy Council that the Newspaper Bill be approved for tabling and referred to the Privy Council.
8 Jul: Privy Council approved tabling of Newspaper Bill.
16-17 Jul: Appeals heard by Court of Appeal.
25 Jul: Court of Appeal upheld Lali Media decisions of Ward CJ.
29 July: Media Bill passed three times by Legislative Assembly.
16 Oct: Constitution Bill passed three times by Legislative Assembly.
20 Oct: Newspaper Bill passed three times by Legislative Assembly.
5 Nov: Cabinet unanimously agreed to Constitution Bill being submitted to HM The King for assent.
7 Nov: Privy Council unanimously recommended that Constitution Bill be submitted to HM The King for assent. 18 Nov: Newspaper Act 2003 [the Newspaper Act] assented to by HM The King.
21 Nov: Act of Constitution of Tonga (Amendment) Act 2003 [the Constitution Amendment Act] assented to by HM The King.
24 Nov: Media Operators Act 2003 [the Media Act] assented to 60 by HM The King.
27 Nov: All three Acts published in Tonga Government Gazette.
The challenge was by way of judicial review, or alternatively simply as being inconsistent with the Constitution and hence void to that extent in terms of Clause 82 of the Constitution, as amended in 1990. The two principal issues were: the Constitution of Tonga and its amendment; and the liberty of freedom to speak, write, and print opinions and freedom of the press, otherwise known as freedom of expression.
Held:
1. The Court found that the Media Act 2003 was inconsistent with Cl 7 of the Constitution because it would prevent certain people from exercising freedom of the press, and thus would prevent the public from having access to information and comment freely.
2. The Newspaper Act 2003 gave such wide powers to the Minister to determine content standards for newspapers that it was impossible to say that those powers fell entirely within the recognised exceptions to the freedom of the press granted by Cl 7. The licensing provisions were also wide restraints on publication or circulation and so restrictions on freedom of the press.
3. The Acts could not stand because they were too widely expressed, too unclear as to its limitations, and too intimidating because a person could not be sure whether or not what he or she wrote may result in prosecution or even imprisonment. It was not the Court's function to redraft legislation and the Act was unacceptable as it stood. In each Act the inconsistent provisions were so extensive and inextricably bound up with the other provisions that the latter could not survive independently.
4. The Court found that both Acts were inconsistent with Cl 7 and were therefore void in terms of Cl 82 of the Constitution.
5. Freedom of the press under the Constitution was not limitless and there remained a responsibility on the press. It was important that freedom of the press did not mean that a newspaper had licence to publish what it wanted, when it wanted, about whom it wanted, and how it wanted in any improper, mischievous or illegal manner.
6. The Court found that it was likely that constitutional damages may be available under the Constitution and if so, the new Cl 103A inserted in 2003 would significantly affect and restrict the law of liberty. The Court therefore found that Cl 103A was void to the extent that it was inconsistent with the law of liberty in the Constitution and any consequent right to constitutional damages.
Cases considered:
'Akau'ola & Kingdom of Tonga v Pohiva [1990] Tonga LR 159 (CA)
'Akau'ola v Attorney General [1997] Tonga LR 36 (CA)
Abrams v United States [1919] USSC 206; (1919) 250 US 616
Alesana v Samoa Observer Co Ltd [1998] WSSC 1
Armstrong v Budd (1969) 71 SR (NSW) 386
Arnold v King-Emperor (1914) 83 LJPC 300
Attorney-General v BBC [1980] 3 All ER 161 (HL)
Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545 (HL)
Attorney-General v Observer (Times Law Report, 22 December 1987)
Attorney-General v Trethowan [1932] UKPC 1; [1932] AC 526 (PC)
Attorney General for Alberta v Attorney General for Canada [1947] AC 503 (PC)
Attorney General for Australia v R & Boilermakers' Society of Australia [1957] 2 All ER 45 (PC)
Attorney General for Ontario v Reciprocal Insurers [1924] AC 328 (PC)
Attorney-General of the Gambia v Momodu Jobe [1984] AC 689 (PC) Attorney-General of Trinidad & Tobago v Whiteman [1991] 2 AC 240, 247 (PC)
Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Boaler Re Vexatious Actions Act 1896, Re [1914-15] All ER Rep 1022 (CA)
Bribery Commissioner v Ranasinghe [1964] UKPC 1; [1964] 2 All ER 785 (PC) Chavunduka v Minister of Home Affairs [2000] 4 LRC 561
Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214
Commissioner of Taxation of the Commonwealth of Australia v Lutovi Investments Proprietary Limited [1978] HCA 55; (1978) 140 CLR 434
Cormack v Cope [(1974) 131 CLR 432
Derbyshire CC v Times Newspapers Ltd [1992] UKHL 6; [1993] 1 All ER 1011 (HL)
Desjarlais, Re [1989] 3 FCR 605 FCA (Canada)
Ellen St Estates Ltd v Minister of Health [1934] 1 KB 590 (CA)
Fie'eiki v Fifita [1995] Tonga LR 184 (CA)
Finau v 'Alafoki & anor [1989] Tonga LR 66
Fotofili v Siale [1987] TOPC 2; [1987] SPLR 339 (PC)
Fuko v Vaikona [1990] Tonga LR 148 (CA)
Hector v Attorney-General of Antigua [1990] 2 All ER 103 (PC)
Hector v Attorney-General of Antigua and Barbuda [1990] 2 WLR 606
Hinds v The Queen [1976] 1 All ER 353 (PC)
Ingraham v McEwan [2003] 4 LRC 270 (CA)
James v Commonwealth [1936] HCA 32; (1936) 55 CLR 1, [1936] 2 All ER 1449 (PC)
Kariapper v Wijesinha [1967] 3 All ER 485 (PC)
Kielley v Carson [1842] EngR 593; [1842] 4 Moore PC 63 at 91 (13 EH 225 at 236)
Kingdom of Tonga v Pohiva [1993] Tonga LR 25
Lali Media Group Ltd & 'Akau'ola v 'Utoikamanu & The Kingdom of Tonga [2003] Tonga LR 186
Lali Media & Others v Prince 'Ulukalala Lavaka Ata & Others & The Kingdom of Tonga [2003] Tonga LR 117
Lim Laboratories Ltd v Evans [1984] 2 All ER 417 (CA)
Lyon v Daily Telegraph [1943] 1 KB 753
Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 (PC)
McCawley v The King [1920] AC 691 (PC)
Minister of Lands v Pangia (Scott J unreported 1932)
Minister of Police v Moala [1997] Tonga LR 210 (CA)
New York Times Co v United States [1971] USSC 145; 403 US 713, 91 SCt 2140, 29 L Ed 2d 822 (1971)
Olivier v Buttigieg [1966] 2 All ER 459 (PC)
Ontario v Canada [1896] UKLawRpAC 27; [1896] AC 348
Pepper (Inspector of Taxes) v Hart [1992] UKHL 3; [1993] 1 All ER 42 (HL)
Petition of The Earl of Antrim & 11 Other Irish Peers [1967] 1 AC 691
Phillips v Britannia Hygienic Laundry Co Ltd [1923] All ER Rep 127 (CA)
Pillai v Mudanayake [1955] 2 All ER 833 (PC)
Pinder v The Queen [2002] UKPC 46; [2003] AC 620 (PC)
Pohiva v Prime Minister and Kingdom of Tonga [1988] LRC (Const) 949
President & Trustees of Tonga Ma'a Tonga Kautaha, Ex Parte [1908-1959] Tonga LR Vol 1 (1911) 9
Public Prosecutor v Ooi Kee Saik [1971] 2 MLJ 108
Pyx Granite Co v Ministry of Housing [1959] 3 All ER 1 (HL)
R v Central Independent Television plc [1994] 3 All ER 641
R v Halliday [1917] UKHL 1; [1917] AC 260
R v Home Secretary ex p Simms [1999] UKHL 33; [1999] 3 All ER 400 (HL)
R v Hughes [2002] UKPC 12; [2002] 2 AC 259 (PC)
R v Leitch [1998] 1 NZLR 420 (CA)
R v Pohiva (Case No 11/87, 15 January 1988)
R v Shipley, 21 St Tr 847
Read v Croydon Corporation [1938] 4 All ER 631
Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235 (PC)
Robati v Privileges Standing Committee of the Parliament of the Cook Islands [2001] NZAR 282 (CA)
Sanft v Fotofili [1987] TOPC 1; [1987] SPLR 354
Schenck v United States, [1919] USSC 64; 249 US 47, 39 SCt 247, 63 Led2d (1919)
Silkin v Beaverbrook Newspaper [1958] 1 WLR 743
Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 (CA)
State v Zuma 1995 (4) BCLR 401
T & T Newspaper Publishing Group Ltd v Central Bank of Trinidad & Tobago [1990] LRC (Const) 391
Tarr v Tarr [1972] 2 All ER 295 (HL)
The State v Petrus [1985] LRC (Const) 699
Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] UKHL 5; [1955] 2 All ER 657 (HL)
Toronto v Virgo [1895] UKLawRpAC 46; [1896] AC 88
Touliki Trading Enterprises Ltd v Fakafanua [1995] Tonga LR 8
Touliki Trading v Fakafanua & Kingdom of Tonga (No 2) [1996] Tonga LR 145 (CA)
Tu'itavake v Porter [1989] Tonga LR 14
'Utoikamanu v Lali Media Group Ltd [2003] Tonga LR 218 (CA)
Vaikona v Fuko (No 2) [1990] Tonga LR 68
Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 (KBD)
Statutes considered:
Act of Constitution of Tonga (Amendment) Act 2003
Broadcasting Act 1989
Civil Law Act (Cap 25)
Civil Law (Amendment) Act 2003
Constitution of Tonga (Cap 2)
Interpretation Act (Cap 1)
Land Act (Cap 132)
Media Operators Ordinance 2003
Prohibited Publications Act (Cap 54)
Rules considered:
European Convention of Human Rights
Counsel for plaintiffs: Dr R E Harrison QC
Counsel for defendant: Mr Radich, Ms Hodgson, and Mr Kefu
Judgment
Preliminary
This is a challenge by the plaintiffs to the amendments to the Constitution of Tonga purporting to have been made by the Act of Constitution of Tonga (Amendment) Act 2003; and to the Media Operators Act 2003 and the Newspaper Act 2003, both of which are said to be invalid. The challenge is by way of judicial review, or alternatively simply as being inconsistent with the Constitution and hence void to that extent in terms of Clause 82 of the Constitution, as amended in 1990.
Evidence
In supplement of affidavits already filed for the plaintiffs by the 1st plaintiff Mr Alan F Taione; Mr Kalafi Moala, Chief Executive of the 2nd plaintiff, Lali Media Group Ltd; the 2nd plaintiff Mr Mateni Tapueluelu, Editor of Taimi 'o Tonga; the 3rd plaintiff Mr Po'oi Pohiva, Publisher and Deputy Editor of Kele'a; and the leading 4th plaintiff Mr S 'Akilisi Pohiva, No 1 People's Representative of Tongatapu, Publisher and Editor of Kele'a, the plaintiffs led evidence from Mr Pesi Fonua, Editor of Matangi Tonga; and the 2nd plaintiff Mr Mateni Tapueluelu.
The defendant filed an affidavit from Mrs 'Eseta F Fusitu'a, Chief Secretary and Secretary to HM Cabinet, and also led evidence from her in order that she could be cross-examined in relation to that affidavit. The defendant also filed an affidavit from Dr 'Ana M Taufe'ulungaki, a Tongan who is Director of the Institute of Education of Suva, as an expert witness on the social context of the Constitution. The plaintiffs' Counsel Dr Harrison QC wished to cross-examine this witness in relation to her affidavit, but she was not available on 30 August as she had commitments in Fiji, and the defendant did not seek an adjournment until she was available, so I ruled that the case should proceed and I would consider the standing of her evidence in the whole context of the case and all submissions. Subsequently Dr Taufe'ulungaki would have been available on 3 September, but Dr Harrison then decided not to pursue his original request to cross-examine her.
In the event, because this case turns on the interpretation of the Constitution of Tonga and whether the 2 Acts challenged are consistent with the Constitution, apart from the evidence about the occurrence of the basic events, which was essentially agreed, the Court did not require to take into account most of the other peripheral evidence, including the oral evidence heard on 30 August. The affidavit of Dr Taufe'ulungaki is dealt with later in this decision.
Other preliminary matters
Several other preliminary matters were raised, including the standing to bring this claim of the 4th plaintiffs, who numbered around 150 and included People's Representatives, along with District and Town Officers, religious leaders, and individuals and organisations from throughout Tonga. During the course of the hearing the defendant accepted that the 4th plaintiffs had such standing, and so dropped its challenge on that ground.
The defendant also raised the relevance of reading in evidence from the previous cases concerning Lali Media and the banning of Taimi 'o Tonga, but it was agreed that that issue should also be dealt with in my decision at the end of the case after hearing all submissions. In the event, while I did not entirely accept the defendant's submission, as can be seen below while arriving at my decision in this case I only required to make minimal reference to relevant parts of that evidence, though I referred to the decisions of the previous Chief Justice and the Court of Appeal in the previous Lali Media cases.
Submissions
Dr Harrison QC made written and oral submissions in support of the plaintiffs' claims (for 1½ days); Mr Radich made written and oral submissions in reply in support of the defendant's defence (for 1 day); then Dr Harrison made further submissions for the plaintiffs in reply (for ½ day). Both Counsel also submitted extensive legal authorities to the Court.
I wish to record my gratitude to all Counsel involved for the thoroughness of their very extensive written and oral submissions, which has made my task very much easier.
Primary factual chronology
There was little or no dispute about the basic primary factual chronology which I consider is relevant to this application. On the evidence and productions presented to it, I found that the following material primary factual chronology relevant to this application was established:
The legislation which is challenged in this case followed chronologically a series of events in 2003 (described in more detail below) where the Government had enacted various pieces of legislation which had the effect of placing certain restrictions on the freedom of the Press. The previous Chief Justice had found in Lali Media Group Ltd & 'Akau'ola v 'Utoikamanu & The Kingdom of Tonga [2003] Tonga LR 186 [1st Lali Media decision]; and Lali Media & Others v Prince 'Ulukalala Lavaka Ata & Others & The Kingdom of Tonga [2003] Tonga LR 117 [2nd Lali Media decision] (on 4 April and 26 May 2003 respectively) that the legislation was invalid and unconstitutional. Those decisions of the previous Chief Justice were subsequently upheld by the Court of Appeal on 25 July 2003 in 'Utoikamanu v Lali Media Group Ltd [2003] Tonga LR 218 (CA) [the Lali Media appeals].
Following chronologically those earlier events in 2003, the outline chronological history of the 3 Acts which are now challenged was:
26 May: Ward CJ delivers the 2nd Lali Media decision.
28 May: Cabinet recommends to Privy Council the Act of Constitution (Amendment) Bill 2003 [the Constitution Bill] and the Media Operators Bill 2003 [the Media Bill].
30 May: Cabinet recommends to Privy Council that the Newspaper Bill 2003 [the Newspaper Bill] be approved for tabling and referred to the Privy Council. Privy Council approves all 3 Bills for tabling in the Legislative Assembly.
17 Jun: Cabinet recommends to Privy Council that Constitution Bill be approved for tabling and referred to Privy Council; and Media Bill be approved for tabling and referred to Privy Council.
20 Jun: Privy Council approves tabling of Constitution Bill and Media Bill.
1 Jul: Cabinet again recommends to Privy Council that the Newspaper Bill be approved for tabling and referred to the Privy Council.
8 Jul: Privy Council approves tabling of Newspaper Bill.
16-17 July: Appeals heard by Court of Appeal.
25 July: Court of Appeal upholds Lali Media decisions of Ward CJ.
29 July: Media Bill passed 3 times by Legislative Assembly.
16 Oct: Constitution Bill passed 3 times by Legislative Assembly.
20 Oct: Newspaper Bill passed 3 times by Legislative Assembly.
5 Nov: Cabinet unanimously agrees to Constitution Bill being submitted to HM The King for assent.
7 Nov: Privy Council unanimously recommends that Constitution Bill be submitted to HM The King for assent.
18 Nov: Newspaper Act 2003 [the Newspaper Act] assented to by HM The King.
21 Nov: Act of Constitution of Tonga (Amendment) Act 2003 [the Constitution Amendment Act] assented to by HM The King.
24 Nov: Media Operators Act 2003 [the Media Act] assented to by HM The King.
27 Nov: All 3 Acts published in Tonga Government Gazette.
Principal issue -validity of amendment of Clause 7 of the Constitution
The principal and first issue in this case, although by no means the only issue, is whether the purported amendment of Clause 7 of the Constitution of Tonga by the Act of Constitution of Tonga (Amendment) Act 2003 [the Constitution Amendment Act] is valid.
When the Constitution was enacted in 1875 it read:
"Freedom of the press
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 slander or the laws for the protection of the King and the Royal Family."
Clause 7 remained unchanged for over a century, but has been amended once before, in 1990, following which it read:
"Freedom of the press
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."
After the 2003 amendment it purports to read:
"Freedom of the press
7. (1) 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 slander or the laws for the protection of the King and the Royal Family.
(2) It shall be lawful, in addition to the exceptions set out in sub-clause (1), to enact such laws as are considered necessary or expedient in the public interest, national security, public order, morality, cultural traditions of the Kingdom, privileges of the Legislative Assembly and to provide for contempt of Court and the commission of any offence.
(3) It shall be lawful to enact laws to regulate the operation of any media."
Amendment of the Constitution
Although the 1875 Constitution has been amended several times previously, sometimes in quite major respects, both Counsel agreed that this appears to be the first time that the validity or legitimacy of an amendment to the Constitution has been challenged. This case is therefore of very great importance in the legal and constitutional history of Tonga.
Clause 79 of the Constitution provides:
"Amendments to Constitution
79. It shall be lawful for the Legislative Assembly to discuss amendments to the Constitution provided that such amendments shall not affect the law of liberty the succession to the Throne and the titles and hereditary estates of the nobles. And if the Legislative Assembly wish to amend any clause of the Constitution such amendment shall after it has passed the Legislative Assembly three times be submitted to the King and if the Privy Council and the Cabinet are unanimously in favour of the amendment it shall be lawful for the King to assent and when signed by the King it shall become law."
In relation to the proceedings of the Assembly when the Constitution Bill was passed, the plaintiffs did not challenge the internal proceedings of the Assembly, ie they accepted that the manner and form of the passing of the Constitution Bill was valid.
Freedom of expression -general
This case is also crucial for 2 other reasons, the first of which is that it concerns one of the great constitutional and human rights freedoms, the allied freedoms of freedom of speech and freedom of the Press, which I refer to collectively as freedom of expression.
As already mentioned, the legislation which is challenged in this case followed a series of events in 2003 which had led to decisions of the previous Chief Justice that certain pieces of legislation which had the effect of placing restrictions on the freedom of the Press were invalid and unconstitutional. Those decisions of the previous Chief Justice were subsequently upheld by the Court of Appeal on 25 July 2003 in 'Utoikamanu v Lali Media Group Ltd [2003] Tonga LR 218 (CA), which is binding on this Court in relevant cases such as this, and where the Court of Appeal said about freedom of expression:
"Before proceeding to consider the particular facts of these appeals, it is worth emphasizing, as Dr Harrison QC did in his submission by reference to John Stuart Mill's famous essay On Liberty, that the freedom of the press is not so much conferred on the press as on the people whom it sets at liberty to receive knowledge and opinions, and to debate matters concerning them freely. This has always been regarded as the hallmark of a free society, and the Constitution places Clause 7 at its forefront, as one of a group of clauses concerned with liberty. Those clauses are constitutional guarantees entrenched in a unique way, along with the structure of the monarchy and the nobility, by Clause 79, which states that amendments of the Constitution "shall not affect the law of liberty". Their place in the Constitution is explained in some detail in Touliki Trading v Fakafanua & Kingdom of Tonga (No 2) [1996] Tonga LR 145 at 152-154; see also the speech of King Tupou I at the opening of the Parliament at which the Constitution was adopted in 1875.
......
Clause 7 is a constitutional guarantee of freedom of speech and of the press. Some limitations are conceded by its language and, as applies to any provision in an instrument, some modification of it may be implicit in the context in which it appears (see, for example, Minister of Police v Moala [1997] Tonga LR 210 (CA) at 219, commenting on the effect on it of Clause 70). But such a guarantee is not to be ignored or brushed aside. .... Nor is advocacy of amendment of the Constitution by constitutional processes unlawful. How could it be, when Clause 79 of the Constitution expressly contemplates its amendment and the discussion of proposed amendments? In a system of responsible government which includes the participation of regularly elected representatives of the people and of the nobles, public discussion is an essential element, as the great King Tupou I plainly recognized: see also Minister of Police v Moala at 219-220, a passage more accurately reported in [2001] NZAR 917 at 928.
In our opinion, the appeals fail also on the ground that the actions taken under the various provisions earlier set out violated Clause 7 of the Constitution."
What was said in Minister of Police v Moala at 219-220 and [2001] NZAR 917, 928 (which was about Clause 70 of the Constitution and contempt of the Legislative Assembly) was:
"Clause 70 does not attempt to pick up the wide ambit of the powers and privileges of the House of Commons ... . Nor, in a written Constitution such as that of Tonga, would it be appropriate for it to do so. Each of the organs of Government in Tonga has the powers that are defined by the Constitution, which as the Chief Justice pointed out, and as was pointed out by this court in Touliki v Fakafanua ... , places at its very forefront the liberties of Tongan citizens. Clause 70 is intended to trench upon those liberties only so far as is necessary to enable a Parliamentary Assembly to function effectively. The clause is an exception to a principle of liberty, and should be understood, not in any loose or expansive sense, but in accordance with its terms."
"To discuss legislation or other resolutions proposed, or to be proposed, to the Legislative Assembly, or passed or to be passed by it, is of the very essence of a constitutional polity - which Tonga is, as clause 31 of the Constitution explicitly states. Indeed, clause 7 makes freedom of the press subject only to the law of slander (an additional reason to read clause 70 as referring to libel in the legal sense) and the protection of the Crown. What Milton wrote, translating Euripides (Doré ed, The Complete Poems of John Milton, vol II, p 665), is embraced by our Constitution:
"This is true liberty, when freeborn men
Having to advise the public may speak free; ...
What can be juster in a state than this?" "
There is therefore already much authority in Tongan law upholding the freedom of expression.
However in considering the words of Clause 7 it is also appropriate to draw some guidance from other jurisdictions, as both Counsel sought to do in support of their respective cases, always bearing in mind that this Court's primary duty in this case is to interpret and apply the Constitution of Tonga on the principles set out below. I considered that 2 aspects came over strongly.
The first aspect is that there should in general be no prior restraint on publication, though those who publish in possible breach of implied limitations do so at their peril and may find themselves liable to sanctions after the event if they have overstepped the mark. Authorities for that were set out at some length by Dalgety J in Kingdom of Tonga v Pohiva [1993] Tonga LR 25 at 44-45:
"Blackstone in his Commentaries on the Laws of England IV 151 recognised the need for a free press, describing it as an essential liberty –
"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. To subject the press to the restrictive power of a licenser, as was formerly done ... is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or.., offensive writings, which, when published, shall on a fair and' impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment."
That approach is markedly similar to that adopted by Lord Mansfield in R v Shipley 21 St Tr 847 at 1040, namely freedom to print "without previous licence, subject to the consequences of law". All this is wholly consistent with the statement by Professor Street in Freedom, the Individual and the Law at page 101 that –
"freedom of the press means freedom to publish ... not licence for the press to acquire news as it thinks fit, immune from the restraints of the law as it does so."
There can of course be no dubiety about the need for a free press. In the Spycatcher case [Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545] Scott J at 589 considered the ability of the press freely to report allegations of scandals in government as "one of the bulwarks of our democratic society. It could not happen in totalitarian countries. If the price that has to be paid is the exposure of the government of the day to pressure or embarrassment when mischievous and false allegations are made, then, in my opinion, that price must be paid". Lord Bridge (in the Privy Council) went somewhat further in Hector v Attorney-General of Antigua and Barbuda [1990] 2 WLR 606,608 –
"In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticisms amounts to political censorship of the most invidious and objectionable kind."
"
"The guiding principle was put thus by Lord Scarman in Attorney-General v BBC [1980] 3 All ER 161,183 (HL) –
"But the prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice." "
The second aspect is that the extent of any limitations on freedom of speech and of the Press should depend on proper and appropriate interpretation of the Constitution, and should not depend on the values and discretion of judges, as expressed by Lord Millett in Pinder v The Queen [2002] UKPC 46; [2003] AC 620 (PC) at 628-631:
"A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn, not to substitute the judges' views where it should be drawn. ......
Their [the judges'] function, which like all judicial functions is to be discharged fairly and impartially, is limited to interpreting the Constitution. As Lord Hoffmann said in Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 (PC) at 108:
"It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution. ... As Kentridge AJ said in giving the judgment of the South African Constitutional Court in State v Zuma 1995 (4) BCLR 401,412: 'If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation but divination.' "
and as earlier stated by Hoffmann LJ in R v Central Independent Television plc [1994] 3 All ER 641, 651-2 (CA):
"There are in the law reports many impressive and emphatic statements about the importance of the freedom of speech and the press. But they are often followed by a paragraph which begins with the word "nevertheless." The judge then goes on to explain that there are other interests which have to be balanced against press freedom. And in deciding upon the importance of press freedom in the particular case, he is likely to distinguish between what he thinks deserves publication in the public interest and things in which the public are merely interested. He may even advert to the commercial motives of the newspaper or television company compared with the damage to the public or individual interest which would be caused by publication.
The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.
Furthermore, in order to enable us to meet our international ... obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), it is necessary that any exceptions should satisfy the tests laid down in article 10(2). They must be "necessary in a democratic society" and fall within certain permissible categories, namely:
"in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, for maintaining the authority or impartiality of the judiciary."
It cannot be too strongly emphasised that outside the established exceptions, or any new ones which parliament may enact in accordance with its obligations under the Convention, there is no question of balancing freedom of speech against other interests. It is a trump card which always wins. ......
In any area of human rights like freedom of speech, I respectfully doubt the wisdom of creating judge-made exceptions, particularly when they require a judicial balancing of interests. The danger about such exceptions is that judges are tempted to use them. The facts of the individual case often seem to demand exceptional treatment because the newspaper's interest in publication seems trivial and the hurt likely to be inflicted very great. The interests of the individual litigant and the public interest in the freedom of the press are not easily commensurable. ... But no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case."
I have set out these quotations from high and respected authorities at some length because I wish to emphasise that these aspects come from many countries and lawyers with great respect and authority and are not simply personal ideas or values which I myself have conceived.
Serious matter for Court to declare legislation invalid
The second crucial matter is that the plaintiffs are asking the Court to declare invalid Acts in connection with those important freedoms which have been passed by the Legislative Assembly, which at any time is not a step that a court should take lightly. As I said in Tu'itavake v Porter [1989] Tonga LR 14:
"It is a serious matter for a court to declare that any Act passed by Parliament is unconstitutional and so invalid, and it is therefore not a step which a court should take hastily or lightly."
That is even more so in this case as it relates to the validity of amendments to the Constitution, but the Courts are the guardians of constitutional rights (see Pinder v The Queen [2002] UKPC 46; [2003] AC 620,628-631 (PC) at page 13 below).
It was accepted by both sides that, unlike many common law countries, Tonga has a supreme Constitution, which means that legislation passed by the legislature (ie the Legislative Assembly and HM The King in terms of Clause 56 of the Constitution, as set out at page 11 below) can reviewed by this Court in terms of Clause 82 of the Constitution, which now provides:
"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."
It can be noted that that clause has itself been amended twice, once in 1903, and more recently when the entire clause was replaced in 1990 by the wording above.
It was also accepted by both sides that as a result this Court has power to determine whether an Act passed by the Legislative Assembly (a) has been passed in accordance with the requirements of the Constitution; and (b) is consistent with the Constitution.
While, as mentioned above, it was not submitted in this case that the proceedings as such of the Legislative Assembly were at fault, it was stated by the Tongan Privy Council in Fotofili v Siale [1987] TOPC 2; [1987] SPLR 339 (PC) 347-9, which again is binding on this Court in relevant cases such as this:
"It follows that in England the validity of an Act of Parliament is not open to challenge on the ground that its passage through the House is attended by any irregularity.
The same is not true in Tonga, where there is a written Constitution. If, on a true construction of the Constitution, some event or circumstance is made a condition of the authentic expression of the will of the legislature, or otherwise the validity of a supposed law, it follows that the question whether the event or circumstance has been met is examinable in the Court, notwithstanding that the question may involve internal proceedings of the Assembly.
Again, a statutory provision can be examined and struck down if it is contrary to an express provision of the Constitution although its passage through the House was not attended by any irregularity.
The position is then that the Assembly of Tonga, and indeed any Parliamentary body based on a written Constitution, does not have the privilege of supremacy over the Courts enjoyed in the United Kingdom."
At the same sitting, in Sanft v Fotofili [1987] TOPC 1; [1987] SPLR 354, 358, the Tongan Privy Council considered a claim that a Bill had not been passed lawfully by the Legislative Assembly and, noting as relevant the passages from Sanft v Fotofili quoted above, confirmed that, provided that the constitutional requirements were met, the Court had "no jurisdiction to inquire into the 'internal proceedings' of the Assembly".
Presumption of constitutionality
There is a presumption of constitutional validity of legislation under which, if it is possible to read the statutory language as subject to an implied term which avoids conflict with constitutional limitations, the court should be very ready to make such an implication, as explained by Lord Diplock delivering the judgment of the Privy Council in London in Attorney-General of the Gambia v Momodu Jobe [1984] AC 689, 702 (PC):
"Where, as in the instant case, omissions by the draftsman of the law to state and express in words what, from the subject matter of the law and the legal nature of the processes or institutions with which it deals, can be inferred to have been Parliament's intention, a Court charged with the judicial duty or giving effect to Parliament's intention, as that intention has been stated in the law that Parliament has passed, ought to construe the law as incorporating, by necessary implication, words which would give effect to such inferred intention, wherever to do so does not contradict the words actually set out in the law itself and to fail to do so would defeat Parliament's intention by depriving the law of all legal effect."
This was endorsed in Hector v Attorney-General of Antigua [1990] 2 All ER 103 (PC) at 107.
Law of liberty
Reference has already been made to the provisions in Clauses 7 and 79 of the Constitution about the law of liberty. I understood it to be accepted by Counsel that in the context of the Constitution freedom of speech and freedom of the Press form part of the law of liberty, as indeed it was impliedly accepted by the Court of Appeal in the passage from the Lali Media appeals referred to at page 5 above.
However Mr Radich submitted for the defendant, and Dr Harrison accepted, as I do, that freedom of speech and freedom of the Press cannot mean absolute freedom, and that in practice, in addition to the 3 existing express limitations in the exceptions in Clause 7 for the law of defamation, official secrets or the laws for the protection of the King and the Royal Family, as accepted by the Court of Appeal in the Lali Media appeals it is circumscribed by implied limitations. Such limitations were referred to by Dalgety J in Kingdom of Tonga v Pohiva [1993] Tonga LR 25 at 45 and 46:
"However, the freedoms enshrined in English Common Law are not absolute. "The right of fair comment is one of the fundamental rights of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom": per Scott LJ in Lyon v Daily Telegraph [1943] 1 KB 753. An editor has exactly the same rights, neither more nor less, than any other citizen: see Silkin v Beaverbrook Newspaper [1958] 750 1 WLR 743 per Diplock J at 746. As with any journalist –
" ... his privilege is no other and no higher ... the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of every other subject. No privilege attaches to his position." per Lord Shaw in Arnold v King-Emperor (1914) 83 LJPC at 300.
That however is not to underestimate the crucial role played by the "Press" in modern society. It has "... a legitimate role in exposing scandal in Government. An open democratic society requires that to be so": Attorney-General v Observer (Times Law Report, 22 December 1987). As Martin CJ stated in R v Pohiva (Case No 11/87, 15 January 1988) –
"If a newspaper believes that wrong has been done it is right that it should report it. But it must first take careful steps to ensure that what it alleges is true."
In Spycatcher [Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545] at 623 Bingham LJ makes reference to a distinguished American author, Archibald Cox who recently wrote in Freedom of Expression at page 4 that –
"Freedom of expression, despite its primacy, can never be absolute. ... At any time unrestrained expression may conflict with important public or private interests ... Some balancing is inescapable. The ultimate question is always, where has -and should the balance be struck"
How the balance will be struck will of course depend on all the facts and circumstances of each particular case."
In James v Commonwealth [1936] HCA 32; (1936) 55 CLR 1, [1936] 2 All ER 1449 (PC) at 1473-4 the Privy Council in London, in illustrating the difficulties of interpreting the word "free" in the expression "trade between the states shall be absolutely free" in section 92 of the Commonwealth of Australian Constitution, referred in passing to the meaning of "free speech":
"In any case the use of the language involves the fallacy that a word completely general and undefined is most effective. A good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. "Free" in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law ... Free love, on the contrary, means licence or libertinage, though even so there are limitations based on public decency and so forth. Free dinner generally means free of expense, and sometimes a meal open to anyone who comes, subject however to his condition or behaviour not being objectionable. Free trade means in ordinary parlance freedom from tariffs. Free in sect. 92 cannot be limited to freedom in the last-mentioned sense."
Some of the limitations may also be seen in other jurisdictions, as both Counsel referred to in their submissions and are dealt with below at page 28 onwards.
Framework in the Constitution for legislation
Mr Radich for the defendant referred in his submissions to Parliamentary sovereignty, but I do not think that is the correct expression in Tonga, given the role played by HM The King in making legislation, as set out in Clause 56:
"Power of Legislative Assembly
56. The King and the Legislative Assembly shall have power to enact laws, and the representatives of the nobles and the representatives of the people shall sit as one House. When the Legislative Assembly shall have agreed upon any Bill which has been read and voted for by a majority three times it shall be presented to the King for his sanction and after receiving his sanction and signature it shall become law upon publication. Votes shall be given by raising the hand or by standing up in division or by saying "Aye" or "No"."
and in Clause 68:
"King's veto precludes discussion
68. Should the King withhold his sanction from any law passed by the Legislative Assembly and submitted to him for approval it shall be unlawful for the Legislative Assembly again to discuss such law until the following session."
There are also the specific provisions about HM The King's relations with the Assembly in Clause 38:
"King's relations with Parliament
38. The King may convoke the Legislative Assembly at any time and may dissolve it at his pleasure and command that new representatives of the nobles and people be elected to enter the Assembly. But it shall not be lawful for the Kingdom to remain without a meeting of the Assembly for a longer period than one year. The Assembly shall always meet at Nuku'alofa and at no other place except in time of war."
However the specific terminology is not crucial in this case – probably legislative supremacy is a better expression.
Jurisdiction of the Supreme Court
In this context it is also appropriate in setting out the constitutional framework and the jurisdiction of this Court to mention 3 provisions in the Constitution.
Clause 84, the first clause in the section of the Constitution headed The Judiciary provides:
"The Courts
84. The judicial power of the Kingdom shall be vested in the Court of Appeal, the Supreme Court, the Magistrate's Court, and the Land Court."
Clause 90, which has been amended several times, concerns the jurisdiction of this Court and provides:
"Jurisdiction of Supreme Court
90. The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the Court of Appeal in other land matters) and in all matters concerning Treaties with Foreign States and Ministers and Consuls and in all cases affecting Public Ministers and Consuls and all Maritime Cases."
The judicial oath is also stipulated in Clause 95 of the Constitution (as amended in 1966), in the case of judges who are not Tongan subjects, making it clear that the judge must perform his duties in accordance with the Constitution and the laws of the Kingdom.
Interpretation of the Constitution
I was referred by both Counsel to my own earlier decision (already referred to) in Tu'itavake v Porter on this subject.
In James v Commonwealth [1936] HCA 32; (1936) 55 CLR 1, [1936] 2 All ER 1449, 1464 (PC) the Privy Council in London said:-
"The words used [in a constitution] are necessarily general and their full import and true meaning can often only be appreciated when considered; as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning."
The guidelines enunciated in that decision had been foreshadowed in the Land Court in Finau v 'Alafoki & anor [1989] Tonga LR 66; and were repeated in Vaikona v Fuko (No 2) [1990] Tonga LR 68 and upheld by the Court of Appeal in the subsequent appeal in Fuko v Vaikona [1990] Tonga LR 148 (CA), thus binding this Court in a case such as this. I believe they are still substantially the law and, together with the background and authorities referred to there (which for brevity I shall not repeat), I import them into this decision as follows:
"To summarise the principles which emerge from these cases with relevance to the interpretation of the Constitution in the present application, this Court must –
(1) first pay proper attention to the words actually used in context;
(2) avoid doing so literally or rigidly;
(3) look also at the whole Constitution;
(4) consider further the background circumstances when the Constitution was granted in 1875;
(5) bear in mind established principles of international laws [not relevant here];
(6) finally, be flexible to allow for changing circumstances."
Since then there has also been the case of Touliki Trading Enterprises Ltd v Fakafanua [1995] Tonga LR 8; [1996] Tonga LR 145 (CA). Although Tu'itavake and the other cases were considered by the Supreme Court in that case, the principles set out above were not changed by it; Lewis J also referred at p 32 to the subsequent case of Attorney-General of Trinidad & Tobago v Whiteman [1991] 2 AC 240, 247 (PC), where (although not referred to in argument before me) there is the following passage of relevance:
"The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights."
Dr Harrison also referred the Court to what was said by the Privy Council in London in Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620, 628 (PC):
"14. The appellant submitted that article 17(2) is a derogation from the constitutional guarantee contained in article 17(1), and that it must consequently be narrowly construed. Their Lordships agree; the many authorities in which the principle has been stated are too well known to require citation. But it must not be pushed so far that narrow construction becomes misconstruction. Due regard must always be paid to the language and purpose of the constitutional provision. As Lord Bingham of Cornhill observed in Reyes v The Queen [2002] UKPC 11; [2002] 2 AC 235,246, para 26 (PC):
"As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution ... "
If the court indulges itself by straining the language of the constitution to accord with its own subjective moral values then, as Holmes J said almost a century ago in his first opinion for the Supreme Court of the United States (Otis v Parker [1903] USSC 15; (1903) 187 US 606, 609):
"a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions ... " "
The passage then continues with the passages already cited (at page 7 above).
The minority view in that case (at p 638) of Lord Nicholls of Birkenhead and Lord Hope of Craighead is also of relevance:
"It should never be forgotten that courts are the guardians of constitutional rights. A vitally important function of courts is to interpret constitutional provisions conferring rights with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford. Provisos derogating from the scope of guaranteed rights are to be read restrictively. In the ordinary course they are to be given "strict and narrow, rather than broad, constructions": see The State v Petrus [1985] LRC (Const) 699, 720D-F, per Aguda JA in the Court of Appeal of Botswana, applied by their Lordships' Board in R v Hughes [2002] UKPC 12; [2002] 2 AC 259, 277, para 35 (PC). ... An unambiguous literal interpretation should give way to a narrower purposive interpretation when it is sufficiently clear this would accord better with the intended purpose of the exception."
There is also some guidance in Hinds v The Queen [1976] 1 All ER 353, 359 (PC), referred to by Mr Radich in his submissions about the supremacy of the legislature, where the Privy Council in London said:
"A written constitution, like any other written instrument affecting legal rights or obligations, falls to be construed in the light of the subject-matter and of the surrounding circumstances with reference to which it was made. ...
In seeking to apply to the interpretation of the Constitution [of Jamaica] what has been said in particular cases about other constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the constitution and the circumstances in which it has been made. ...
Nevertheless all these constitutions have two things in common which have an important bearing on their interpretation. They differ fundamentally in their nature from ordinary legislation passed by the parliament of a sovereign state. They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future. ...
... To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their Lordships' view, be misleading ... ."
and in the minority opinion of Viscount Dilhorne and Lord Fraser in Hinds at 380:
"A written constitution must be construed like any other written document. It must be construed to give effect to the intentions of those who made and agreed to it and those intentions are expressed in or to be deduced from the terms of the constitution itself and not from any preconceived ideas as to what such a constitution should or should not contain. It must not be construed as if it was partly written and partly not. We agree that such constitutions differ from ordinary legislation and this fact should lead to even greater reluctance to imply something not expressed. While we recognise that an inference may be drawn from the express provisions of a constitution (see Attorney General for Australia v R & Boilermakers' Society of Australia per Viscount Simonds [1957] 2 All ER 45,51 (PC)) we do not agree that on the adoption of a constitution a great deal is left to necessary implication. If this were so, a written constitution would largely fail to achieve its object. If it does not define clearly what parliament can do and cannot do by ordinary enactment, then the government and parliament ... may find that as a result of judicial decision after a considerable lapse of time all the time spent in legislating has been wasted and that laws urgently required have not been validly enacted."
So I consider that the Court should adhere to the 5 principles as summarised in Tu'itavake v Porter, but adding as para (1A) that it must not construe the Constitution as partly written and partly not; expanding para (2) to add that it applies especially for the protection of human rights; inserting as para (2A) that any derogation is to be narrowly construed, but not so narrowly as to amount to misconstruction; and inserting as para (2B) that the court must beware of imposing the judge's own values.
Position of the legislature
The main thrust of the submissions by Mr Radich for the defendant was that the legislature is supreme and can amend the Constitution if and as it so wishes -but that is not the complete picture for Tonga.
The Court of Appeal in Minister of Police v Moala (which was primarily concerned with clause 70 of the Constitution relating to contempt of the Legislative Assembly) also stated (at 212-4):
"But the position in Tonga is not at all the same [as the UK or Australia]. The Legislative Assembly is not the beneficiary of what Baron Parke, in Kielley v Carson [1842] EngR 593; [1842] 4 Moore PC 63 at 91 (13 EH 225 at 236), described as "the peculiar powers of Parliament", powers which are a result of an historical process in the distant past and, his Lordship thought, "ought not ... to be extended any further". ... Rather than leave the powers of the Legislative Assembly to common law, or implication, or ... to a general grant of the powers of the United Kingdom House of Commons, the Constitution of Tonga has chosen to confer specific and limited powers, which are contained in clause 70.
As was pointed out by Martin J and by the Privy Council in Fotofili v Siale [1987] TOPC 2; [1987] SPLR 339, the definition by the Tongan Constitution of the powers and privileges of the Legislative Assembly makes all the difference. Those powers and privileges are not at large, and whether the occasion for their exercise has arisen must depend on a true understanding of the Constitution. The Privy Council accepted (at 348) that "when a matter is a 'proceeding' of the House beginning and terminating within its own walls it is outside the jurisdiction of the courts". But it added (at 349-350) the significant statement:
"[I]n determining its jurisdiction to inquire into internal proceedings of the Assembly [the Court] must apply the English common law regarding the privilege of Parliament to determine the regularity of its own proceedings, provided of course the Assembly has not acted contrary to the provisions of the Constitution in the course of those proceedings, for in such a case the Court is given jurisdiction by Article 90 of the Constitution..."
We conclude then that there is no jurisdiction in the Court to inquire into the validity of the Assembly's internal proceedings where there has been no breach of the Constitution.
......
By the Constitution, the jurisdiction to determine its meaning and application has been conferred on the Supreme Court, and an "exclusive power and jurisdiction to hear and determine all appeals ... from the Supreme Court" has been conferred on the Court of Appeal. See clauses 90 and 92. Relevantly for present purposes, clause 90 provides:
"The Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom".
The words "in Law and Equity" do not limit the width of the conferral of power in all cases arising under the constitution, for those words are words of extension, not of limitation: cf Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 383; Commissioner of Taxation of the Commonwealth of Australia v Lutovi Investments Proprietary Limited [1978] HCA 55; (1978) 140 CLR 434, 443-444. In Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214, 233 "law" and "equity" were treated, in the joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ, as comprehending the entire spectrum of legal jurisdiction. It is interesting to compare the direct conferral of jurisdiction on the Supreme Court by clause 90 of the Constitution of Tonga with the indirect conferral of jurisdiction on the High Court of Australia under s 76 of the Australian Constitution ...
The Tongan position, as distinct from that in England and that under s 49 of the Constitution of the Commonwealth of Australia, which assimilates the Australian Parliament to the English House of Commons, is well illustrated by the New South Wales case Armstrong v Budd (1969) 71 SR (NSW) 386, where Herron CJ said (at 398):
"[T]his Court [the Supreme Court of New South Wales] has a jurisdiction to determine whether in a particular case the House [he was referring to the Legislative Council, one of the Houses of Parliament of New South Wales] has exceeded the powers conferred on it by the Constitution. ... "
The effect of a written constitution, in curtailing the very wide parliamentary powers and privileges that have been conceded to the House of Commons in the United Kingdom, has been repeatedly affirmed by the highest courts of countries that have written constitutions. ... "
The Court was referred by Mr Radich for the defendant on the matter of parliamentary sovereignty to Bribery Commissioner v Ranasinghe [1964] UKPC 1; [1964] 2 All ER 785 (PC); and also to Hinds v The Queen [1976] 1 All ER 353 (PC). But in the context of the Tongan Constitution I did not find that these cases supported his submissions for total supremacy of the legislature. Rather they supported the position, set out above, taken by the Court of Appeal in Tonga in Minister of Police v Moala, which of course binds this Court in this case, that the powers of the legislature of Tonga are not at large but are circumscribed by the written Constitution of Tonga.
Mr Radich also referred to Attorney-General v Trethowan [1932] UKPC 1; [1932] AC 526 (PC) 539-40, where the Privy Council in London found that, as the requirement of the Constitution of New South Wales had not been met, Bills abolishing the Legislative Council and amending the Constitution were therefore ultra vires the Constitution and invalid. Again that supports the position stated in Minister of Police v Moala. The Privy Council in London stated:
"Reading the section as a whole, it gives to the legislature of New South Wales certain powers, subject to this, that in respect of some laws they can only become effectual provided they have been passed in such manner and form as may from time to time be required by any Act still on the statute book."
In Ranasinghe at 792 the Privy Council in London said:
" ... a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether that the legislature is sovereign ... , or whether the constitution is "uncontrolled" ... . Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that the legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process."
Dr Harrison for the plaintiffs referred to the case of McCawley v The King [1920] AC 691 (PC), from a well known passage in which the Privy Council in Ranasinghe took the initial part of the passage quoted above, but beyond that I did not consider McCawley directly in point or helpful.
Then in Hinds at 360-361 the Privy Council in London said:
"In the result there can be discerned in all those constitutions which have their origin in an Act of the Imperial Parliament at Westminster or in an Order in Council, a common pattern and style of draftsmanship which may conveniently be described as 'the Westminster model'.
The more recent constitutions on the Westminster model, unlike their earlier prototypes, include a chapter dealing with fundamental rights and freedoms. The provisions of this chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the constitution for this purpose, imposed a fetter on the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers. ...
One final general observation: where, as in the instant case, a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the constitution provides machinery whereby any of its provisions, whether relating to fundamental rights and freedoms or to the structure of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the parliament acting by specified majorities, which is generally all that is required, though exceptionally as respects some provisions the alteration may be subject also to confirmation by a direct vote of the majority of the people themselves. The purpose served by this machinery for 'entrenchment' is to ensure that those provisions which were regarded as important safeguards by the political parties ... , minority and majority alike, who took part in the negotiations which led to the constitution, should not be altered without mature consideration by the parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws. So in deciding whether any provisions of a law passed by the Parliament ... as an ordinary law are inconsistent with the constitution ... , neither the courts ... nor their Lordships' Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the constitution and so can be validly passed only after the constitution has been amended by the method laid down by it for altering that entrenched provision."
It was also notable that in reaching its decision, the Privy Council in Hinds had regard to what it described as the manifest intention of the constitution and the provisions under consideration.
There were also other important passages in the minority opinion of Viscount Dilhorne and Lord Fraser in Hinds at 376, which can be quoted briefly:
" ... Certain provisions of the Constitution [of Jamaica] are entrenched, that is to say, they can only be altered or repealed or amended by Parliament if special procedures laid down in s 49 of the Constitution are followed. ...
That the Parliament ... has power to [create a court ... ] is not open to doubt, but if any of the provisions doing so conflict with the Constitution in its present form, then it could only do so effectively if the Constitution was first amended so as to secure that there ceased to be any inconsistency between the provisions and the Constitution. The Constitution does not prescribe that any special procedure has to be laid down for the valid enactment of a Bill to which s 50 (see below) does not apply which conflicts with the Constitution. It requires that a special procedure shall be followed for the amendment of the Constitution."
In relation to this case and the question of whether the Constitution has been validly amended, the principles which I draw from those cases are:
(A) that a constitution can be altered or amended by the legislature in so far as the constitution itself provides, and so long as the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions stipulating how such amendments are to be done;
(B) a provision conflicting with a specifically protected provision (ie an entrenched provision) in a constitution can be validly passed only after the constitution has been amended by the method laid down by it for altering that entrenched provision;
(C) logically and juridically principle (B) must also apply to provisions purporting to amend the constitution itself;
(D) principle (B) applies also to provisions about fundamental rights and freedoms, which form part of the substantive law and, until amended by whatever special procedure is laid down, impose a fetter on the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers;
(E) in deciding whether any provisions of a law passed by the legislature as an ordinary law are inconsistent with the constitution, the court is not concerned with the propriety or expediency of the law impugned, it is concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the constitution and so can be validly passed only after the constitution has been amended as in (B) above.
Entrenching provisions in the Constitution
As indicated at page 4 above, the Constitution of Tonga contains at Clause 79 a procedure for amendment of provisions of the Constitution, which provides a type of entrenchment in that as a proviso it states "provided that such amendments shall not affect the law of liberty the succession to the Throne and the titles and hereditary estates of the nobles".
Applying the principles already stated, I interpret those words to mean what they say, ie that those particular provisions cannot be amended except within the terms of the Constitution while those words stand in Clause 79. As Dr Harrison submitted in relation to the other parts of the entrenching provision in Clause 79 – ie "provided that such amendments shall not affect ... the succession to the Throne and the titles and hereditary estates of the nobles" -Clause 67 of the Constitution provides:
"Privilege of nobles
67. It shall be lawful for only the nobles of the Legislative Assembly to discuss or vote upon laws relating to the King or the Royal Family or the titles and inheritances of the nobles and after any such bill has been passed three times by a majority of the nobles of the Legislative Assembly it shall be submitted to the King for his sanction."
That shows that it may be possible to amend those other provisions entrenched by Clause 79 provided that the special procedure stipulated by Clause 67 is followed: but in the absence of any special more onerous or lengthy procedure being stipulated for amendment of the law of liberty, the inference is strengthened and reinforced that the law of liberty cannot be amended while the entrenching provision of Clause 79 still stands.
As already mentioned, I believe that it is beyond doubt that the provisions of Clause 7 (which themselves use the word "liberty") fall within "the law of liberty". It was stated by the Court of Appeal in Touliki Trading v Fakafanua [1996] Tonga LR 145, 154 (CA):
"Each of these early clauses of the Constitution is primarily concerned with the implications of the constitutional entrenchment of human liberty."
That is the same position as I believe applies to the other relevant entrenchment in this case, ie the words in Clause 7 itself "and no law shall ever be enacted to restrict this liberty" and that there shall be freedom of speech and of the press "for ever".
The Court of Appeal also stated in Touliki Trading at 152:
"Subject to special provisions concerning the Land Court, cl. 90 of the Constitution confers jurisdiction on the Supreme Court "in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom". ... It is accordingly not in doubt that an Act of the legislature (or an Order-in-Council) may be declared invalid by the Supreme Court, ... if it be found to infringe the Constitution: Fuko v Vaikona [1990] Tonga LR 148, 150-1, citing Minister of Lands v Pangia (Scott J unreported 1932); Fotofili v Siale (Privy Council unreported 3 August 1987 [now [1987] TOPC 2; [1987] SPLR 339, 347-9 (PC), see page 9 above]). In the last case, the Privy Council stated the law: ... [quoting the passage referred to at page 9 above]"
It was stated by the Court of Appeal in Minister of Police v Moala at p 215, referring to Robati v Privileges Standing Committee of the Parliament of the Cook Islands [2001] NZAR 282 (CA):
"[In Robati at 289] Quilliam JA ... held that where Parliament, though claiming to pursue its privilege, acts unconstitutionally, "it must be proper for the Court to intervene". He cited also the remarks of Barwick CJ in the High Court of Australia in Cormack v Cope [(1974) 131 CLR 432] (supra, at 453):
"Whilst it may be true the Court will not 1300 interfere in what I would call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law making is not properly carried out."
and (at 464):
"[T]here is no Parliamentary privilege which can stand in the way of this Court's right and duty to ensure that the constitutionally provided methods of law making are observed."
No sensible reason can be advanced why the Court should be more chary of interfering to prevent a gross excess of Parliament's right to deal with a breach of privilege (reaching beyond its constitutional limits) than of interfering to prevent an irregularity in the procedure for the adoption of a Bill."
I therefore cannot accept that the authorities support the submissions of Mr Radich that the entrenching provisions in Clauses 7 and 79 are of no effect.
To sum up, in Tonga the legislature has supreme power to enact laws but, unlike the Westminster Parliament, as stated by the Court of Appeal in Minister of Police v Moala at 212 that is not an unfettered power because Tonga has a written Constitution, so the legislature can only make laws within the terms of the Constitution and its powers within the Constitution.
The legislature's power to enact laws includes power under Clause 79 of the Constitution to amend the Constitution itself, but only according to the terms of Clause 79, and in particular any restrictions contained in it as to the procedure to be followed and any specially protected provisions, ie entrenched provisions.
Mr Radich submitted for the defendant that the legislature can even amend the words in Clause 79 (and Clause 7) which provide for that protection, ie "provided that such amendments shall not affect the law of liberty ... ". But it is very important in this case that the legislature did not do so and the words protecting the law of liberty still stand, and the Court does not have to decide whether that submission is correct. That would be a very different matter: as Lord Hoffmann said in R v Home Secretary ex p Simms [1999] UKHL 33; [1999] 3 All ER 400, 412 (HL):
"The constraints upon its exercise by Parliament [of the power to legislate contrary to fundamental principles of human rights] are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
Possibility of repeal by implication
Mr Radich cited two English cases in relation to implied repeal, Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733 (KBD) and Ellen St Estates Ltd v Minister of Health [1934] 1 KB 590 (CA), but I did not find them either particularly relevant or helpful. They say little more than is provided by section 16 of the Interpretation Act of Tonga:
"Repeal by implication.
16. Whenever any Act is passed which contains provisions irreconcilable with but does not expressly repeal an existing Act, then the provisions in such existing Act which are irreconcilable with the provisions of the new Act shall be held to be impliedly repealed."
but that applies to Acts of the Legislative Assembly, not to the Constitution. As Dr Harrison submitted in reply, those cases were not concerned with superior law constitutions, nor with express attempts to bind a future legislature, even as to manner and form.
Repeal by implication is not favoured by the courts, for it is to be presumed that the legislature would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so:
"Repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments in the statute-book, or, on the other hand, to effect so important to measure as the repeal of the law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention." R v Halliday [1917] UKHL 1; [1917] AC 260 at 305
The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done. (Halsbury's Laws (4th Ed) Vol 44 para 966)
The principle of implied repeal and amendment has been applied to enactments which are inconsistent with a controlled constitution; but only if the constitutional requirements are complied with in relation to the inconsistent enactment is the constitution is amended: see Kariapper v Wijesinha [1967] 3 All ER 485 (PC) at 494 and 495; Halsbury's Laws (4th Ed) Vol 44 para 966 Note 5, where, having considered 1390 the cases of McCawley and Ranasinghe already referred to, it was stated by the Privy Council in London:
"Accordingly, therefore, on general principles and with the guidance of the earlier authority, their Lordships have come to the conclusion that the act, inconsistent as it is with the constitution [of Ceylon], is to be regarded as amending that constitution unless there is to be found in the constitutional restrictions imposed on the power of amendment some provision which denies it constitutional effect. ........
In the course of argument, a good deal was made of the doubts and complexities that must follow if the constitution can be amended by laws which do not, as it were, show their colours, and the point was forcibly emphasised by reference to the very law under consideration. The Board is thoroughly aware of the difficulties that are likely to result from altering the constitution except by laws which plainly and expressly amend it with particularity. Considerations of this sort, powerful as they ought to be with the draftsman, cannot in a court of law weigh against the considerations which have brought the Board to its conclusions that a bill, which on its passage into law would amend the constitution, is the bill for its amendment."
In Petition of The Earl of Antrim & 11 Other Irish Peers [1967] 1 AC 691 at 724 Lord Wilberforce said:
"I confess to some reluctance to holding that an Act of such constitutional significance as the Union with Ireland Act is subject to the doctrine of implied repeal or of obsolescence – all the more when these effects are claimed to result from later legislation which could have brought them about by specific enactment."
I share the reluctance of Lord Wilberforce. The Court cannot consider that the words of protection, ie the entrenching provisions, have been impliedly repealed by the passing by the legislature of the purported amendments to Clause 7 in 2003 or earlier, or the unchallenged amendments to other clauses falling within the entrenching provisions. Although mentioned for the defendant, any inference to be drawn from the passing of the 2 subsequent Acts (the Media Operators Act 2003 and the Newspaper Act 2003) was not strongly argued and in any event, as stated in Hinds, an Act which has not been passed in accordance with the entrenching provisions (ie the full procedure in Clause 79, by being submitted to the King after being passed by the Legislative Assembly 3 times and to the Privy Council and Cabinet, who were unanimously in favour of it) cannot achieve an amendment to the written Constitution.
Even although Clause 7 was previously amended in 1990 when official secrets was added to the list of exceptions, I consider that falls within the recognised exceptions to freedom of expression, as explained at pages 28-31 below.
In any event I do not accept that there could be an implied repeal. Quite simply the constitutional requirements were not complied with in relation to the allegedly inconsistent enactment, so it must be denied constitutional effect to the extent that it conflicts or is inconsistent with Clauses 7 and/or 79. The law of liberty is of such importance in the framework of the whole Constitution and the laws of Tonga as a whole that its constitutional protection cannot be amended simply by implication: any amendment to the protection for the law of liberty given in Clause 79 and in Clause 7 itself would have to be done directly and openly, not by a side wind, as it were.
Protected (ie entrenched) provisions
However in addition to the unique nature of the challenge to the purported amendments to the Constitution, the difficult and unusual position with which the Court is faced in this case is that the amendments to Clause 7 in the Constitution Amendment Act of 2003 appear or purport to make amendments which may "affect the law of liberty" without having removed, altered or amended the entrenching words in either Clause 7 itself or in Clause 79.
So the Court has to look at the purported amendments to Clause 7 and consider whether they conflict with the entrenched freedoms, as entrenched and conferred by that clause in its previous form. Those entrenched freedoms are part of the law of liberty in the Declaration of Rights which forms Part I of the Constitution, which must be given a wide meaning in the context of the conferment of the Constitution by King George Tupou I in 1875 and its adoption by Parliament at that time.
I was unable to accept the submissions by Dr Harrison for the plaintiffs that due to the entrenching provisions of Clauses 7 and 79 the amendments to Clause 7 were in effect automatically void on an all or nothing basis.
Context of the 1875 Constitution
There is a great deal of material and information showing the context in which the Constitution was adopted in 1875.
The Court was referred to Dr Sione Latukefu's book "The Tongan Constitution – A brief history to celebrate its centenary", pages 20-34 of which were mentioned in the Touliki Trading decision in the Court of Appeal, which in turn was referred to by the Court of Appeal in its Lali Media decision. There are many relevant references in those pages to the context of the Constitution, but for brevity I shall refer to them rather than set them all out in detail.
At page 20 it is clear that by the 1830s King George Tupou recognised that much of Tongan customary law was incompatible with Christianity, so there was a need for a new legal machinery better suited to the country's changing needs and aspirations; and this first venture into legislation, culminating in the Vava'u Code of 1839, was heavily influenced by missionary teaching.
Some years later the King sought further advice, as described at pages 23-4, from 'the highest English legal authority in New Zealand on the matter' and was advised to adopt a Code of Laws similar to the Society Islands Laws, making any modifications necessary to suit local conditions. The eventual success of these codes can be attributed to the fact that the final decisions were taken by the Tongans (page 27).
Then the King turned to trying to secure the recognition of Tonga by the Western powers and in the 1850s he concentrated on improving the country's legal system (pages 28-29). The King sought more help and Sir George Grey, Governor of New Zealand, exhibited much interest in the affairs of Tonga, and an intimate friendship developed between him and the King, to whom he offered advice on various matters (pages 29-30). At the instigation of the missionaries, King George decided to visit New South Wales towards the end of 1853, in order to see how the people of civilised countries lived and managed their affairs. After his return from Sydney, King George received several letters from Mr Charles St Julian, a law reporter for the Sydney Morning Herald, who was also Hawaiian Consul in Sydney, with suggestions that the King should take steps to secure formal recognition of his independence by foreign powers, and that he should establish a constitutional government. A copy of the Constitution adopted by Hawaii at that time was also presented to the King.
Subsequently the King himself was at the receiving end of criticism in the Press (page 31):
"The King's apparent lack of enthusiasm for the reforms which St Julian believed were needed in Tonga, led the latter to publish an article in the Sydney Morning Herald on 9 January 1858, alleging among other things that King George's 'government of his own islands is totally inefficient except for the wants of the merest savages, and, with the true feeling of a semi-barbaric chief, he obstinately resists all improvement.' When this article was challenged by the General Secretary of Methodist Overseas Missions, St Julian defended his allegation that King George's Government was inefficient:
I am unable to deny its truth, [he wrote] when I remember that the Tonguese laws, imperfect as they are, are administered by chiefs who divide among themselves, by way of remuneration for their trouble, the fines and labour of those whom they convict and when I remember too that they have proved powerless for the enforcement of some of the simplest contracts known to civilised men -That King George having brought his governmental system to its present condition and hitherto expressed the strongest disinclination to make such further improvements as would fit his state for the duties imposed on civilised governments and justify its admission within the pale of internationality ... [he] must have an organised government, and an effective code of Laws impartially administered, but relieve the lower orders from the exactions of chiefdom, must encourage industrial improvement, but give up his local preachership and stand neutral between all sects and classes of his subjects."
There was good international reaction from countries such as England and Australia after promulgation of the 1862 Code of Laws, which was heartening to the King, who wished to gain the recognition of the world at large for his Government (page 37). So by the 1870s, the attitudes of the Europeans, together with the growing international rivalry in the Pacific, drove home to King George more forcefully than ever before the urgent need for international recognition of his Government if the independent sovereignty of Tonga was to be maintained. These events must have reminded the King of St Julian's advice that permanent independence could only be assured through the establishment of a good and efficient constitutional government. Interestingly in the context of the present case, St Julian had also argued that it was essential for good government that:
"Such fundamental principles should be laid down as would form what is termed a constitution and all subsequent legislation should be in strict accordance with these principles."
The King felt that the 1862 Code did not go far enough and that it was time for a full constitution (pages 39-40).
The framing of the Constitution, during which Baker evidently used the Press to explain it, was described by Dr Latukefu at pages 40-41. Baker sought advice and assistance from the Premier of New South Wales, Sir Henry Parkes, who gave him a copy of all the laws of the Government of New South Wales since its inception. These laws, together with the copy of the 1852 Constitution of Hawaii, enabled Baker to compile a draft constitution for King George who, as he had done with the earlier codes, considered and altered it according to what he believed most suitable for his country. As Dr Latukefu explains:
"Between March and September 1875 Baker used the issues of the monthly Koe Boobooi which he edited to explain to the people the nature of a constitution. He compared it to the Bible, which he said was 'the book which explains our spiritual freedom, the things we should do and the things we should not ... in particular the way in which the church should be governed, and what is to be done in the church ...' The constitution on the other hand, he argued, was 'the Book of freedom and the method by which the country is governed ... the testament of our freedom to the people of the country, and a testament of how they should be ruled.' Both Baker and the King saw the constitution as a magic wand which would solve most if not all internal problems and protect Tonga from external threats."
Dr Latukefu also records part of King George Tupou's well known speech at the opening of Parliament (page 41):
"The Constitution was presented for discussion in the Parliament which was opened on 16 September 1875 and, on this occasion, King George made an admirable and moving speech in which he referred to the draft Constitution:
You are called upon to meet and deliberate on the new work to be done by the Government, to pass the Constitution, and to govern the land and to have the law of the country in accordance with it. The form of our Government in the days past was that my rule was absolute, and that my wish was law and that I chose who should belong to the Parliament and that I could please myself to create chiefs and alter titles. But that, it appears to me, was a sign of darkness and now a new era has come to Tonga -an era of light - it is my wish to grant a Constitution and to carry on my duties in accordance with it and those that come after me shall do the same and the Constitution shall be as a firm rock in Tonga for ever. When the Constitution has been passed it shall be a palladium of Freedom to all Tongans for ever. It is quite clear now that they are free; and let this be the most valuable privilege of the Country, for by the passing of the Constitution a Tongan can boast that he is as free as were the Romans of former days, as the British are now."
Once again the Press was used for publication of the full text of the Constitution; and Dr Latukefu quotes part of the King's closing speech (pages 41-2):
"The full text of the Constitution was published in Tongan for the public as a supplement to the September issue of Koe Boobooi. The Parliament passed the Constitution with minor amendments and, in closing the Parliament on 4 November 1875, King George gave a speech in which he said:
Let this day, the 4th November, be a day of rejoicing and commemoration for the people of Tonga forever. I am grateful to you, the representatives of this parliament, because of your eagerness in the work to which you have been called to carry out. I am also thankful because of your glad acceptance of the Constitution – because the majority of you agreed that it should become the Law of the Land. And you who have disagreed, let the day soon come when you will realize that the Constitution established by the Parliament is the greatest possession of our country ... And now, here is the Constitution of Tonga, written on parchment, to be kept in the Parliament of Tonga, a document to commemorate and to testify to the work that we are doing today. This day I have added my name to it and so it becomes the Law of Tonga. May you and your descendants, you the people of Tonga be blessed now and for ever while you follow the Constitution. May the day never dawn for Tonga when someone, or anyone, will alter the basic principles of the Constitution. Let it become the Foundation stone of our country for ever ... May each of you inscribe on your hearts:-
"Tonga for the Tongans." If Tonga will remain as it is now, I will not say that it is because of our intelligence or our knowledge or whatever it is we can do, but only because we are with God. As I have said before I will say again, "Tonga is dedicated to God.""
Finally Dr Latukefu emphasises the context of the Constitution and the derivation of its Declaration of Rights at pages 43-44:
"Evidently the Constitution was a major innovation on the King's part, and the principal motives which actuated him to make such a move were dear: to maintain Tonga's independence by gaining recognition for it from the great powers; and to ensure its future internal stability and integrity, particularly after his death. However, this memorable document ought not to be viewed in isolation, for it marked the culmination of progressive attempts by King George to achieve acceptable, Christian, civilised legislation for Tonga.
...
The Declaration of Rights [in the Constitution] consisted of 32 articles. It contained the usual safeguards, following very closely those of the Hawaiian Constitution of 1852. ... "
I was also referred by Dr Harrison to extracts from "Island Kingdom – Tonga Ancient and Modern" (Revised 2nd Ed 2001) by I C Campbell, which at pages 9–10, 88-89, 97-98 and 99 largely corroborate Dr Latukefu's account, eg:
"But St Julian evidently expected an immediate endorsement of .his work and, when he did not see it, published a bitterly hostile letter in the Sydney Morning Herald, alleging misgovernment, inefficiency and corruption in Tonga, and particularly condemning the king's alleged stubbornness in refusing to make improvements." (page 89)
"Modern government, in other words, was to be Tonga's safeguard against a foreign takeover." (page 98)
"The assembly made laws, but they became valid only on receiving royal assent. The assembly, again with the king's consent, could also amend the constitution, but the procedure was such as to ensure that any amendment would be protracted and carefully considered. In short, a proposed amendment had to be passed by the Legislative Assembly twice, in different sessions, which were held annually." (pages 98-99)
"The constitution was thus a very radical innovation: it abolished what had remained of traditional chieftainship; it brought royalty under its control; it made future political change dependent on the interpretation of the rules in the document itself; and it preserved in the hands of the King a very large share of power. Indeed, it may be said that it completed the transition from chieftainship to kingship, or from chieftaincy to kingdom. But the prime intention was to turn aside foreign criticism and avert confrontations that might cause Tonga to lose its independence. The guarantees of freedom given to the Tongans therefore were a means of satisfying foreigners rather than an objective in themselves - and, as contemporary critics remarked, the document was beyond the understanding and the needs of the Tongans themselves at the time." (page 99)
There was also the affidavit for the defendant of Dr 'Ana M Taufe'ulungaki, Director of the Institute of Education of Suva, in which she stated that the concept of freedom of speech in the Tongan Constitution and its application within Tongan society are governed by codes of appropriate behaviour or poto within the Tongan socio-cultural context. Although tendered as expert evidence, Dr Taufe'ulungaki made it clear that her qualifications are a Doctorate in English from the University of Birmingham and a Masters degree in education from the University of Leeds; that although Tongan by birth she has spent a considerable portion of her academic career working abroad; and there was no indication that she had any qualifications or experience in either history or law. Although she described herself as an expert on education in the Pacific and on Tongan culture, there was a lack of information as to exactly why she felt entitled to describe herself as an expert on Tongan culture, so I was unable to accept her as such. As indicated above, in the relevant circumstances of the adoption of the Tongan Constitution in 1875, the expertise which is likely to be of assistance to the Court is that of a historian or possibly a lawyer experienced in the field.
A considerable part of Dr Taufe'ulungaki's affidavit was about education, which I could not see as relevant to the issue before the Court. There was also another section headed 'Legal Systems', which in fact seemed to be more about sociology and politics than legal systems, but in any event which I was unable to accept as Dr Taufe'ulungaki patently does not have the expertise to give expert evidence on legal systems. I was therefore unable to accept Dr Taufe'ulungaki's conclusion, which did not appear to follow from or be developed from the preceding material in the affidavit – and which did not accord with the historical accounts given above (which I did accept).
Her conclusion was that the Tongan Constitution was formulated and developed for the socio-cultural context of the Tongan people, and, although much of it was borrowed from western legal systems and frameworks, it was and is underpinned by the fundamental values of the Tongan people, which are aimed at maintaining, enhancing and promoting group cohesion and relationships. Even if the first part of that were correct – which is not borne out by the historical extracts quoted above, as I believe that it is undisputed that context when the Constitution was adopted in 1875 was that that was done to reassure the Western powers and prevent them colonising or annexing Tonga, in which it succeeded. I therefore consider that the freedoms in Part I have to be understood in a Western sense and not in the Tongan sense propounded by Dr Taufe'ulungaki: the whole historical context contradicts her unsupported assertion that in 1875 the Constitution was adopted on the basis that it was underpinned (ie propped or supported) by the fundamental values of the Tongan people.
It is clear from Dr Latukefu's book that there was a Press in Tonga at that time, and indeed King George Tupou I and Baker themselves used it to publish information in Koe Boobooi about the new Constitution and then to publish the text of it there; and that the King must have been aware of the possible consequences of freedom of the Press as he had previously been subjected to a strong and rude attack by St Julian in the Sydney Morning Herald (as also stated by Mr Campbell in his book).
But even if Dr Taufe'ulungaki is an expert on Tongan culture, I accepted the submissions by Dr Harrison for the plaintiffs that, in terms of the authorities on interpreting a constitution, Tongan culture is not a relevant factor, except of course to any extent that it formed part of the context when the Constitution was adopted in 1875. In support of that position, I also noted that there is no mention of Tongan culture in the Constitution, nor in the Interpretation Act nor the Civil Law Act, except in section 4(b), which refers to the application of the common law of England and the rules of equity only so far as the circumstances of the Kingdom and of its inhabitants permit and subject to such qualifications as local circumstances render necessary. Nor is there even any suggestion in the many previous cases before the courts of Tonga to which I have been referred where interpretation of the Constitution has been considered that (apart again from the background circumstances when the Constitution was granted in 1875) Tongan culture or custom was a relevant factor.
Even in the Land Act (Cap 132) section 146(3) simply provides:
"(3) The duties of the assessor shall be to assist the Judge with explanation and advice in regard to Tongan usages and customs and other matters of a similar nature."
Nor am I able to accept that freedom of speech is simply a Western notion, as I believe it is now a principle accepted or valued in many places throughout the world: one has only to look at countries where it is an issue to see that now it is no longer espoused by Western people alone.
Context of amendments in 2003
In the same way that the context in which the original Constitution was adopted in 1875 is relevant to its interpretation, I considered that the context in which these amendments were adopted in 2003 may be relevant.
The context was explained in Mrs Fusitu'a's affidavit:
"4. In the 1990's, the media in Tonga became a more prominent force in society. As a consequence of increasing concern with the standard of media performance, the Government had been considering how the newspaper industry might be better regulated in order to preserve a balance between the right to fair comment and the public's right to be honestly informed through credible and ethical journalism.
5. Broadcasting standards for television and radio in Tonga had been provided for through the Broadcasting Act 1989. In 2000, the Broadcasting Act was replaced by the Communications Act 2000, which established the Department of Communications and gave that Department powers to regulate and license television and radio operators and to promulgate standards for the content of their programmes.
6. The Government continued to work with the private newspaper industry to improve the standard of media for Tonga. This included trying to form Tonga's first Newspaper Association, which eventually failed.
7. The lack of self-regulation and standard setting within the newspaper industry together with complaints and pressures from the public was placing a burden on the Government to take steps to protect public freedoms and Tongan customary law in the face of unsubstantiated and unattributed single source statements in numerous articles. The concerns were widespread; throughout Government, businesses and individuals.
8. Ultimately, the amendment to clause 7 of the Tongan Constitution was based upon similar provisions in Singapore, with assistance from relevant provisions in the Constitutions of other countries.
9. The attempts to work with the media so that it may set standards and regulate itself continuously failed. As a last resort, it was proposed to prepare legislation that would enable the Government to set journalistic standards, if necessary. Since that legislation was passed, a Media Council has been officially established by the media industry and standards have been produced by that Council.
.....
11. As is evident from that diagram [referred to in para 10 and outlining the legislative process], before proposed legislation enters the Legislative Assembly, it must first pass through His Majesty's Cabinet and His Majesty's privy Council for their approval. This requirement means that His Majesty and all Cabinet Ministers are aware of legislation proposed and of any related proposed legislation before votes are cast in the Legislative Assembly and before His Majesty assents to any legislation. The suite of media reforms that I discuss in this affidavit were no different in this regard. On 28 and 30 May 2003 His Majesty's Cabinet approved the processing and tabling of three pieces of legislation relating to regulation of the media, those pieces of legislation being the Act of the Constitution of Tonga (Amendment) Bill 2003; the Media Operators Bill 2003 and the Newspaper Bill 2003."
With reference to Para 7, I noted the authority of the Privy Council in London in Hector v Attorney-General of Antigua [1990] 2 All ER 103, 106 (PC) that:
" ... it would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based."
A further part of that context in 2003 was that the Government had enacted various pieces of legislation which had the effect of placing certain restrictions on the freedom of the Press, such as an Order-in Council prohibiting the importation of Taimi 'o Tonga newspaper; and the Protection from Abuse of Press Freedom Ordinance 2003 (the long title of which was An Ordinance for The Protection of The King, Royal family, Government and People of this Kingdom from Abuse of Press Freedom; but which specifically referred to Taimi 'o Tonga and Lali Media). The previous Chief Justice had found (on 4 April and 26 May 2003 respectively) that both these pieces of legislation were invalid and unconstitutional, decisions upheld subsequently by the Court of Appeal on 25 July 2003. The previous Chief Justice had further on 26 May 2003 made an interim order restraining the Government from revoking under the Media Operators Ordinance 2003 (the long title of which was An Ordinance for The Imposing of Restrictions on Ownership of Licence by Media Operators in the Kingdom) any licence held by Lali Media, which was made an injunctive order on 9 June 2003. The previous Chief Justice had also on 4 April 2003 held that the long-standing section 3 of the Prohibited Publications Act (Cap 54) was invalid and unconstitutional, which again was subsequently upheld by the Court of Appeal on 25 July 2003.
I considered that that context could be interpreted in 2 ways, either as a determination by the Government to press on with its policy, in the face of the previous Chief Justice's rulings, by amending the Constitution to enable it to proceed with the policy regardless; or by acceptance of the previous Chief Justice's rulings and an intention (although clumsily put into action) to abide by them and proceed with the policy in a proper constitutional manner under the Constitution. The second view is indeed given some credence by the fact that it is within judicial knowledge that the civil action by Lali Media in consequence of the 2003 events was settled out of court by the parties on undisclosed terms before it came to a hearing in June 2004.
But the facts set out above and the affidavits in this case, plus the limited amount of oral evidence I heard, provided no evidential basis for reaching a view on which, if either, interpretation is correct, so I find the 2003 context to be neutral and not of any particular help in relation to consideration of the amendments to the Constitution. I therefore rely on the words of the amendments alone, together with the other factors on constitutional interpretation summarised in Tu'itavake and other authorities as already mentioned.
I should add that I did not find it necessary to refer to the affidavit evidence in the previous Lali Media cases in 2003, as these were given essentially with reference to the position prior to the purported amendments to the Constitution and the passing of the other 2 Acts, and I did not consider them to be relevant to the very limited consideration carried out above.
Freedoms not absolute
As already mentioned it was accepted that freedom of speech and freedom of the Press are not absolute, as indicated in the authorities discussed. Dr Harrison submitted, and I accept, that the critical difference of view between the 2 parties related to the nature of any inherent limitations on these freedoms, over and above the 3 express exceptions in Clause 7; and the ability or inability of the legislature to enact limitations on them.
Dr Harrison referred to Derbyshire CC v Times Newspapers Ltd [1992] UKHL 6; [1993] 1 All ER 1011 (HL) at 1020 where Lord Keith said, with reference to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which he first quoted:
" "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
As regards the words "necessary in a democratic society" [in Article 10 of the European Convention of Human Rights] in connection with the restrictions on the right to freedom of expression which may properly be prescribed by law, the jurisprudence of the European Court of Human Rights has established that "necessary" requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate to the legitimate aim pursued. ......
My Lords, I have reached my conclusion upon the common law of England without finding any need to rely upon the European Convention. My noble and learned friend, Lord Goff of Chieveley, in Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545 (HL) at 660-1, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the subject and article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field."
Dr Harrison also referred to R v Home Secretary ex p Simms [1999] UKHL 33; [1999] 3 All ER 400 (HL) at 407, where Lord Steyn repeated that:
"The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. Nevertheless, freedom of expression is not an absolute right. Sometimes it must yield to other cogent social interests. ...
In Attorney-General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; [1988] 3 All ER 545 (HL) at 660-1, Lord Goff of Chieveley expressed the opinion that in the field of freedom of speech there was in principle no difference between English law on the subject and article 10 of the [European Human Rights] Convention. ... I would respectfully follow the guidance of Lord Goff of Chieveley and Lord Keith of Kinkel [in Derbyshire CC].
Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market:" Abrams v United States [1919] USSC 206; (1919) 250 US 616,630 per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country ...
The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil."
Dr Harrison also referred to the Pentagon Papers case (New York Times Co v United States [1971] USSC 145; 403 US 713, 91 SCt 2140, 29 L Ed 2d 822 (1971), where the US Supreme Court said in relation to the First Amendment (which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press, ...") that:
"Any system of prior restraints of expression comes to the US Supreme Court bearing a heavy presumption against its constitutional validity, and a party who seeks to have such a restraint upheld thus carries a heavy burden of showing justification for the imposition of such a restraint."
although in a dissenting judgment the well-known Chief Justice Warren Burger said:
"In these cases the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances – a view I respect, but reject – can find such cases as these to be simple or easy."
In another US case about the First Amendment (not cited to me) in Schenck v United States, [1919] USSC 64; 249 US 47, 39 SCt 247, 63 Led2d (1919) Justice Oliver Wendell Holmes stated his famous aphorism about 'falsely shouting fire in a theatre' and set forth a 'clear and present danger' test to judge whether speech is protected by the First Amendment. He said:
"The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils 1980 that Congress has the right to prevent. It is a question of proximity and degree."
Mr Radich then referred to T & T Newspaper Publishing Group Ltd v Central Bank of Trinidad & Tobago [1990] LRC (Const) 391, 409, where despite there being no qualifications to freedom of the Press in the Constitution of Trinidad and Tobago, the High Court recognised that the freedom was not absolute:
"Freedom of the press is ... one of the bastions of liberty, and will never be restrained in a free society; it is a right enshrined in the Constitution; it stands without qualification ... it must be given a broad and purposive meaning. Freedom of the press does not mean that the press has licence to publish what it wants, when it wants, about whom it wants, and how it wants in any improper, mischievous or illegal manner. Newspapers have a legitimate role in a free society to bring before the public information which might not be accessible to the public. It includes an inherent right not only to impart, propagate and communicate ideas, views, news and information, but to print, publish, circulate and disseminate without interference by anyone."
Mr Radich also cited Ingraham v McEwan [2003] 4 LRC 270, 286, where it was stated by the Court of Appeal of the Bahamas:
"... in ... examination of the constitutional provisions in ... the Constitution, there is nothing in any of the fundamental rights provisions, other than the prohibition of cruel and inhuman treatment, which can be said to be cast in absolute terms. ... such absolute rights would be unworkable.
In simple terms, if any one person has the absolute freedom of expression, for example, then it means that every other persons' [sic] similar right is destroyed or at least diminished to such an extent as to be insignificant. Indeed art 15 of the Constitution makes it clear that the fundamental rights of 'every person' ... is subjected to the fundamental rights of every other person in ... and to the public interest"
Mr Radich further referred to Public Prosecutor v Ooi Kee Saik [1971] 2 MLJ 108, where the accused had been charged with an offence under the Sedition Act, involving the publication of seditious words. But that case suggested that a court can take a pragmatic view of freedom of expression in the constitutional state, which I am unable to accept in view of the authority of cases such as Pinder already referred to and the importance of freedom of expression depending on proper and appropriate interpretation of the Constitution and not the values and discretion of judges.
Mr Radich also referred to Alesana v Samoa Observer Co Ltd [1998] WSSC 1, in the Supreme Court of Western Samoa, but although that was another Polynesian case, it concerned the exception to freedom of expression for defamation, which is already one of the exceptions in the unamended Clause 7 of the Tongan Constitution, so I did not consider that it added anything in this case.
In seeking legal justification and precedent for the interpretation of the extent of the implied limitations on the freedoms conferred by Clause 7, I therefore find that there is high authority for these being construed in terms of English common law (applicable in terms of the Civil Law Act (Cap 25)), in accordance with the limitations set out in Article 10(2) of the European Convention of Human Rights (as set out at page 28 above). Those exceptions may well have applied in Tonga by another route through the UK Human Rights Act 1998 prior to the amendment of the Civil Law Act (Cap 25) by the Civil Law (Amendment) Act 2003, which from 26 August 2003 removed the application in Tonga of statutes of general application in force in England.
While the legal principles referred to in the cases cited above by Mr Radich may be sound, they refer to the circumstances and societies in other countries and to other constitutions and I cannot see the legal justification for imposing them on the interpretation of Clause 7 of the Constitution of Tonga.
Express limitations -other constitutions
In his submissions in relation to express limitations on freedom of expression, Mr Radich referred to various examples from the constitutions of other countries, including the Constitution of Singapore, which I noted from Mrs Fusitu'a's affidavit appears to have been the primary source of the new Clause 7(2) of the Constitution of Tonga:
"Article 14 Freedom of Speech, Assembly, and Association
1. Subject to clauses 2 and 3:
(a) every citizen of Singapore has the right to freedom of speech and expression;
(b) all citizens of Singapore have the right to assemble peaceably and without arms;
(c) all citizens of Singapore have the right to form associations.
2. Parliament may by law impose:
(a) on the rights conferred by clause 1(a), such restrictions as it considers necessary or expedient in the interests of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of Court, defamation or incitement to any offence."
However, again precisely because these related to the circumstances of other countries and their specific constitutions, I did not consider that reference to them was of assistance in this case. What has been done in relation to other constitutions in different circumstances sheds little light on interpretation of the Constitution of Tonga; and also none, except to some extent that of Singapore, are in similar form to the new Clause 7(2) & (3). For example the relevant provision in the Fiji is much more comprehensively and clearly drafted and there was no indication that it was added as an amendment after the rest of the Constitution of Fiji was in place.
Severability
The test of severability of a legislative provision, referred to in Hinds v The Queen [1976] 1 All ER 353 (PC) at 372-3, has been laid down authoritatively by the Privy Council in London in Attorney General for Alberta v Attorney General for Canada ([1947] AC 503, 518 per Viscount Simon):
"The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all."
Validity of additions to Clause 7
As already mentioned the Court has to examine the additions to Clause 7 to see whether they either in terms of the unamended Clause 7 restrict the liberty of free speech, or in terms of Clause 79 affect the law of liberty.
"Restrict" means to limit (Chambers); or to confine to or within certain limits, to restrain by prohibition (Oxford). A person, though not prohibited, is restricted from using something if he is permitted to use it to a certain extent or subject to certain conditions, but otherwise obliged not to use it, but ... a person is [not] properly said to be restricted from using something by a condition the effect of which is to offer him some inducement not to use it, or in some other way to influence his choice: Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] UKHL 5; [1955] 2 All ER 657, 671 (HL), per Lord Oaksey.
"Affect" means to act upon, produce a change in (Chambers); or to influence (Oxford); and the meanings given in legal dictionaries are the same. It is said to be very wide in scope (Words & Phrases Legally Defined 1999 Supplement: Re Desjarlais [1989] 3 FCR 605, 608, FCA (Canada) per Desjardins JA).
The wording of the new purported Clause 7(2) of the Constitution, which is repeated here for ease of reference, is itself not entirely clear:
"(2) It shall be lawful, in addition to the exceptions set out in sub-clause (1), to enact such laws as are considered necessary or expedient in the public interest, national security, public order, morality, cultural traditions of the Kingdom, privileges of the Legislative Assembly and to provide for contempt of Court and the commission of any offence."
The word "expedient" occurring in that sub-clause means "advantageous, fit, proper, suitable to the circumstances; useful, politic (as opposed to just or right)" (Oxford); "suitable, advisable, politic (Chambers). It sets a lower standard than "necessary", a conclusion reinforced by the consideration that the legislature often employs the alternative standards of "necessary or expedient" (Words & Phrases Legally Defined 1999 Supplement: R v Leitch [1998] 1 NZLR 420, 428-9 (CA)). As the criterion of laws being "expedient" therefore sets a lower standard for legislating for exceptions to freedom of expression than that of being necessary in terms of a pressing social need, it thus goes beyond the implied exceptions to freedom of expression and is inconsistent with Clauses 7(1) and 79. On the other hand the criterion of laws being "necessary" may allow laws to be made if they are necessary in terms of a pressing social need, provided they are no more than is proportionate to the legitimate aim being pursued and do not involve prior restraint of freedom of expression except in cases of clear and present danger – but, and this is most important, any individual law made under the umbrella of sub-clause (2) would have to fall properly within those standards and it would always be liable for scrutiny for inconsistency in terms of Clause 82 of the Constitution.
I consider that the various factors listed in sub-clause (2) fall into 2 groups, the first being those which can be accepted as falling within the list contained in Article 10(2) of the European Convention of Human Rights and so are within the common law understanding of implied exceptions to freedom of expression. Even construing the words in the unamended Clause 7 granting freedom of expression widely and the exceptions narrowly, they thus cannot be said to restrict or affect the liberty of freedom of expression bestowed by Clause 7 (as subject to the implied exceptions). In that group are national security, public order (though cf Hector v Attorney-General of Antigua [1990] 2 All ER 103 (PC)), morality, privileges of the Legislative Assembly and contempt of court.
Although the privileges of the Legislative Assembly are to some extent provided for separately at Clauses 70 and 73 of the Constitution, they come within protection of the reputation or the rights of others and so are within the recognised exceptions to freedom of expression. Contempt of court is already well recognised under the common law (see eg Fie'eiki v Fifita [1995] Tonga LR 184 (CA); 'Akau'ola v Attorney General [1997] Tonga LR 36 (CA)), and the Legislative Assembly could legislate on it further if it thought appropriate, as provisions for contempt of court may well be provisions which are fundamentally necessary in a democratic society due to a pressing social need.
So I found that parts of Clause 7(2) were not amendments which inevitably and necessarily restrict or affect the freedoms of the unamended Clause 7 (read in the sense of including their implied limitations), and so those parts do not inevitably and necessarily conflict with the entrenching provisions and absolute prohibitions in Clauses 7 and 79. Therefore I find that the legislature had power to make the amendment adding those parts of Clause 7(2) to the unamended Clause 7 and that that amendment was validly made to that extent.
Turning to the other listed factors, the expression "the public interest" can have a multitude of meanings, such as an interest which a class of the community have by which their legal rights or liabilities are affected; or something in which the public has a vital interest in either a pecuniary or personal sense (Stroud's Judicial Dictionary). It has been pointed out as a word of caution that "there is a world of difference between what is in the public interest and what is of interest to the public": Lim Laboratories Ltd v Evans [1984] 2 All ER 417 (CA) 435. I consider that in any case the public interest can be said to be encompassed within the expression "necessary in a democratic society", but it is too wide and vague in terms of being allowable as a stated exception to freedom of expression.
In the context of the Constitution as already discussed, there is no authority or warrant for including an additional factor such as the cultural traditions of the Kingdom which is not recognised at common law in the exceptions to freedom of expression.
The power to provide for "the commission of any offence" is presumably intended to mean the power to provide that certain acts will be offences, though that is not what it says. I consider that it is void for want of meaning and, independently, because it is excessively wide. It appears to be a mistaken rendering of "incitement to any offence" in Article 14(2) of the Constitution of Singapore. In any event such a blanket power could not be said to be entirely within the expression "necessary in a democratic society".
Thus the other listed factors, ie the public interest, cultural traditions of the Kingdom, and the commission of any offence do not come within the common law understanding of implied exceptions to freedom of expression, either by reference to Article 10(2) or otherwise. So although some of them appear in the corresponding clause in the Constitution of Singapore, which Mrs Fusitu'a said was the primary model for sub-clause (2), they cannot be held to be valid factors which are implied exceptions to freedom of expression. As the Privy Council in London said in Olivier v Buttigieg [1966] 2 All ER 459, 466 (PC), on appeal from Malta:
" ... where 'fundamental rights and freedoms of the individual' are being considered, a court should be cautious before accepting the view that some particular disregard of them is of minimal account."
In consequence of all the above I consider that those parts of sub-clause (2) are inconsistent with the fundamental liberty of freedom of expression and so are void in terms of Clause 82 of the Constitution.
That is because they are amendments which may restrict and will inevitably affect the freedoms of the unamended Clause 7, and so may conflict with the entrenching provisions and absolute prohibitions in Clause 7 and will definitely conflict with Clause 79. Therefore because those prohibitions still stand, the legislature had no power to make the amendment adding those parts of Clause 7(2) to the unamended Clause 7 and that amendment was not validly made to that extent.
Those parts are not so inextricably bound up with the parts I have found valid that what remains cannot independently survive; and on a fair review of the whole matter I consider that it can be assumed that the legislature would have enacted what survives without enacting the part that is void.
Although I see no reason why the presumption of constitutionality should not apply to amendments to the Constitution as it applies to legislation, I do not consider that it applies with reference to these objectionable amendments, as they cut across or inhibit the freedom of expression to too great an extent and it is not possible to read the language of those parts of the amendment as subject to implied terms which would avoid conflict with constitutional limitations.
Under the principles of interpretation of the Constitution, I must give a wide meaning to the freedoms or liberties conferred by Clause 7, which means that I must construe narrowly restrictions to that – in this case the purported addition of exceptions to the freedoms. Doing so, I have come to the conclusion that the objectionable parts of sub-clause 7(2) are inconsistent with the unamended Clause 7 of the Constitution, so they are void in terms of Clause of the Constitution. I very much regret having to make such a finding in relation to an amendment to the Constitution which has had the approval of the Legislative Assembly, the Cabinet, the Privy Council and His Majesty The King, but it is the clear duty of this Court under the Constitution to do so and thus to uphold the Constitution as it stands.
Thus I find that the part of sub-clause 7(2) that are valid read as follows (indicating the spaces where invalid parts were by square brackets):
"(2) It shall be lawful, in addition to the exceptions set out in sub-clause (1), to enact such laws as are considered necessary [...] in [...] national security, public order, morality, privileges of the Legislative Assembly and to provide for contempt of Court [...]."
But I add the rider that I have already given above – that the sub-clause may only allow laws to be made if they are necessary in terms of a pressing social need, provided they are no more than proportionate to the legitimate aim being pursued and do not involve prior restraint of freedom of expression except in cases of clear and present danger. I repeat, and emphasise as important, that any individual law made under the umbrella of sub-clause (2) would have to fall properly within those standards and it would always be liable for scrutiny for inconsistency in terms of Clause 82 of the Constitution.
The resulting sub-clause unfortunately does not read very clearly, but it did not do so originally and I believe it is comprehensible as it stands. There is certainly no power within Clause 82 for this Court to amend it to clarify the drafting, cf a case to which I was referred by Mr Radich, Ex Parte President & Trustees of Tonga Ma'a Tonga Kautaha [1908-1959] Tonga LR Vol 1 (1911) 9, 13:
"It is not for the Chief Justice to say that the effect of a law passed at variance with the Constitution is beneficial or otherwise, he can only deal with the Constitution as it is, not as it might have been. He can add nothing to it, he can take nothing away from it, to act otherwise would be to render the Constitution an illusion and a farce."
although I recommend that the legislature might at some future date consider doing so.
Turning then to Clause 7(3), which also is repeated for ease of reference:
"(3) It shall be lawful to enact laws to regulate the operation of any media."
"Regulate" means to control or adjust by rule (Chambers); and to control, govern or direct by rule or regulations, to subject to guidance or restrictions, to bring or reduce to order, and to correct by control (Oxford); and so has a very wide meaning (although that does not include an absolute prohibition: Toronto v Virgo [1895] UKLawRpAC 46; [1896] AC 88; Ontario v Canada [1896] UKLawRpAC 27; [1896] AC 348; Tarr v Tarr [1972] 2 All ER 295, 302 (HL)).
It is much more difficult to see such a wide provision as this as falling within the accepted exceptions to the freedom of expression. Any attempt at regulation by legislation in terms of Clause 7(3) may restrict and affect the fundamental freedoms bestowed by Clause 7; and it is difficult to envisage examples of regulation of the media which may not in some way impose a prior restraint on freedom of expression, except perhaps in the mildest of forms or falling within the exceptions acceptable at common law, such as regulation to prevent publication of offensive material. But in view of the presumption of constitutionality, it may be possible to read the language of sub-clause 7(3) as subject to an implied term which avoids conflict with constitutional limitations, ie that laws can only be made under it if they are necessary in terms of a pressing social need, and provided they are no more than proportionate to the legitimate aim being pursued and do not involve prior restraint of freedom of expression, except in cases of clear and present danger. I am thus loath to declare sub-clause (3) inconsistent with the Constitution, but it must be subject to the implied term above. The caveats which I have given in respect of sub-clause (2) apply with even greater force to sub-clause (3) and I consider it highly likely that legislation falling under the umbrella of sub-clause (3) may inevitably be found to be inconsistent with Clause 7 as a whole.
So I found that Clause 7(3) is not an amendment which inevitably and necessarily restricts or affects the freedoms of the unamended Clause 7, and so it does not inevitably and necessarily conflict with the entrenching provisions and absolute prohibitions in Clauses 7 and 79. Therefore I find that the legislature had power to make the amendment adding Clause 7(3) to the unamended Clause 7 and that amendment was validly made, but it must be read as subject to the implied term that laws can only be made under Clause 7(3) if they are necessary in terms of a pressing social need, and provided they are no more than proportionate to the legitimate aim being pursued and do not involve prior restraint of freedom of expression, except in cases of clear and present danger.
Subject to that, I believe that the terms of sub-clauses (2) & (3) cover in fuller terms what has always been covered in the legal position on freedom of expression.
Media Act & Newspaper Act -general
It was submitted (and the evidence supported) that these 2 Acts were put forward to the Cabinet, the Privy Council and the Legislative Assembly all together as a suite of 3 Bills. These Acts are the Media Operators Act 2003 [Media Act] and the Newspaper Act 2003 [Newspaper Act]. Detailed submissions were made on the alternative positions of these 2 Acts (a) if the Constitution was validly amended; and (b) in relation to the unamended Constitution, although it was difficult to see the force of the defendant's submissions on the latter when all 3 Bills were put together as a suite, the inference from that being that it was necessary to amend the Constitution, in particular Clause 7, to validate the 2 Bills.
The general power of the legislature to make Acts which do not purport to amend the Constitution is given in Clause 56 of the Constitution and is set out again here for ease of reference:
"Power of Legislative Assembly
56. The King and the Legislative Assembly shall have power to enact laws, and the representatives of the nobles and the representatives of the people shall sit as one House. When the Legislative Assembly shall have agreed upon any Bill which has been read and voted for by a majority three times it shall be presented to the King for his sanction and after receiving his sanction and signature it shall become law upon publication. Votes shall be given by raising the hand or by standing up in division or by saying "Aye" or "No"."
It is important in that clause that the participation of the Legislative Assembly is completed when it "shall have agreed upon any bill which has been read and voted for by a majority three times".
Dr Harrison for the plaintiffs made submissions on the factual position on the comparative timing of the procedure for the 3 Bills, which is set out at page 3 above.
The Constitution Bill was passed by the Legislative Assembly 3 times (in accordance with Clause 79 of the Constitution) on 16 October 2003, but did not receive Royal Assent, when it was signed by the King, until 21 November, when it became law in terms of Clause 79 and the Constitution was purportedly amended in accordance with the terms of the Constitution Amendment Act. That Act was then published in the Tonga Government Gazette on 27 November.
But prior to that the Media Bill had been agreed upon and passed by the Legislative Assembly on 29 July, ie well before the purported amendments to Clause 7 of the Constitution had become law, or indeed had even been discussed or passed by the Legislative Assembly in terms of Clause 79 of the Constitution. I therefore found that, on the basis of the timetable of the Legislative Assembly, the Media Act (which received Royal Assent on 24 November and was published in the Tonga Government Gazette on 27 November, when in terms of Clause 56 it became law) was not agreed upon and passed by the Legislative Assembly at a time when Clause 7 of the Constitution had been amended.
By contrast the Newspaper Bill was agreed upon and passed by the Legislative Assembly on 20 October, ie after the purported amendments to Clause 7 of the Constitution had been discussed and passed by the Legislative Assembly in terms of Clause 79 of the Constitution on the 16 October, but again before those purported amendments had become law in terms of Clause 79, so once again I had to find that, on the basis of the timetable of the Legislative Assembly, the Newspaper Act (which received Royal Assent on 18 November, ie also even before the purported amendments to Clause 7 had received Royal Assent and so become law on 21 November) was not agreed upon and passed by the Legislative Assembly at a time when the purported amendments to Clause 7 of the Constitution had been completed and passed into law, albeit that the Legislative Assembly itself had passed them.
So both Acts have to be measured -for consistency with the Constitution in terms of Clause 82 -against the unamended Clause 7 and should not be measured for consistency against Clause 7 as purportedly amended. However as I consider that the valid remaining parts of the amended Clause 7 in legal terms merely cover in fuller terms what has always been covered in the legal position on freedom of expression, I do not consider that there is any substantive or practical difference.
Constitutionality of legislation
As already mentioned, this was considered in Tu'itavake v Porter [1989] Tonga LR 14, where I said:
"Constitutionality of legislation
It is a serious matter for a court to declare that any Act passed by Parliament is unconstitutional and so invalid, and. it is therefore not a step which a court should take hastily or lightly.
It is clear too that legislations may indirectly offend some constitutional limitation, although as drafted it does not do so directly, but the result will be the same, that the legislation will be ultra vires: Pillai v Mudanayake [1955] 2 All ER 833, 837 (PC):
"... the question for decision in all these cases is in reality the same, namely, what is the pith and substance, as it has been called, or what is the true character of the legislation which is challenged." AG for Ontario v Reciprocal Insurers [1924] AC 328, 337 (PC) cited in Pillai."
That position is also made specific in Tonga by section of the Interpretation Act:
"Construction of Acts to be subject to Constitution.
34. Every Act shall be read and construed subject to the Constitution and so as not to exceed the legislative power of the Kingdom to the intention that where an Act would, but for this section, have been construed as being in excess of that power, that Act shall nevertheless be valid to the extent to which that Act is not in excess of that power."
In addition the Court must consider and take into account the presumption of constitutionality, which has already been explained at page 9 above.
Are Media Act & Newspaper Act consistent with Clause 7?
Media Act
The Media Operators Act 2003 is a very brief Act of only 5 sections, the long title of which, indicating the general purposes and scope of the Act, is "An Act relating to licensing of media operators", though in fact the relevant definition of "media operation" in section 2 (Interpretation) restricts the meaning of that term to the operation of a newspaper. It is largely a repeat of the Media Operators Ordinance 2003, action under which became the subject of a ruling by the previous Chief Justice in May 2003.
The principal part of the Act is section 3, the headnote or marginal note of which is "Restriction on issuing of media licences". The term "media licences" appears to be undefined and so is to that extent inconsistent with the language of the section itself, which concerns "Any licence required by law for trading or operating of any media operation". However in some ways the question for the Court is answered by the terms of the headnote to section 3, which shows that the whole purpose of this Act is to restrict the issuing of licences to operate a newspaper -in this case completely prohibiting the grant of a licence to a person who is not a Tongan subject or to a foreign corporation as detailed in section 3(b),(c) & (d).
Bearing in mind all the authorities and guidance on freedom of expression already referred to at length, I consider that section 3 of the Media Act is clearly inconsistent with Clause 7 (whether unamended or validly amended), because it prevents certain people from exercising freedom of the Press, and thus prevents the public from having access to information and comment freely. It effectively prohibits certain people from holding a licence for publication of a newspaper, rather than simply regulating them and does not fall within the valid parts of the new Clause 7(2) of the Constitution. It does not even make any attempt at regulation. I do not consider that what is said by Mrs Fusitu'a in her affidavit comes up to indicating that such a prohibition is necessary in terms of any of the factors in Clause 7(2) or a pressing social need, is no more than proportionate to the legitimate aim being pursued, and does not involve prior restraint of freedom of expression, except in cases of clear and present danger: nor would it meet an implied term to that effect.
I was unable to accept the submission by Mr Radich for the defendant that because the Act provides for the ownership of newspapers, rather than who writes in them, that it did not restrict freedom of the Press, which I consider it patently does.
Although I heard submissions about the relevance of Clause 4 (Same law for all classes) of the Constitution on this matter I do not think it is necessary to go into that.
The restriction on freedom of speech and the Press is so serious and inconsistent with Clause 7 that its application in the Media Act, whether to Tongans or to non-Tongans, has to be void in any event, so that issues under Clause 4 are not crucial.
I do not consider that the presumption of constitutional validity of legislation applies in this case as the provision in question goes to the heart of freedom of expression, so that it is not possible to read the statutory language as subject to an implied term (such as only being exercised if necessary in terms of a social need etc) which would avoid conflict with constitutional limitations.
The final question in relation to the Media Act is whether section 3 is severable from the remaining provisions of the Act so that the latter still remain enforceable as part of the law of Tonga.
I consider that section 3 is the core of the Media Act and all the other sections of the Act are tied together and inextricably bound up with section 3, so it is not possible to sever the inconsistent sections so that they can survive independently. On a fair review of the whole matter it could not be assumed that the legislature would have enacted what survives without enacting section 3. I therefore find that the whole of the Media Act is void as being inconsistent with Clause 7, even to the extent that that clause has been validly amended.
The Newspaper Act 2003, the long title of which, indicating the general purposes and scope of the Act, is "An Act to make provision for the regulating of newspapers in the Kingdom", has 5 Parts and 20 sections. The core is Part III dealing with Newspapers, which has 3 Divisions covering Responsibility and Standards, Newspaper Licences and Powers of authorised officers.
In general the provisions of the Act appear to consistently put hurdles in the way of a free Press for newspapers, as under section 8 the Minister may, with the consent of the Cabinet, determine content standards for newspapers, which may include but are not limited to:
"(a) the restriction or prohibitions relating to the supply of unsuitable content or particular types of content;
(b) the methods of classifying content;
(c) the restrictions or prohibitions relating to advertising content; and
(d) the representation of Tongan culture and national identity."
Given the unlimited width of this power, which is effectively one of prior restraint, it is impossible to say that it will only be exercised in circumstances which will fall entirely within the recognised exceptions to the freedom of the Press.
Further no newspaper is to be published without a licence granted by the Minister (section 9); a licence is required for the sale and distribution of any foreign newspaper (section 10); it is forbidden to sell, import etc any declared foreign newspaper (section 11). Each of these is either a wide restraint on publication or a wide restraint on circulation, cf Olivier v Buttigieg [1966] 2 All ER 459,465-6 (PC), where the Privy Council in London, on appeal from Malta adopted what had been said in an Indian case:
"There can be no doubt that freedom of speech and expression includes freedom of publication of ideas and that freedom is secured by freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed without circulation the publication would be of little value."
and, as already mentioned, also said:
" ... where 'fundamental rights and freedoms of the individual' are being considered, a court should be cautious before accepting the view that some particular disregard of them is of minimal account."
Thus these powers would be a restriction on freedom of the Press which does not fall within the recognised exceptions to the freedom of the Press.
Section 12, which declares its purpose openly with the headnote "Censorship", prohibits a licensee from supplying any content in a newspaper which:
"(a) is indecent or obscene;
(b) displays excessive violence;
(c) is blasphemous;
(d) is treasonous or seditious;
(e) invades the privacy of an individual without that individual's consent;
(f) is defamatory;
(g) is not honest, fair, independent and does not respect the rights of others; or
(h) contravenes the Laws of the Kingdom."
By prohibiting such content in a newspaper, those provisions of section 12 bear heavily as prior restraints on freedom of the Press. While some of the objectives are laudable and may well fall within the recognised exceptions to freedom of expression such as the protection of morals or public safety, and indeed may already be covered as offences under other laws, others such as invading privacy and content which is not honest (ultimately a question for a court of law) or fair (a highly subjective matter) are breaking new ground and cannot be held to be consistent with the Constitution, cf the case already referred to of Hector v Attorney-General of Antigua [1990] 2 All ER 103,106 (PC):
" ... it would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based."
I accepted the submission by Dr Harrison for the plaintiffs that a serious objection to section 12(1) is that it criminalises acts which in some cases are independent criminal or civil wrongs, potentially creating a duplicate liability which may have no connection with perceived journalistic standards. In particular I accepted that the reference in para (e) to content which invades the privacy of an individual without that individual's consent is an unworkably vague formulation which is a serious inroad into Press freedom. There are no general laws governing privacy, so it is unclear what an individual's privacy right or interest may in law consist of, nor what an invasion of such privacy may consist of; the provision draws no distinction between public figures and those who are not; and there appears to be no defence of truth.
In this context the Newspaper Act clearly does not follow the famous saying which effectively sums up freedom of expression, attributed to Voltaire:
"I disapprove of what you say,
but I will defend to the death your right to say it."
Sections 13 and 15 in Division 3 (Powers of authorised officers) then provide extensive powers to authorised officers (a term itself widely defined in section 2(1) as any police officer, customs officer or any person authorised by the Registrar of Newspapers or the Deputy or Assistant Registrar of Newspapers) to examine packages on suspicion that they contain a declared (ie proscribed) foreign newspaper and to seize and detain illegal newspapers. Those powers clearly inhibit freedom of expression and free circulation of the Press.
Section 14 is incongruously placed in Division 3 as it does not deal with the powers of authorised officers, but prohibits and makes it an offence to subscribe to a declared foreign newspaper – a clear breach of the freedom to receive opinions.
The penalties prescribed by section 17 for offences under the Act are heavy, being either or both a fine not exceeding $10,000 or imprisonment for a term not exceeding 1 year.
I was unable to accept the submissions by Mr Radich for the defendant that in this respect the Court had no authority to tamper with the legislature's right to enact legislation, as the powers given in this Act are too excessive for that. Nor could I accept, given the terms of Clause 82 of the Constitution, that the Court's role is simply to monitor the use of the Act.
Mr Radich had earlier referred to Chavunduka v Minister of Home Affairs [2000] 4 LRC 561, 579, where the Supreme Court of Zimbabwe said:
"The wealth of learning which supports the conclusion reached by [the Chief Justice] contains a relatively simple message, which is this: the section is too widely expressed, too unclear as to its limitations, and too intimidating (because no one can be sure whether what he says or writes will or will not attract prosecution and imprisonment). That is why it cannot stand.
We are not saying that freedom of expression is limitless. We are not saying that people may publish anything they wish, however pornographic, however untruthfully subversive, however race-hatred inspiring.
It is not the court's function to redraft legislation. That is the function of Parliament and the state's draftsmen and women. All we are saying is that the section is unacceptable as it stands."
I find myself very much in agreement with those views in relation to the Newspaper Act 2003.
Bearing in mind all the authorities and guidance on freedom of expression already referred to, I thus consider that those substantial parts of the Newspaper Act are clearly in direct conflict with and inconsistent with Clause 7 of the Constitution, even as validly amended, because they prevent certain people from exercising freedom of the Press (even as it is subject to the recognised exceptions), and thus prevent the public from having access to information and comment freely. Again I do not consider that what is said by Mrs Fusitu'a in her affidavit comes up to indicating that such provisions are necessary in terms of any of the factors in Clause 7(2) or a pressing social need, are no more than proportionate to the legitimate aim being pursued, and do not involve prior restraint of freedom of expression, except in cases of clear and present danger: nor would they meet an implied term to that effect.
Although I again heard submissions about the relevance of Clause 4 (Same law for all classes) of the Constitution on this matter I do not think it is necessary to go into that. The restriction on freedom of speech and the Press is once more so serious and inconsistent with Clause 7 that its application in the Newspaper Act, whether to Tongans or to non-Tongans, has to be void in any event, so that issues under Clause 4 are not crucial.
Once again I do not consider that the presumption of constitutional validity of legislation applies in this case as all the provisions in question go to the heart of freedom of expression, so that it is not possible to read the statutory language as subject to implied terms (such as only being exercised if necessary in terms of a social need etc) which would avoid conflict with constitutional limitations.
The final question is whether those objectionable parts of the Act are severable from the remaining provisions of the Act so that the latter still remain enforceable as part of the law of Tonga.
While it might have been possible for some of the unobjectionable parts of section 12 to remain on their own, that could not be done because section 12 is tied up with the newspaper licensing system of the Act. I thus regret that I consider that those objectionable parts of the Act are so extensive and would give the defendant such unfettered discretion that all the other sections of the Act are tied together and inextricably bound up with them, so it is not possible to sever the inconsistent sections so that they can survive independently. On a fair review of the whole matter it could not be assumed that the legislature would have enacted what survives without enacting those objectionable parts. I therefore find that the whole of the Newspaper Act is void as being inconsistent with Clause 7.
Conclusion on Media Act & Newspaper Act
Under the principles of interpretation of the Constitution, I must give a wide meaning to the freedoms or liberties conferred by Clause 7, and I must construe restrictions to that narrowly. Doing so, and having proper regard to the pith and substance of the 2 Acts which have been challenged, I have therefore come to the conclusion that each of these 2 Acts is inconsistent with Clause 7 of the Constitution, even as amended, so they are void in terms of Clause 82 of the Constitution. The presumption of constitutional validity is of no avail in these cases. Once again I very much regret having to make such a finding in relation to legislation which has had the approval of the Legislative Assembly, the Cabinet, the Privy Council and His Majesty The King, but again it is the clear duty of this Court under the Constitution to do so and thus to uphold the Constitution.
Responsibility of the Press
Even although I am declaring these 2 Acts void, as has been indicated in places throughout this decision, freedom of the Press under the Constitution is not limitless and there still remains a responsibility on the Press, especially as freedom of the Press is not so much conferred on the Press, as on the people, whom it sets at liberty to receive knowledge and opinions. There are well-recognised exceptions to freedom of expression which have now been spelt out in the parts of the amendments to Clause 7 of the Constitution which I have found valid.
To repeat what I have said already, free speech means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth, ie freedom governed by law. It is equally important that freedom of the Press does not mean that a newspaper has licence to publish what it wants, when it wants, about whom it wants, and how it wants in any improper, mischievous or illegal manner: it is not limitless.
This decision must not be taken as authority for a newspaper to publish anything it wishes, eg however pornographic, or untruthfully subversive, or race-hatred inspiring. If a newspaper publishes material which is improper, mischievous, or illegal, it must take the consequences if the result is illegal.
Clause 103A
The terms of Clause 103A, which was also inserted into the Constitution as a new provision by the Constitution Amendment Act are:
"103A. The remedy for breach of any provisions of the Constitution shall be declaratory relief and shall not affect any award of damages under any other law."
It is not exactly clear what the words "declaratory relief" either mean or were intended to mean. In terms of Pepper (Inspector of Taxes) v Hart [1992] UKHL 3; [1993] 1 All ER 42, 64 (HL) (referred to in Touliki Trading Enterprises Ltd v Fakafanua [1995] Tonga LR 8, 22), it is now considered permissible to refer to parliamentary materials in order to ascertain the meaning of legislation where the legislation is ambiguous, or obscure, or the literal meaning leads to absurdity; and the parliamentary material relied on consists of statements by a Minister or other promoter of the Bill, which led to the enactment of the legislation, together if necessary with such other Parliamentary materials as are necessary to understand such statements and their effect; and those statements were clear. It was said in that case (at p 64):
"Statute law consists of the words Parliament has enacted. It is the Court's duty to construe those words and it is the Court's duty in doing so to give effect to the intention of Parliament in using those words."
The Explanatory Note by the Hon Attorney General on the Constitution Bill, to which therefore the Court can refer states:
"Section 3: Amendment to Clause 103 This Amendment does not affect damages available under the law of torts and contracts, or other causes of actions. This new Clause sets out clearly the present position in law, where the Constitution does not specifically provide for damages as remedy for any breach of the Constitution. The remedy for such a breach is declaratory only."
The Oxford Dictionary of Law describes "declaratory judgment" as a judgment that merely states the court's opinion on a question of law or declares the rights of the parties, without normally including any provision for enforcement. Curzon's Dictionary of Law describes "declaration judgment" as a judgment which merely states the court's opinion on a question of law, or declares the rights, existing or future, of the parties; and does not generally carry an order for enforcement (Order 15 Rule 16). In his classic work Constitutional and Administrative Law (5th ed 1986) de Smith in his chapter on Remedies clearly deals with the declaration or declaratory judgment as being separate from and not including the prerogative orders of certiorari, prohibition and mandamus or the prerogative writ of habeas corpus; and explains that declarations can be awarded in almost every situation where an injunction will lie and are a discretionary remedy, but states that there are few limits to the potential scope of declaratory relief in public law (p 622-624). In the later work Judicial Review of Administrative Action (5th Ed 1998) by de Smith, Woolf & Jowell at 18-001 it is stated:
"A declaratory judgment is a formal statement by the court pronouncing upon the existence or non-existence of a legal state of affairs. It declares what the legal position is and what are the rights of the parties. ... A declaratory judgment ... pronounces upon the existence of a legal relationship but does not contain any order which can be enforced against the defendant."
In addition, in the Supreme Court [of Tonga] Rules 1991, at Order 27 Rule 1, a similar distinction is made:
"This order applies to any action against an inferior court, tribunal or public body (including an individual charged with public duties) in which the relief claimed includes an order of mandamus, prohibition or certiorari, or a declaration or injunction (in this order referred to as "judicial review")."
Thus from these definitions I would assume that "declaratory relief" means exactly what it says, ie a declaration and nothing more.
However Mr Radich for the defendant submitted orally that the term "declaratory relief" included the prerogative orders. If the Government is prepared to honour that submission in all cases in which it is concerned, that is well and good, but I regret that I cannot accept that as a matter of law prerogative orders are properly included within the term "declaratory relief".
As stated previously, I fully accept that the legislature has power to amend the Constitution to make a provision of this nature -but as before, always subject to the entrenchment provision in Clause 79. Those words -"provided that such amendments shall not affect the law of liberty ... " -while they still stand in the Constitution, effectively bar any amendment to the Constitution which does affect the law of liberty.
It was stated in Minister of Police v Moala at 219:
"Each of the organs of Government in Tonga has the powers that are defined by the Constitution, which as the Chief Justice pointed out, and as was pointed out by this court in Touliki v Fakafanua ... , places at its very forefront the liberties of Tongan citizens. Clause 70 is intended to trench upon those liberties only so far as is necessary to enable a Parliamentary Assembly to function effectively. The clause is an exception to a principle of liberty, and should be understood, not in any loose or expansive sense, but in accordance with its terms."
I accept that it has not been established in Tonga that there is a right to constitutional damages. Although the matter was raised in Pohiva v Prime Minister and Kingdom of Tonga [1988] LRC (Const) 949, it is not authority for that, as Martin CJ specifically stated that the breach in question was a tort:
"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 exercise of that right. The duty is owed to all persons. Any interference with that right is a breach of the duty and a tort. If such a breach of duty causes loss to someone, that person is entitled to be compensated. A person who has suffered this type of wrong may seek his remedy in tort, even though he may be able to frame his claim in some other way. And when dealing with fundamental rights the Court will not stand on technicalities. It looks at the reality of the situation and unless there are compelling reasons to the contrary will provide a remedy."
and the Court of Appeal deliberately declined to take up the matter in Edwards v Pohiva (Cross-Appeal) [2003] TOCA 8:
"Dr Harrison submits that this court has not previously considered the question whether the Constitution of Tonga gives rise to a separate cause of action for damages or compensation for a proved breach of a constitutional provision. However, he also accepts that, if the court rejects the appeal on other grounds, it will not be necessary to decide whether there is a separate right of action for breach of the Constitution.
That is now the position. The appeal having otherwise failed, we do not propose to deal with this submission in what would necessarily be an obiter finding. It is preferable that this issue be determined in a case where the decision will be determinative."
There has been a great deal of authority in other jurisdictions as to why there should be a right to constitutional damages, particularly where there is a written constitution. The matter was much discussed in a case cited by Mr Radich for the defendant, Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 (CA) and it seems to me that there may well be a right to constitutional damages in Tonga.
However, referring back to Edwards v Pohiva, any decision in this case as to whether there is such a right to constitutional damages in Tonga would be obiter, as the plaintiffs simply seek a declaration and not damages or any other remedy; and in addition it could be said that it was not fully argued before the Court. Certainly the cases referred to in Baigent's Case were not subject to detailed submissions. So I find myself in the same position as the Court of Appeal in Edwards v Pohiva and consider that it is not appropriate to make any kind of definitive ruling on the issue, but for the purposes of consideration of the consistency of Clause 103A with the Constitution as a whole, taking into account all the authority cited above I shall proceed on the basis that it may be possible for this Court to award constitutional damages in an appropriate case.
I have already mentioned the submissions for the defendant on the issue of whether "declaratory relief" includes or excludes the prerogative orders and writ (of habeas corpus). I regret that I do not think it can be argued with any logical or legal force that "declaratory relief" includes the prerogative orders and writ. It therefore concerned me greatly, as Dr Harrison submitted for the plaintiffs, that Clause 103A may have ruled out the prerogative orders in relation to breach of any provisions of the Constitution. The scenario which he presented -ie the abolition of the powers of the court to grant prerogative orders or the prerogative writ of habeas corpus (in exercise of the liberty in Clause 9 of the Constitution) -is indeed a bleak one for upholding the liberties enacted in Part I of the Constitution.
But at the same time the Court of Appeal accepted in 'Akau'ola & Kingdom of Tonga v Pohiva [1990] Tonga LR 159, 162 (CA) that "It has always been competent for an application to be made in the Tongan Supreme Court for relief of the kind referred to in [the English] RSC Order 53", ie applications for judicial review and the prerogative orders.
It is a common law presumption of legislative intent that access to the courts in respect of justiciable issues is not to be denied save by clear words in a statute: de Smith, Woolf & Jowell Judicial Review of Administrative Action (5th Ed) 5-017.
The subject's right of access to the courts may be taken away or restricted by statute, "but the language of any such statute [ie one depriving the subject of a right of appeal to the courts] should be jealously watched by the courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension. ... Parliament may enact this as they may enact anything else. But I should expect words showing a clear intention so seriously to interfere with the liberties of the subject.": Re Boaler Re Vexatious Actions Act 1896 [1914-15] All ER Rep 1022 (CA), at 1030 and 1031 per Scrutton J; Halsbury's Laws (4th Ed) Vol 10 para 720.
It was also said by Viscount Simonds in Pyx Granite Co v Ministry of Housing [1959] 3 All ER 1 (HL) at 6:
"It is a principle not by any means to be whittled down that the subject's recourse to [the] courts for the determination of his rights is not to be excluded except by clear words. That is ... a 'fundamental rule' from which I would not for my part sanction any departure."
The position in relation to implied repeal of terms of a Constitution has already been dealt with above. As to statutes providing a new remedy where a remedy already exists, the remedies may co-exist unless the later statute expressly or by necessary implication excludes existing remedies: Halsbury's Laws (4th Ed) Vol 44 para 943. Note 7 to para 943 referred to in Read v Croydon Corporation [1938] 4 All ER 631, 652 (KBD), where Stable J adopted the test put forward by Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] All ER Rep 127 (CA) at 132, ie the question is one of the true construction of the particular statute concerned as a whole, and it may be the intention of the statute, as disclosed by its scope and by its wording, that other remedies should not be included. I believe the same applies in relation to this Constitution.
I therefore cannot hold that this Court's jurisdiction under Clause 90 of the Constitution, which makes specific mention of "all cases in Law and Equity arising under the Constitution ... ", and which quite clearly thus includes jurisdiction to make prerogative orders and writs in respect of breaches of any provisions of the Constitution, could be overridden or swept away by Clause 103A without any specific mention that that was being done, notwithstanding the broad language of the Constitution and the interpretation to be given to it: as this is an exemption provision rather than an enabling provision, it has to be construed strictly.
I am therefore left with the conclusion that, while accepting the supremacy of the legislature and its ability to make provision under the Constitution for breach of any provision of the Constitution, the effect of Clause 103A may simply be to restrict the remedies such as constitutional damages which might otherwise be available for breaches of its provisions. But even if that is so, I consider that that significantly affects and restricts the law of liberty, which is not sanctioned by the Constitution as it stands, particularly in relation to the subject matter of this case, Clause 7 and the additional words there "and no law shall ever be enacted to restrict this liberty".
I therefore find in terms of Clause 82 that Clause 103A is void to the extent that it is inconsistent with the law of liberty in the Constitution (ie the relevant provisions of the declaration of rights in Part I of the Constitution, in particular Clause 7, which was the subject of this case) and any consequent right to constitutional damages under the Constitution.
Claim of judicial review
I have dealt with the plaintiffs' claims on the basis that they are constitutional claims in terms of the Court's jurisdiction under Clause 82 of the Constitution, but in as much as I have found that some of the amendments to the Constitution and the 2 Acts made under it are inconsistent with the Constitution and hence void, they are also ultra vires and so the result on judicial review is the same.
Costs
As neither side has been entirely successful, but each side has been partially successful in their claims and defence respectively, I shall meantime make no order as to costs, but I shall leave it open to the parties to make further submissions on costs if they wish, either orally or in writing.
Conclusions
The Court therefore makes the following declarations:
1. Parts of Clause 7(2) of the Constitution are inconsistent with the entrenching provisions of Clauses 7 and 79 of the Constitution and so are void in terms of Clause 82 of the Constitution. The remainder of Clause 7(2) is not inconsistent and is valid, so that Clause 7(2) must read:
"(2) It shall be lawful, in addition to the exceptions set out in sub-clause (1), to enact such laws as are considered necessary in national security, public order, morality, privileges of the Legislative Assembly and to provide for contempt of Court."
2. Clause 7(3) of the Constitution is not inconsistent with the entrenching provisions of Clauses 7 and 79 of the Constitution and so is valid, provided that it must be read as subject to the implied term that laws can only be made under it if they are necessary in terms of a pressing social need, and provided they are no more than proportionate to the legitimate aim being pursued and do not involve prior restraint of freedom of expression, except in cases of clear and present danger.
3. The Media Operators Act 2003 is inconsistent with Clause 7 of the Constitution, and so is void in terms of Clause 82 of the Constitution.
4. The Newspaper Act 2003 is inconsistent with Clause 7 of the Constitution, and so is void in terms of Clause 82 of the Constitution.
5. Clause 103A is void to the extent that it is inconsistent with the law of liberty in the Constitution and any consequent right to constitutional damages.
And no order as to costs is made meantime.
CLERICAL CORRECTION TO DECISION AND SUMMARY
I am humbled to find that a clerical error has crept into the Decision in this case and also the Summary.
It relates to the form of Clause 7(1) of the Constitution as it was after the 2003 amendments, and remains now. It is reproduced wrongly at page 4 of the Decision and page 2 of the Summary.
In both instances in Clause 7(1) the end of the sub-clause should read:
"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."
DATED: 15 October 2004
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