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

C 219/2003

Lali Media

v

Lavaka Ata

Ward CJ
21 and 22 May 2003; 26 May 2003

Judicial review – consideration of Ordinance – unlawful and invalid – quashed

The Privy Council passed the Protection from Abuse of Press Freedom Ordinance (the Ordinance). The plaintiffs applied for judicial review of, and for damages and injunctive relief in relation to that Ordinance. In view of the urgency of the matter, the Court only dealt with the application for judicial review. The plaintiffs claimed that the Ordinance was passed with the sole purpose of banning the Taimi 'o Tonga newspaper from the Kingdom, it was ultra vires section 7 of the Government Act and breached the Constitution. The defence denied the allegations and added that the Ordinance was enacted as an exercise of the Royal Prerogative.

Held:

1. The modern position of the prerogative was that it was limited by the common law and the Monarch could claim no prerogative that the law did not allow. When the prerogative was defined by statute, as occurs in the Tongan Constitution, it was thereafter subject to that law. Prerogative powers fell into two distinct groups: those which were clearly stated to be the prerogative of the King alone, "personal prerogatives", and those which were executive acts of the Crown (with or without the personal involvement of the King), exercised by the Privy Council, Cabinet or other government departments, "executive prerogatives". If the prerogative was a personal one, the courts have no jurisdiction to question the manner of its exercise. If it was an executive prerogative the court may determine the extent of it and the manner in which it was used.

2. The Ordinance did not enforce any personal prerogative of the King and insofar as Privy Council passed it under subsection (d) it was clearly ultra vires the section and was therefore void. There was no evidence that Privy Council purported to act under its executive prerogative but the Court was satisfied that it would not have been a sufficient reason for the use of that power because there was no circumstance which had arisen requiring an Ordinance which simply restated the terms of an Act under which there was already an existing prohibition by Order in Council. It would, therefore, have been ultra vires section 7. 

3. This Ordinance was not an attempt to pass a law to protect the King, Royal Family, Government and people of Tonga from any abuse of press freedom but an ordinance passed for the sole purpose of banning this specific paper. An attempt to muzzle a paper simply because it expressed views contrary to, or critical of the policies of the government in power was a blatant and serious abuse of clause 7.

4. The following orders were made: the Ordinance was unlawful and invalid; the Ordinance was quashed; the Court declined to make the declaration sought that sections 7(a) and 8 of the Government Act were inconsistent with the Constitution; and the Court declined to order the injunction sought for the same reasons as were given in the earlier case. 

Statutes considered:
Constitution (Cap 2)
Government Act (Cap 3)

Rules considered:
Protection from Abuse of Press Freedom Ordinance

Counsel for plaintiffs: Harrison and Mangisi
Counsel for defendants: Stanton and Kefu

Judgment

This is an application for judicial review of, and for damages and injunctive relief in relation to, a decision of the Privy Council by which it passed the Protection from Abuse of Press Freedom Ordinance (the Ordinance). In view of the urgency of the matter, the Court is only dealing with the application for judicial review at this stage.

The plaintiffs' case is that the Ordinance was passed with the sole purpose of banning the Taimi 'o Tonga newspaper from the Kingdom, it was ultra vires section 7 of the Government Act and breached the Constitution.

The first defendants are all the members of the Privy Council apart from the King. Both parties have agreed that this is a challenge to the Privy Council as a body and take no issue over the fact that His Majesty has not been joined or served.

In late March of this year there was an application for judicial review of three earlier attempts by or on behalf of the Government to prevent the importation of the same newspaper into the Kingdom (the earlier case). The first two bans were imposed by the Chief Commissioner of Revenue and the third by Privy Council. I granted the relief sought in a reserved judgment delivered on 4 April 2003. The effect of my Orders was to lift all three bans on the importation of the Taimi.

The parties had been given notice that the judgment was to be delivered on 4 April 2003 and, on the same day, the Privy Council passed the Ordinance. It was also published that day in a Supplement of the Tonga Government Gazette. Although the Ordinance was passed before the judgment had been delivered, it can only be assumed the Government had correctly anticipated the result in the earlier case because the effect of the Ordinance was to negate the result of the judgment.

The affidavits and cross-examination in the earlier case have been taken as evidence in this case and the defendants have not sought to adduce any further evidence save for four discovered documents. The Court has proceeded on the basis, therefore, that the Ordinance was passed for the same reasons as formed the foundation of the earlier decisions. It will follow that my findings of fact in the earlier case will apply in great extent to the present case. Both actions are necessarily closely related and I shall refer to those findings, when relevant, in this case.

First, I can adapt from that judgment some undisputed facts.

The Taimi 'o Tonga is published and printed in New Zealand by the first Plaintiff, a limited liability company with its registered office in Auckland. The chief executive officer is the second plaintiff and he and his wife are the sole shareholders. He is Tongan born but has become a citizen of the United States of America. His wife is Tongan.

The third plaintiff, also a Tongan, has worked for the Taimi since 1994 and is at present the Manager of the Tonga operation of the newspaper. There is a Tongan Editor based here and the remaining staff in Tonga are all Tongan as are some of the staff in New Zealand. The third plaintiff manages the collection of news here and its transmission to New Zealand and also the distribution of the paper in Tonga. There has been no challenge to the fact that virtually all the news content of the paper is gathered in Tonga by the Tongan staff. Each issue of the paper is printed in two editions to ensure the advertising content relates principally to Tonga in one and to New Zealand in the other. There is also a substantial readership in Australia and the United States and some advertising from those countries.

The paper started in 1989 as a Tonga based weekly newspaper with the second plaintiff as the Managing Editor but, in 1995, the operation was moved to New Zealand. In 1997, it started to produce two issues each week and it does still.

There is no dispute that the paper has always paid any taxes and duties due for the Tonga business and it has held and still holds a business licence here. In the earlier case, I accepted that there is a valid licence for the operation of the paper here in Tonga for the year 2003.

The Earlier Orders

On 26 February 2003, the Chief Commissioner of Revenue by letter to the third defendant purported to give notice under section 34 of the Customs and Excise Act that the Taimi was a prohibited import.

The next day, 27 February 2003, the Chief Commissioner published a declaration in the Gazette, under Schedule II of the same Act, that the Taimi was seditious or advocating violence, lawlessness or disorder.

On 6 March, proceedings were started for judicial review of both orders and application made for an interim order lifting them. The day after service on the Government lawyers of the papers in the case, an Order in Council under section 3 of the Prohibited Publications Act was published in the Gazette prohibiting the import of the Taimi. 

The Next Step 

As has been stated, judgment in the earlier case was delivered on 4 April 2003 but, on the same day, Privy Council met at 10.00am and passed the Ordinance. 

The documents discovered for the present proceedings show that there had been a meeting of Cabinet at 4.05 pm (incorrectly shown on the agenda as 4.00am) on 3 April 2003 and the decision was circulated the same day.

"With reference to Protection from Abuse of Press Freedom Ordinance 2003.

I have the honour to inform you that His Majesty's Cabinet decision on 3rd April, 2003 was as follows:-

Recommendation approved with amendments in both the English and Tongan texts of the draft ordinance, i.e.:

That the draft Protection from Abuse of Press Freedom Ordinance 2003 be approved for submission to Privy Council, and if approved thereat be gazetted." 

At the Privy Council meeting the next morning, 4 April 2003, the recommendation of Cabinet was that the Ordinance "be approved and gazetted". It was passed, printed and published in the Gazette the same day.

The long title reads; "An Ordinance for the Protection of the King, Royal Family, Government and People of this Kingdom from Abuse of Press Freedom" and the enacting clause states; "Be it Ordained by the King and the Privy Council in pursuance of the powers conferred by the Act of the Constitution of Tonga and by the Government Act as follows:"

The Ordinance follows very closely many of the provisions already enacted in the Prohibited Publications Act under which the earlier Order in Council had been issued. The new law makes it an offence for any person to publish, sell or offer for sale, distribute, copy or reproduce, possess or import any publication or part thereof listed in the Schedule to the Ordinance with a penalty of $1,000 or 2 years imprisonment.

Sections 6 and 7 provide:

"6. (1) The Cabinet may be (sic) regulation delete from or add to the list of publications in the Schedule.

(2) Any action may only be done under subsection (1) if in the opinion of Cabinet such action is for the protection of the King, the Royal Family, the Government or the people of the Kingdom.

(3) An action done under this section shall not be subjected to any judicial review.

7. Prosecutions under this Act shall be instituted by the Police."

The Schedule lists two publications; "Taimi 'o Tonga newspaper" and "Lali Media Limited publications". 

The Claims 

The plaintiffs base their attack on the Ordinance on a number of grounds which Mr Harrison for the plaintiffs has summarised as:

1. That it is unconstitutional because it:

(a) is contrary to the clause 7 guarantees of freedom of opinion and freedom of the press

(b) amounts to punishment of the plaintiffs without due process contrary to clause 10

(c) breaches or is in excess of clauses 4,14, 17, 50 and 56

2. That it is ultra vires the power under section 7 of the Government Act to pass Ordinances, in particular the power under section 7(a)

3. It is an abuse of the powers (if any) of the King and Privy Council to pass Ordinances and/or unreasonable and/or made in bad faith

4. It is invalid for breach of natural justice.

The statement of defence denies of all these allegations and adds that: 

1. the Ordinance as enacted was an exercise of the Royal Prerogative as it exists in Tonga;

2. the prerogative as it applies as an act of State is not within the cognisance of this Honourable Court; and

3. the exercise of the prerogative in the case at bar being in respect of the First and Second plaintiffs as foreigners was a valid and effectual exercise of power and further was not a matter upon which this court has jurisdiction to entertain a claim as to its exercise." 

The Section 7 Power

The power to pass, and the effect of, ordinances is contained in sections 7 and 8 of the Government Act (Cap 3):

"7. The King and the Privy Council may between the meetings of the Legislative Assembly pass Ordinances –

(a) enacting regulations which may be required in consequence of circumstances arising between meetings of the Legislative Assembly; or 

(b) suspending until the next meeting of the Assembly any law the suspension of which has been requested by the Chief Justice; or

(c) giving effect to any treaty arrangement made by Tonga with foreign countries; or

(d) enforcing the prerogative of the King which have been proposed by the King; or

(e) authorising the payment of any extraordinary expenditure. 

8. Every Ordinance of Privy Council shall be signed by the King and the Minister of the department to which such Ordinance relates or if not relating to any department it may be signed by the Clerk of the Council and any Ordinance so signed shall upon promulgation have the full force and effect of law and it shall be placed before that session of the Legislative Assembly immediately succeeding the promulgation of the Ordinance to confirm, amend or rescind."

This section reflects part of clause 50 of the Constitution:

"No Ordinance which may be passed by the King and Privy Council shall have any effect until the signature of the minister to whose department such Ordinance relates is affixed thereto and if such ordinance shall be illegal such minister alone shall be responsible and when the Legislative Assembly shall meet it may confirm or amend such Ordinances and make them law or rescind them."

It should be noted that the power of the Clerk of the Council to sign, as provided in section 8 of the Act, is not included in the constitutional provision. No point was taken over the extra power given by section 8 despite the absolute terms of the responsibility placed on the minister by clause 50 of the constitution.

The statement of claim referred to the provisions of section 7 (a). The defence was that the Ordinance was a valid law duly enacted pursuant to section 7 (a) and it was pleaded that the provisions of sections 7 (a) and 8 are a complete answer to the plaintiffs' claims. The exercise of the prerogative was pleaded as an alternative defence as set out above. At the hearing, Mr Stanton for the defendants, relied principally on section 7 (d) as the authority for the Ordinance.

The reason can be seen from the discovered documents. The proposal that there should be such an Ordinance was supported by a written submission, dated 3 April 2003, from the Attorney General and Minister of Justice to the members of Cabinet headed "Protection from Abuse of Freedom Ordinance 2003". I set it out in full.

"Hon Cabinet Ministers are aware that all actions and exercise of Executive powers under the existing laws, is subject to judicial review. The policy decision made by Cabinet and Privy Council under the Order-in-Council of 7 March 2003 was to prohibit the importation of the Taimi 'o Tonga newspaper. The decision of the Court has been not been given. Appeal against the preliminary rulings of the Court that it has power to review an Order in Council under the Prohibited Publications Act is also pending and against the Court's refusal of application for security of costs. 

Based on all written and verbal information received by Cabinet, it is proposed that an Ordinance be recommended for Privy Council consideration. This Ordinance enacts specific legislation for the protection of the King, the Royal Family, the Government and the people of Tonga from the abuse of press freedom.

The press constraint (or otherwise) of the Constitution is contained in Clause 7, which reads:

'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.' (my emphasis)

The law authorises the King in Privy Council to make laws by Ordinance while the Legislative Assembly is not sitting: Clause 50 of the Constitution and section 7 of the Government Act. Section 7 (d) of the Government Act reads as follows:

'7. The King and the Privy Council may between the meetings of the Legislative Assembly pass Ordinances –

(d) enforcing the prerogative of the King which have been proposed by the King'.

The appended draft Ordinance, though similar in nature to the Prohibited Publications Act, is specifically framed within the ambit of Clause 7 of the Constitution, i.e. the exceptions to the freedom of the press. The protection afforded by this Ordinance is to protect the King and the Royal Family, the Government, and the people of Tonga from the abuse of press freedom. The authority is given to Cabinet to amend the list in the Schedule of undesirable publications from time to time, by Regulation. It is also proposed that the opinion of Cabinet whether to act under this enactment or not, shall not be subject to judicial review." 

The recommendation is then set out.

I deal with the prerogative under section 7(d) first. 

The Royal Prerogative 

The defence submits that the passing of the Ordinance was an exercise of the Royal prerogative pursuant to section 7 (d). The submission continues that "the Royal prerogative is regulated by law: that is by common law and above all by statute as is exemplified in the provisions of the Government Act, section 7 (d). In the Tonga scenario the Royal Prerogative has not been taken away by statute and it still gives the Crown certain primary law-making powers. Examples are the Orders in Council and the Ordinance promulgated by the Council on 4 April 2003.... It is submitted that the Prerogative remains an important reserve power of the Kingdom as exercised by the council. So put, we submit it is an important reserve power of Government."

With respect, those submissions confuse prerogatives personal to the Sovereign and the prerogative power vested in the Crown as part of executive government.

Prerogative power is power which is possessed by the Crown but not its subjects. It was based on the supreme sovereignty of the Monarch and the concept that the King can do no wrong and derives from the common law. It has been pointed out that, although the courts may use the term 'prerogative' in this sense,

"they have adopted the habit of describing as 'prerogative' every power of the Crown which is not statutory, without distinguishing between powers which are unique to the Crown [as a natural person] such as the power of pardon, from powers which the Crown shares equally with subjects because of its legal personality, [as a corporation sole] such as the power to make contracts, employ servants and convey land." Wade and Forsyth, Administrative Law, (8th Ed) at 222.

The learned authors later point out that "a true prerogative power, such as the power to declare war or to create a peer, involves something which no subject may do".

When he first ruled Tonga, King Tupou I clearly had many absolute powers but, as I have mentioned in the earlier case, with the introduction of the Constitution of 1875, he ceded many of those powers and declared that he intended that his duties should be carried out in accordance with the Constitution. It can be seen that a number of prerogatives are set out in the Constitution. There was some discussion by counsel whether or not any royal prerogatives existed before that Constitution and whether, therefore, they were preserved in the Constitution or created by it. I do not consider it necessary to resolve that question.

The modern position of the prerogative is that it is limited by the common law and the Monarch can claim no prerogative that the law does not allow. When the prerogative is defined by statute, as occurs in our Constitution, it is thereafter subject to that law.

It is difficult to find a clear definition of the prerogative. It has been attempted in numerous cases and has produced many fine declarations tending, all too often, to make for more confusion rather than for clarity. I resist the temptation to join in.

Under the law in Tonga, I am satisfied any prerogative powers are defined in, and governed by, statute. They fall into two distinct groups: those which are clearly stated to be the prerogative of the King alone, which I shall call personal prerogatives, and those which are executive acts of the Crown (with or without the personal involvement of the King), exercised by the Privy Council, Cabinet or other government departments, which I shall refer to as executive prerogatives. 

The question of whether or not a prerogative exists is a matter of law and the courts must decide in any disputed case. If the prerogative is a personal one, the courts have no jurisdiction to question the manner of its exercise. If it is an executive prerogative the court may determine the extent of it and the manner in which it is used.

The claim by the defence that the enactment of the Ordinance was an act of state and not subject to the scrutiny of the court and that its effect, in relation to the first and second plaintiffs as foreigners, also took it outside the cognisance of the court seems further to confuse the issue. I consider it shows a misapprehension of the nature of act of state.

An act of state is an act done in relation to another state or in relation to an individual who is not within the allegiance to the Crown. That is not this case. It is true that this Ordinance was clearly directed at the first and second plaintiffs both of whom are foreigners but it was part of the domestic law of Tonga and had its effect in Tonga on the distribution of the Taimi in Tonga.

Clearly, as the submission to Cabinet of 3 April shows, Privy Council passed the Ordinance as an exercise of the power given under section 7 (d). The defence case is that this was, itself, an exercise of a personal prerogative.

I accept that the reference in subsection 7 to 'the prerogative of the King' is clearly to a personal prerogative but it does not create a prerogative right to pass an ordinance as appears to be the defence submission.

The power to pass ordinances is a statutory one given to Privy Council by section 7. It is a limited power to be used only between meetings of the Legislative Assembly. Subsections (a) to (e) further limit the circumstances in which it can be exercised.

The ungrammatical wording of the second part of subsection (d) is not clear but I consider the meaning of the whole passage is that, when the King requests it in relation to a particular prerogative, Privy Council may pass an ordinance to enforce that prerogative. An example might be where the King wishes to declare martial law or to consent to a royal marriage and considers that any necessary statutory provisions cannot await the next session of the Assembly.

As I have already pointed out, I am satisfied that the intention of Tupou I was to codify and limit the King's personal prerogatives and so I cannot accept that the meaning of the second part of subsection (d) is to give the King the power to propose the creation of new personal prerogatives. However, whether or not I am correct about that, the subsection clearly does not provide a prerogative power to pass ordinances. What it does is to limit the power given by section 7 to passing ordinances necessary to enforce an existing prerogative.

The Ordinance did not enforce any personal prerogative of the King and insofar as Privy Council passed it under subsection (d) it was clearly ultra vires the section and is therefore void.

However, despite the lack of any evidence that there was any other basis for the Ordinance, counsel have both directed their submissions to subsection (a) and I consider I should deal with that.

That subsection gives Privy Council the power to pass ordinances

"(a) enacting regulations which may be required in consequence of circumstances arising between Meetings of the Legislative Assembly".

Mr Harrison points out that provision was first enacted in the early years of the last century at a time when communication and travel were very different from the situation now. It was a time when an unscheduled recall of the House would necessarily take weeks rather than days. The power provided under section 7 was to cover a situation which needed regulation pending such a sitting. It was a sensible and necessary power of the executive government to enable it to govern the country effectively. Equally it was a law making power that was clearly intended to have only temporary effect until the House could properly consider the new law, as section 9 ensures will happen.

With modern travel, it is hard to envisage any serious problem that could not be dealt with now by convoking the Legislative Assembly at very short notice using the personal prerogative of the King under clause 38 of the Constitution. Any laws necessary to facilitate this could, of course, be passed by ordinance under the power given by subsection (d).

If Privy Council had considered passing the Ordinance under the power given by subsection (a) it would have had to determine whether the banning of the Taimi was required as a consequence of circumstances arising between meetings of the Legislative Assembly. As I have stated, the evidence before the Court is that of the earlier case together with the discovered documents to which reference has already been made.

The evidence in the earlier case was that the reasons for the attempts to ban the Taimi had been building up over a period of more that a year. The first steps to limit the newspaper's ability to collect news of government matters was taken as far back as 1997. The first written report by the Minister of Police stating clearly his disquiet at the content of the newspaper and its effect on the members of the public was placed before Privy Council in March 2002. He submitted a further report in May of the same year and there was a report from the Special Branch made on 11 November 2002 when the Legislative Assembly may still have been sitting although I have no evidence of the date the session ended that year.

The circumstances which had clearly occurred after the close of the last meeting of the Assembly were the attempts to ban the newspaper and the reports bringing the earlier evidence together in support of that decision. Those circumstances, it should be clearly remembered, did not include the judgment of this Court which rendered those bans ineffective. Although the meeting of Privy Council was held at about the same time as the judgment was delivered, there is no evidence that it was considered as one of the circumstances necessitating the Ordinance. What Privy Council considered were the report of the Minister of Justice and the decision of Cabinet recommending the Ordinance - both of which took place the day before the judgment was delivered.

There is, in fact, no evidence that Privy Council purported to act under subsection (a) but, as counsel have addressed me on it, I state that I am satisfied that, had it done so, it would not have been a sufficient reason for the use of that power because there was no circumstance which had arisen requiring an Ordinance which simply restated the terms of an Act under which there was already an existing prohibition by Order in Council. It would, therefore, have been ultra vires section 7.

The Constitutional Challenges

As I have stated there were other grounds of challenge to this Ordinance. Whilst the decision that the Ordinance is ultra vires the section is sufficient to determine the case, I must deal with them but can do so briefly.

It is necessary to start by reminding oneself again that there is, as far as the constitutional challenges are concerned, no evidence beyond that heard in the earlier case. Nothing had changed by the time Privy Council considered the recommendation based on the Cabinet decision of 3 April 2003. The bans under the Customs and Excise Act and the Prohibited Publications Acts were still in place. There is no evidence, or even a suggestion, that the newspaper had added to the situation which had previously caused the Government sufficient concern to impose the three bans.

Counsel for the defence, properly, makes no suggestion that this Ordinance was passed for any purpose other than the banning of the Taimi 'o Tonga from the Kingdom.

In the earlier case, I considered all the evidence and I have no reason to find differently in this case on the same evidence. I repeat some of my findings:

"What became clear as the evidence unfolded was that the concern of the members of Cabinet was that the newspaper had a political agenda to change the system of government in this country. Although concern was expressed at the claimed suggestion of violent overthrow, I am satisfied that the true reason was Cabinet's concern at the effect of the political criticisms of the Government expressed by this newspaper and the effectiveness of its dissemination of those views. Central to that concern was, I accept, a deeply felt mistrust of a paper which can attack the institution and the personalities of the monarchy. ... It is this general suspicion of any attempt to criticise the King or the Government which clearly was irking the members of Cabinet and the others who had reported to them.

It is only too apparent that the overriding concern of the Ministers was that the Taimi had a political agenda that opposed the present political arrangements in the country."

I pointed out that: 

"... the terms of clause 7 ... make it lawful for every man to speak or write his opinions. ...This is the right of every person under our Constitution subject only to the restriction that, if the opinions expressed offend against the law, then sanctions may be sought under that law. If the impugned articles meant what the witnesses claimed they did mean, that is the sanction one might have expected to see used to prevent the criminal acts rather than such an overall prohibition to try and remove what was clearly a source of irritation to Government.

It has been suggested that the concluding words of Clause 7 mean that the direct or implied criticism of the King ... is not protected under the freedom of the press.

The 'laws for the protection of the King and the Royal Family' clearly means any laws which have the express purpose of protecting the King and the members of the Royal Family from opinions and statements spoken, written or printed. ... Where statements made offend against those laws, the person making them may be charged under the relevant law and will not be able to claim the protection of clause 7.

There is no question that, if a paper breaches the criminal law, the protection of freedom of speech will have to be tested in relation to the circumstances of the case in a court of law."

I concluded:

"The effect of these orders [i.e. those in the earlier case] was the imposition of a blanket ban on a newspaper which had been sold in the country for a long time because it had a political agenda which aimed to change the system of government in this country. I have no hesitation in saying that an attempt to muzzle a paper simply because it expresses views contrary to, or critical of the policies of the government in power is a blatant and serious abuse of clause 7."

That conclusion applies to the present case. This Ordinance was not an attempt to pass a law to protect the King, Royal Family, Government and people of Tonga from any abuse of press freedom but an ordinance passed for the sole purpose of banning this specific paper for the selfsame reasons that had lead to the imposition of the other bans which, it must be remembered, were still in full force and effect at the time of the Privy Council meeting at which this Ordinance was passed.

The requirements of natural justice.

In the earlier case, I dealt with the requirements of natural justice in reference to the various Orders passed under the relevant existing acts. In this case, Privy Council purported to pass a new law. I am far from sure that the Legislature or any other lawmaking body is required to observe the rules of natural justice in relation to the new law and its effect on the public. However, this aspect of the matter has not, I think been adequately argued before the Court and I decline to consider it further. 

The Power under the Ordinance

Before leaving the case, I would refer to the actual power granted under the Ordinance.

I have set out the terms of section 6 of the Ordinance above. It will be seen that it gives Cabinet power to delete from or add to the publications listed in the Schedule but that may only be done if, in the opinion of Cabinet, such action is for the protection of the King, the Royal Family, the Government or the people of Tonga.

When a statute grants a power, the manner in which, and the basis on which, it is exercised depends on the terms of the grant. For that reason, it is necessary to define the extent of the power and that is especially important if the power is to remove, modify or change existing rights of others. This Ordinance grants the power to delete from or add to the list of publications. It is a power to ban any publication yet the only restriction on the use of that power by Cabinet is that the action must be perceived to be for the protection of the King, Royal Family, Government or people.

Although the long title of the Ordinance states it is to protect the various institutions named from abuse of press freedom, that is never stated in the Ordinance.

Any act which gives a power to take away rights must clearly define the circumstances in which the power is to be used. Any attempt to exercise it outside the specified limits will be ultra vires and void.

As the Ordinance stands, it appears to give Cabinet an unlimited right to ban, by adding to the Schedule, any publication, good or bad, simply because the Cabinet considers such a ban would in some way protect the King, Royal Family, Government or people. There need be no other reason for that conclusion. There is not even a requirement that Cabinet should consider it necessary.

The only requirement is that the effect will be to protect any of the institutions named and subsection (3) would then prevent any review of such a draconian power by the courts. 

The Result 

I make the following orders:

1. I declare that the Ordinance is unlawful and invalid

2. I order certiorari to quash the Ordinance

3. I decline to make the declaration sought that sections 7 (a) and 8 of the Government Act are inconsistent with the Constitution

4. I decline to order the injunction sought for the same reasons as were given in the earlier case.

Finally, I have not ruled on the challenge to the joinder of the first defendants. I consider that their inclusion in the judicial review proceedings, represented as they were by the same counsel as appeared for the second defendant, caused them no difficulty. The point was only briefly referred to and counsel may wish to argue it further. 

I give leave to re-apply to have them dismissed from the action if that order is sought and proper application made. For that reason, whilst I order the costs of this part of the action shall go to the plaintiffs, I leave it to the end of the action for damages for the decision by whom they shall be paid.