IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CV.124/2003

BETWEEN:

1. LALI MEDIA GROUP LIMITED.
2. FILOKALAFI ‘AKAU’OLA
Plaintiffs

AND:

1. SIOSIUA ‘UTOIKAMANU
2. THE KINGDOM OF TONGA
Defendants.

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr S Tu’utafaiva for the applicants/plaintiffs
The Solicitor General and A Kefu for the respondents/defendants

Date of Hearing: 10, 12 and 13 March 2003
Date of Ruling: 17 March 2003

RULING

The first plaintiff is the publisher and distributor of a newspaper “Taimi ‘o Tonga” which is published in New Zealand and distributed primarily in Tonga and New Zealand but also in Australia and the United States of America. The second plaintiff is the manager of the Tongan operations of the newspaper.

On Wednesday, 26 February 2003, by a letter addressed to the second plaintiff and copied to the first plaintiff, the first defendant, in his capacity as Chief Commissioner of Revenue, gave notice in the following terms:

“You are hereby given notice, that pursuant to section 34 of the Customs and Excise Act (Cap 67), the publication “Taimi ‘o Tonga” is as of the date of this letter a prohibited import into the Kingdom of Tonga.”

Following two letters the same day from the plaintiffs’ lawyer seeking with reasons a “very urgent” temporary or permanent revocation of the order, the first defendant confirmed receipt of the letters and reiterated “The decision … stands. That decision shall stand until revoked.” He went on to add:

“The reasons for the decision made are according to Government policy and specifically that:

(i) 	It is a foreign paper owned and published by a foreigner.
(ii) 	It is a foreign concern with a political agenda.
(iii) 	The continuous standard of journalism is unacceptable”

The letter concludes:

“The said decision shall be enforced.”

The following day the first defendant, acting in the same capacity, published in the Gazette a declaration under another provision of the same Act:

“In exercise of the powers vested by section 35 and Schedule II Part I (7) of the Customs and Excise Act (Cap 67), the Chief Commissioner of Revenue hereby DECLARES that all Editions, Volumes or part thereof of the newspaper “Taimi’oTonga” to be seditious or advocating violence, lawlessness or disorder.”

A copy was sent to the plaintiffs with a covering letter dated 22 February bearing what appears to bear a facsimile date of 26 February 2003 but which was presumably sent on 27 February 2003.

On Thursday, 6 March 2003, the plaintiffs filed an action for judicial review, damages and injunctive relief and, at the same time, applied ex parte for leave to apply for judicial review and for interim relief in the form of an order suspending the two orders. I considered such an application should be heard inter partes and, on the same day, listed a hearing of the application on Monday, 10 March 2003.

In the meantime on Friday 7 March 2003, in a special supplement of the Gazette, the following Order in Council was published:

“IN EXERCISE of the powers vested by section 3 of the Prohibited Publications Act (Cap 54), His Majesty in Council hereby PROHIBITS the importation of any issue of the publication of “Taimi ‘o Tonga” or part thereof.”

By a letter posted the same day to the second plaintiff, the Attorney General stated that the matters considered by Privy Council in reaching that decision “included the following:

1.	The newspaper is involved in anti-attitude and propaganda against the Monarchy and the Tongan Government. It is committed to the removal of the present Institution of Government.

2.	The newspaper has caused considerable disaster, confusion and disaffection against the Monarchy and the Government.

3.	Over a period of time the newspaper produced articles on changes to the system of Government in this country. It has caused disaffection amongst the people.

4.	The newspaper published seditious materials.

5.	The newspaper is advocating and inciting violence, lawlessness and disorder.

6.	Complaints from individuals and groups, and a report from the Special Branch of the Ministry of Police were received.

7.	The standard of journalism is unacceptable.

8.	The newspaper is foreign owned and is published overseas and imported into the Kingdom.”

A copy of that Gazette was handed to the Court at the chambers hearing on 10 March. As a result, the plaintiffs sought to amend both their claim and their applications for leave and interim relief to include the new Order-in-Council.

Counsel for the defendants having withdrawn her earlier objection to any amendment of the statement of claim, I have given leave and have heard counsel on the question of leave and interim relief.

This case as a whole clearly raises matters of considerable importance to both parties. As a result, in order to allow an early decision on the orders banning importation of the newspaper, I have advised counsel that, if I give leave to apply for judicial review, I shall hear those applications separately from the remaining substantive claims. I have also, pending my decision on the application for leave, reserved March 24, 2003, to start the hearing and, in order to be prepared should leave be given, I have asked counsel to agree a timetable to allow a hearing to commence on that date. I am most grateful to counsel for the efforts they have made and for their willingness to hold to what will be a very tight timetable. 

Counsel for the respondent has challenged, inter alia, the Court’s right to review an order of the Privy Council. I have agreed to consider this as a preliminary point of law. If the court has no such power, it would affect the decision on interim relief because any order suspending the orders under the Customs and Excise Act would, as a result, become an exercise in futility. However I shall, in this interlocutory ruling, only give brief reasons for my decision and will give full reasons in my judgment following the full hearing.

The main contention of counsel for the defendants is that an order of the King in Council is not reviewable. She first bases that on the construction of clauses 30 and 17 of the Constitution:

“30. 	The Government of this Kingdom is divided into three Bodies-
1st 	The King Privy Council and Cabinet (Ministry);
2nd 	The Legislative Assembly;
3rd 	The Judiciary.”

“17. 	The King shall govern on behalf of all his people and not so as to enrich or benefit any one man or any one family or any one class but without partiality for the good of all the people of his Kingdom.”

Whilst I am not sure I follow the relevance of those clauses to that argument, I think what is being suggested is that the King is the head of Government and as such has prerogative power to make orders that cannot be reviewed by any subordinate body in the Kingdom. I do not accept that is the effect of clause 30. If the submission is that the three Bodies established under clause 30 are each subordinate to any which precedes them, it is clearly wrong. Although the Executive is placed first, the Legislative Assembly is not subordinate to it. It has the power to enact laws that bind the Executive. The Judiciary is also bound by those laws but it is not subordinate to the Legislature as a result and has the power to interpret any laws it passes.

Clause 30 enshrines the concept of the separation of powers which, as a safeguard of liberty, was one of the foundations of the American Constitution. The principle is that by keeping the three Bodies referred to in clause 30 separate, each will act as a check on the use of power by the others. It is clear that King Tupou I was aware of the doctrine and its adoption into the American Constitution when he gave Tonga our Constitution.

What is noteworthy about clause 30 is that it includes the King in the Executive. Clearly the Monarch is intended to take part in the actual government of his Kingdom. Clause 31 qualifies that to the extent that whilst the Government is under the King, it is subject to the Constitution:

“31. 	The form of Government for this Kingdom is a Constitutional Government under His Majesty…”

The provisions of section 2 of the Government Act (Cap 3) also recognise the active involvement of the King as a part of the Executive. Alongside the marginal heading “The Privy Council Executive Authority” it provides:

“2. 	The King in Council shall be the highest executive authority in the Kingdom and the Prime Minister shall be responsible for carrying out the resolutions of the Privy Council.”

It is clear that any decision of the Privy Council is a decision of the Executive in the Government of the Kingdom. Despite the conventional and properly respectful formula; “The King in Council…” or “His Majesty in Council…” which always prefaces resolutions of the Privy Council, it is important to appreciate that it is not a decision of the King which is being questioned but a decision of the Privy Council as the highest body of Executive Government. Other provisions of the same Act require a quorum of three Privy Councillors besides the King and give every Councillor the right to attend every meeting and discuss and vote on every question submitted to the Council. Privy Council decisions are clearly made by the Council as a whole.

The second point made by counsel for the defendants is that section 9 of the Government Act (Cap 3) makes all orders of the executive reviewable only by the Legislative Assembly:

“Every Regulation, Rule or Order, whether passed by His Majesty in Council, Cabinet, Prime Minister or Minister shall have full force and remain effective until rescinded by the Originating Authority or the Legislative Assembly. All such Regulations, Rules and Orders shall be placed before that session of the Legislative Assembly immediately succeeding the promulgation of the Regulation, Rule or Order for confirmation, amendment or rescission.”

I am afraid that misunderstands the role of the courts in cases of judicial review. All acts of the Executive Government are subject to the scrutiny of the court in relation to the propriety of the action itself and the manner in which it was made. The fact any such regulation, rule or order may only be rescinded by the body which made it or by the Legislative Assembly does not prevent the court from considering whether it was a legitimate act of the Government in the first place.

I am satisfied that the court has the same power to review Orders in Council as it has of any other executive acts of Government.

I now pass to the application for leave to apply for such a review.

The test the court must apply in determining whether to grant leave, in the circumstances of this case where there has been no suggestion of undue delay, is twofold:

1.	has the applicant a sufficient interest in the matter to which the application relates; and

2.	is the court satisfied there is an arguable case for review?

There is no challenge here to the plaintiffs’ interest in this matter.

The second test is one of arguability, not of the strength of the arguments although the court will only entertain cases where there is a serious question to be determined and would not give leave to pursue a frivolous case or one in which there is no possible chance of success.

The claims here in relation to all three orders are based on excess or abuse of the power given under the Acts in question and on breach of the rules of natural justice. The particular breach alleged is of the audi alteram partem rule that there was a failure to give the plaintiffs reasonable notice of the case it had to meet or opportunity to state any arguments against it.

I have read the affidavits in support of the application for leave and I am satisfied there is an arguable case on both grounds. I grant leave to the plaintiffs to apply for judicial review.

There remains the application for interim relief. When the court grants leave to seek judicial review it may grant such interim relief as appears necessary and just. Whether or not such relief should be ordered is discretionary and requires the court to consider the effect of any interim order on both parties.

The interim relief sought by the plaintiffs is a suspension of the orders prohibiting importation of the newspaper pending the final determination of the claim for judicial review.

It is pointed out that the newspaper, whilst having a significant circulation, is not a big operation and the loss of income that will result from even a short ban could result in it having to close its Tonga based operation and, if prolonged, possibly the whole company.

The test for the court in any application for injunctive relief at the interlocutory stage of a case is well established. The applicant must establish that damages would not be an adequate remedy and that the balance of convenience favours the making of such an interim order.

I am satisfied that, if the ban on importation remains over a prolonged period of time, the consequences for the newspaper in terms of lost readers, advertisers and income may be such that, even if they are eventually successful in their action, an award of damages would not be sufficient to restore it to the position it was in before the prohibition was imposed.

The manner in which the court is to determine the balance of convenience is difficult to state with any precision. The difficulty arises if the court makes what turns out to be the “wrong” decision in the sense of granting an injunction to the party which ultimately fails. I consider the correct approach is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in that sense.

Where the decision relates to judicial review, further matters arise for consideration which will not apply in an action solely between private parties. In judicial review, the court must bear in mind the wider public interest as expressed both by the representative position of the government and the effect the decision may have on the members of the wider public.

Clearly in a case of this nature, the element of public interest is relevant when deciding the relative risk of injustice. It applies both ways. The plaintiffs point to public interest in the freedom of the press and the right of members of the public to choose what they will read. They also point out that the difficulties the ban could cause to the newspapers continued existence will also affect that right of choice because it will remove what the plaintiffs claim is the only independent newspaper available in Tonga. The defendants point out that, whilst judicial review is not directed at the merits of the decision but the manner in which it was made, the fact remains that, if the reasons for banning the paper on the ground, for example, of sedition have substance, lifting the ban could cause far more harm to the public interest than would a temporary restriction of the public’s right to read a newspaper of its choice.

However in this case, any potential harm to either side is significantly reduced because the time the parties will have to wait for the review decision is very short. Clearly that is relevant to the plaintiff because the additional time they will be prevented from distributing their newspaper in Tonga in the interim is less likely to be critical. As a result, any risk of injustice is reduced if the prohibition remains but is later found to be unlawful.

Similarly, the short time would reduce any possible harm suffered by the defendants. I note that the orders made by the defendants are not expressed as relating to a specific edition of the newspaper as might be expected if there had been an immediately identifiable risk of sedition. They are couched in more general terms suggesting these have been views the authorities have held for some time. The sole ground for a prohibition under section 3 of the Prohibited Publications Act is that Privy Council considers it is in the public interest. The court would be hesitant to interfere with such a decision as part of an order for interim relief without knowing the grounds on which it was made but the reasons for that decision in this case have been set out in the letter from the Attorney General. They too do not refer to a specific item or edition but appear to be founded on a view the authorities must have held for some time. Yet it is clear that the newspaper has been imported into the Kingdom and distributed for many years and had its business licence renewed for the current year on 28 January 2003 only four weeks before the section 34 notice. All that points to a reduced risk of injustice to the defendants or to the public interest, should the prohibition be lifted and then be found to have been lawfully made.

Finally, where other factors appear to be evenly balanced, the courts have generally taken such measures as will preserve the status quo pending a final decision. This is because an order for interim relief is made before the court has heard the evidence or the full arguments of counsel. In those circumstances the court will only make such an order in a clear case. Where the injustice to each party, after consideration of all the factors including the time before a final decision will be reached, is finely balanced, it will not intervene.

The status quo is the situation immediately prior to the issue of the writ; in this case, the situation after the ban on importation was imposed.

The factors are finely balanced but I find that the short period of time involved before the hearing is the factor that finally determines the issue. In those circumstances, I consider the proper order is retain the status quo and to refuse the application for interim relief.

I make it clear that should that change for any reason, I shall reconsider the position.

The costs to date shall be in the cause.

NUKU’ALOFA: 17th March, 2003

CHIEF JUSTICE