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Tonga Argues Sovereignty In Free Press Trial

Tonga Argues Sovereignty In Free Press Trial

NUKU'ALOFA (Matangi Tonga/PIR/Pacific Media Watch): Lawyers on both sides of a judicial review of the constitutionality of a law passed in Tonga last year limiting news media today argued over the government¹s right to restrict its citizens free speech.

On the third day of the Judicial Review, challenging the amendment to Clause 7 of the Tongan Constitution and the introduction of restrictive media laws, attorney for the plaintiffs Dr Rodney Harrison finished his 77-page submission.

Harrison said that after government failed in its attempt to ban the importation of the Taimi 'o Tonga newspaper, it can only be conceived that it proceeded with a punitive and prohibition intention when it tabled bills to amend Clause 7 of the Constitution and to introduce the Media Operators and Newspaper Bill.

He also argued that the Media Operator's Act is unconstitutional and therefore invalid because it was voted on three times by the House and passed before Clause 7 of the Constitution was amended.

With regards to the Newspaper Act, he said that the Minister of Communication has an unfettered discretion with the issuance of Newspaper licences; but he said that the Act was not specific on what was considered to be fair, honest and independent in the content of a newspaper.

Dr Harrison on Monday disputed an affidavit by a Tongan Scholar, Dr 'Ana Taufe'ulungaki, who claimed that the Tongan culture and custom has a bearing on a Tongan interpretation of the Constitution.

Dr Harrison referred to speeches made by Tupou I, dubbed the "father of modern Tonga," when he said that the days when his word was law were of the past and now all Tongans were all equal under the law.

Harrison said that the Tongan culture couldn¹t be used as a tool to interpret the Constitution.

Meanwhile, defence attorney Paul Radich, leading a three-member legal team for the the kingdom of Tonga, today started with his two-volume submission.

Radich said that Harrison¹s submission dealt with history becaue of an out-of-court settlement between the Tongan Government and the the Taimi 'o Tonga, and that he would focus his submission on three areas: does the Tongan parliament have the sovereignty to amend the Constitution; was Clause 7 ever amended before; and did Parliament amend or not Clause 7 last year?

Radich then stressed the point that the Tongan parliament has the jurisdiction to amend Clause 7, because if it hasn't then it hasn't the sovereignty to make laws.

He said that the role of the court in a judicial review is to ascertain that the amendment of the Constitution follows proper procedures.

He said that for the court to probe into the purpose and the motive of the amendment "is outside the jurisdiction of the Court."

Radich said that for the court to pass a decision on the purpose and the motive of the amendment would be an involvement by the court in making a political decision.



PACIFIC MEDIA WATCH is an independent, non-profit, non-government organisation comprising journalists, lawyers, editors and other media workers, dedicated to examining issues of ethics, accountability, censorship, media freedom and media ownership in the Pacific region. Launched in October 1996, it has links with the Journalism Program at the University of the South Pacific, Bushfire Media based in Sydney, Journalism Studies at the University of PNG (UPNG), the Australian Centre for Independent Journalism (ACIJ), Auckland University of Technology in New Zealand, and Community Communications Online (c2o).

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