Whistle blowers and media freedom under attack by Tonga Government

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By Kalafi Moala

Nuku’alofa, Tonga – The Government of Prime Minister Pohiva Tu’i’onetoa is targeting whistle blowers and those who may leak government information by issuing 8 regulations in an infringement notice via the Ministry of Communication and Information. The  Communication and Information portfolios are under the multi-tasked MEIDECC government ministry.

But media outlets and journalists in Tonga have reacted strongly to this infringement notice, claiming that certain sections would clearly violate the provisions of Clause 7 of the Constitution, which provides for media freedom.

These regulations were issued on 21st May in the form of an infringement notice, which months later, they have caught the attention of the media and the public. 

Since they are regulations issued under the jurisdiction of the Ministry, and passed by Cabinet, they do not need to be debated or voted on in Parliament.

Regulations are different from legislation. Any department can issue regulations to enforce certain requirements within their jurisdiction. A good example of this is the Police Department issuing traffic offense tickets to those who violate traffic rules. But whatever rules are set up must always be in line with the law and must never be in contradiction with the Constitution.

Legislations must be passed as bills in Parliament, and become Acts of Law when signed by the King. 

The Declaration issued by Poasi Tei, Minister of MEIDECC, claims that the Minister is authorized to make such a Declaration as in Section 162 (7) of the Communications Act 2015, which became effective on 18th February 2016. The Communications Act 2015 came into being during the term of the previous Government, in which Poasi Tei himself was a Minister.

The regulations declared was a Cabinet decision. Parliament did not have to vote on it, and needed no approval from the Privy Council. The regulations were to be enforced by the issuing ministry, MEIDECC.

In the press statement that was issued on the Declaration by MEIDECC, it says “this Act has been consulted on and passed in 2016.”  It also says “there is no requirement in the Act that requires the Minister to consult stakeholders before issuing the Declaration.”

Here are the 8 regulations in the Declaration and the penalties for infringement: 

  1. Section 24 – deals with unlawful publication of sensitive information ($2000).
  2. Section 30 – supply of communications services without authorization ($2000).
  3. Section 35 – non compliance with license conditions ($2000).
  4. Section 43 – provision of false and misleading information ($4000).
  5. Section 105 – for unlawful supply of content application services ($2000).
  6. Section 156 – for accidental damage to communications facilities ($1000).
  7. Section 159 – for general penalty ($2000).
  8. Section 169 – for unlawful disclosure ($2000).

Pesi Fonua, Senior Journalist and co-founder of Matangi Tonga Online, informed the Media Association of Tonga (MAT) that his news organization covered the news about the Regulations Declaration. “ It is going to be like issuing a traffic offense ticket, you either pay for it on the spot or go to court and presumably it will cost you more.” He also said: “As for me, I am waiting for them to issue me with a ticket so that we can go to court, and sort it out there.”

A statement from Taina Kami Enoka, President of MAT says: “We strongly oppose the government’s move on 21st May, 2020 to introduce the harsh communications (Infringement Notice Regime) Declaration 2020.” The statement also says: “It is noted also that what can be defined as ‘unlawful sensitive information’ could be interpreted as infringement of Clause 7 of the Constitution, Freedom of the Press.”

The MAT’s statement contradicts MEIDECC’s assertion that the Minister is not required to consult stakeholders, calling the deliberate repudiation, “deplorable”. “That the Media Association of Tonga were not consulted in the process, which we strongly believe affects our media freedom, is deplorable. This defeats our purpose of working closely together with the Government and to build a stronger relationship.”

In a meeting of the executives and some members of MAT at the beginning of the week, it was unanimously agreed that a strong worded letter be sent to the Minister in objection to the issuing of the regulations, and to call for a rescinding of the regulations. Great concern was expressed on the first of the regulation (Section 24) which deals with “unlawful publication of sensitive information”.

What defines “sensitive information,” it was asked? There was no definition given on the infringement notice by what is meant by “sensitive information.” Serious concerns over Government or the enforcer of the regulation, would end up defining what “sensitive information” is to fit the charges brought on anyone who is alleged of infringement.

The second part of the infringement notice (section 30) deals with “the supply of communications services without authorization.” This could bring into question anyone who runs a radio broadcast through the internet without the required registration of broadcasting operations in Tonga.

This may also bring into contempt anyone who communicates such as running a facebook page or website without authorization by local authorities.

Taking the regulations at face value is problematic to those who fight and stand for media freedom. But further analysis of each of the regulations bring the greatest of concern for a deliberate attempt by the Government to violate media freedom which is provided for by the Constitution.

Clause 7 of the Constitution declares: “It shall be lawful for all people to speak, write, print their minds and opinions.” And even before affirming that this does not nullify the law relative to libel and the law for the protection of His Majesty and the Royal Family, the clause went further in stating that “no law shall be enacted to forbid this forever.”

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