New Communication Laws in Tonga

Citation: Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm .

Pesi Fonua published an article entitled ‘Tongan Parliament Passes New Communications Bills’. This article focused on the passing of two new Communications Bills to regulate Communications in Tonga in 2015. Fonua explained that  these two Bills were passed unanimously by the Legislative Assembly, despite the members not having sufficient time to read the Bills[1]. The Bills were submitted by the Minister responsible for Communications Hon. Siaosi Sovaleni, whom stated that the Bills were ‘vital for the development of Tonga’s communications industry’[2].

Fonua indirectly expressed his concerns that the Bills were not properly considered by the Legislative Assembly nor was it consulted with the relevant stakeholders before it was submitted to the Legislative Assembly[3]. Hon.Sovaleni justified the urgency of the Bills in Assembly, by stating that the Communications Bill in Tonga is 15 years old and it needs to be updated to cater for the advances of technology[4].

However Fonua has valid concerns, these two Bills brings a lot of impact and substantive changes to the Communications industry. For instance, the  Communications Bill 2015  is to replace the Communications Act 2000  to regulate all communications services in Tonga.[5]  This Bill consists of 189 provisions as opposed to 127 provisions in the former Communications Act 2000,  the new Bill retains 75 sections from the former Act. The Communications Commission Bill 2015  is to introduce a regulatory body to regulate communications services in Tonga.

Firstly, the principal objectives of the Communications Bill 2015 is to establish a communications and regulation framework[6]; establish powers and functions of the Ministry of Communications[7], Regulator[8], procedures for the administration of the Act[9]; establish and promote fair and sustainable competition  in the supply and installation of communications services[10]; promote and protect the interest of consumers of communications services[11], promote efficiency of licensees[12], and ensure safety[13], quality and international compatibility[14].

In addition, Fonua raised concerns that sections 106 , 107 and 108 of the Bill limits an individual’s rights to privacy and freedom of expression[15]. Section 106 provides for take down notices, this allows the Minister responsible for Communications  upon a complaint or its own initiative [16]to issue a written take down notice directing the hosting service provider to take down any prohibited content.[17]in response to a complaint or its own initiatives. Prohibited content refers to indecent or obscene contents[18];  displays of excessive violence[19]; blasphemous[20]; treasonous or seditious[21]; defamatory[22] or contravenes the laws of Tonga[23].

Fonua stated that section 106 will allow anyone to report to the Ministry of Communication to take down a website that is giving out information that is decent for the community, and the Ministry can simply take it down[24]. Hence , this  is seen to breach a person’s rights to freedom of expression. Any person can complaint that a hosting service provider is hosting prohibited content, however the Ministry must first investigate the issue to identify whether the materials reported are prohibited contents before it can make a decision to take down that particular content[25]. However, this section is still consistent with Clause 7 of the Constitution of Tonga which provides for freedom of the press. This Clause allows all people to speak, write and print their opinions with no restrictions, as long as it does not contravene the laws of defamation, official secret, laws for the protection of the King and royal family[26]. Such opinions are not to post a threat to public interest, national security, public order, morality, cultural traditions, privileges of the Legislative Assembly and contempt of court.[27]

Furthermore Fonua raised concerns over section 107 of the Bill, section 107 of the Bill provides for opt-out filtering[28]. This section allows internet service providers to offer a family friendly filtering to families to deny and restrict access to content that is unlawful to possess, access and distribute  according to the law of Tonga[29]. However these features can be removed upon application to the internet service provider[30]. The internet service provider must verify that the customer is at least 18 years of age.[31]

Fonua stated that this provision allows the Minister mandatory filtering of internet content[32]. However it is important to note that the family friendly filtering is discretionary on a family. A family is not forced to have family friendly filtering, but this option is legislated to create an obligation with the internet service providers to provide this option for families. This is to protect children from having access to illegal and prohibited materials online.

Moreover Fonua raised concerns over section 108 of the Bill, section 108 of the Bill provides for mandatory filtering it allows the Ministry of Communications to ‘…determine a scheme to prevent access to child pornography..’[33]. Child pornography refers to any materials that shows a child engaged in sexual conduct[34];  a person engaged in sexual conduct with a child[35] or images of a child engaged in sexual conduct.[36] A child in this context is considered to be under the age of 14.[37]

Fonua stated that this provision will allow Commission to direct the Tongan service providers like Tonga Communications Corporation to block certain websites for the safety of the children. Fonua implies that mandatory filtering is an invasion of the persons privacy and right to information. However, the publication[38], production[39] and possession of child pornography in Tonga[40] is a criminal offence liable to a fine not exceeding $100,000[41] or imprisonment for a period not exceeding 10 years[42]. Hence child pornography is illegal in Tonga, so this provision is to assist with reducing the cases of child pornography. The Bill provides that the Ministry is to take into account Tongan cultural value and national values[43]; its impacts on internet service providers[44] and transparent schemes of access[45].

In addition, Fonua expressed concerns about the passing of the Communications Commission Bill 2015.  This Bill introduces a regulatory body called the Communications Commission to regulate and monitor communications services in Tonga[46]. There will be 4 members of the Commission, a Chairperson[47]; Deputy Chairperson[48]; and two other members whom one should be an ICT expert[49]. The members of the Committee will be responsible for the exercise of the powers[50], functions[51] and duties of the Commission[52]. The appointments committee for the commission consists of the Minister responsible for Communications[53], an ICT Expert[54] and a representative of the industry consumers[55]. Fonua’s concerns is that this is a newly independent body that is established to do the functions of the Ministry of Communications.

Nonetheless, the establishment of a separate Communications Commission is a new step for Tonga. The Commission is identified to be independent, so that it will be able to make independent decisions about Communications in Tonga. The Commission will act as a Regulator with functions to advise the Ministers on all matters[56], monitor and report to the Minister of significant issues[57], responsible for the control and administration of licensing[58] amongst others. The Commission has the power to start a proceeding for recovery and issues order with remedial directions[59]. It also has the power to set the fees for the applications required under the Communications Bill 2015[60].

Taking into account the discussion above, Fonua has raised valid issues about whether such Bills are giving too much powers to the Ministry of Communications. These communications mechanisms are fairly new to Tonga, and its implementation will be a different process. The relevant stakeholders like local service providers, media outlets and the general public were not properly consulted when this Bill was drafted. Only time can tell whether the Tongan service providers have the necessary means to meet the demands of the Communications Bill or the Communications Commission Bill.

However Tonga is not the only Pacific Island state that is taking preventative measures on communications. The Nauruan government recently introduced Cybercrime Act 2015  to criminalize child pornography, with a penalty of 10 year imprisonment[61]. This Act also imposes a monitoring obligation on service providers to store information that indicates illegal activity.[62] Nauru’s new Act was also met with uproar from the public, who claimed that the Act limits freedom of speech.[63] The Nauru government responded by stating that the limitations is to protect children from being vulnerable on cyberspace.[64]

In conclusion, contrary to Fonua’s implications that the Communications Commission Bill 2015  and the Communications Bill 2015 limits freedom of speech and rights to privacy. I believe that the two Bills enhances Tonga’s ability to ensure that Tonga’s communications services are up to date , so as not to compromise and leave our children and people in general vulnerable to online attacks. The Bills affords people their rights, at the same time provides them with a protective mechanisms. It also protects the country from cyber communication influences and harm. Tonga is not alone in the Pacific with this concern. However it is important that the Tongan government notes the importance of consultations to discourage misunderstanding when laws are being passed.

*Note

The Communications Act 2015 & Communications Commission Act 2015 were passed by the Legislative Assembly on 6 October 2015 and it received Royal Assent on 18 February 2016. The Communications Act 2015 was proclaimed into force by Cabinet on 1 March 2017 in accordance to section 1(2) of the Communications Act 2015.

[1] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[2] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[3] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[4] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[5]Communications Bill 2015 (Tonga) Long title.

[6] Communications Bill 2015 (Tonga) s.5(a).

[7] Communications Bill 2015 (Tonga) s.5(b).

[8] Communications Bill 2015 (Tonga) s.5(c).

[9] Communications Bill 2015 (Tonga) s.5(d).

[10] Communications Bill 2015 (Tonga) s.5(e).

[11] Communications Bill 2015 (Tonga) s.5(f).

[12] Communications Bill 2015 (Tonga) s.5(h).

[13] Communications Bill 2015 (Tonga) s.5(i).

[14] Communications Bill 2015 (Tonga) s.5(j).

[15] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[16] Communications Bill 2015 (Tonga) s.106(1).

[17] Communications Bill 2015 (Tonga) s.106(2).

[18] Communications Bill 2015 (Tonga) s.98(a).

[19] Communications Bill 2015 (Tonga) s.98(b).

[20] Communications Bill 2015 (Tonga) s.98(c).

[21] Communications Bill 2015 (Tonga) s.98(d).

[22] Communications Bill 2015 (Tonga) s.98(e).

[23] Communications Bill 2015 (Tonga) s.98(f).

[24] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[25] Communications Bill 2015 (Tonga) s.106(2).

[26] Act of Constitution of Tonga [Cap 2] (Tonga) Cl.7(1).

[27] Act of Constitution of Tonga [Cap 2] (Tonga) Cl.7(2).

[28] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[29] Communications Bill 2015 (Tonga) s.107(7)(a).

[30] Communications Bill 2015 (Tonga) s.107(3).

[31] Communications Bill 2015 (Tonga) s.107(4)(a).

[32] Pesi Fonua, ‘Tongan Parliament Passes New Communications Bills’ (2015) http://pidp.eastwestcenter.org/pireport/2015/October/10-09-02.htm (Accessed 15 November 2015).

[33] Communications Bill 2015 (Tonga) s.108(1).

[34] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(i).

[35] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(ii).

[36] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(a)(iii).

[37] Criminal Offences Act [Cap 18] (Tonga) s.115A(3)(b).

[38] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(a).

[39] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(b).

[40] Criminal Offences Act [Cap 18] (Tonga) s.115A (1)(c)

[41] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(i).

[42] Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(i). Corporations are fined not exceeding $250,000 Criminal Offences Act [Cap 18] (Tonga) s.115A(1)(c)(ii).

[43] Communications Bill 2015 (Tonga) s.108(3)(b).

[44] Communications Bill 2015 (Tonga) s.108(3)(d).

[45] Communications Bill 2015 (Tonga) s.108(3)(e).

[46] Communications Commission Bill 2015 (Tonga) Explanatory Notes.

[47] Communications Commission Bill 2015 (Tonga) s. 7(1)(a).

[48] Communications Commission Bill 2015 (Tonga) s. 7(1)(b).

[49] Communications Commission Bill 2015 (Tonga) s. 7(1)(c).

[50] Communications Commission Bill 2015 (Tonga) s. 7(2)

[51] Communications Commission Bill 2015 (Tonga) s. 7(3)(b).

[52] Communications Commission Bill 2015 (Tonga) s. 7(3)(a).

[53] Communications Commission Bill 2015 (Tonga) s. 8(2)(a).

[54] Communications Commission Bill 2015 (Tonga) s. 8(2)(b).

[55] Communications Commission Bill 2015 (Tonga) s. 8(2)(c).

[56] Communications Bill 2015 (Tonga) s. 16(a).

[57] Communications Bill 2015 (Tonga) s. 16(b).

[58] Communications Bill 2015 (Tonga) s. 16(d).

[59] Communications Bill 2015 (Tonga) s. 17(c).

[60] Communications Bill 2015 (Tonga) s. 18 (1)(a).

[61] Cybercrime Act 2015 (Nauru) s.14.

[62] Cybercrime Act 2015 (Nauru) s.37(1).

[63] ‘Nauru government criticised over new law limiting free speech’(2015) http://www.abc.net.au/news/2015-05-14/nauru-introduces-law-curbing-dissent/6469202 (Accessed 15 November 2015).

[64]  ‘Nauru government criticised over new law limiting free speech’(2015) http://www.abc.net.au/news/2015-05-14/nauru-introduces-law-curbing-dissent/6469202 (Accessed 15 November 2015).

Disclaimer: This blog is for information purposes and it shares the authors own personal views. It is not to be used for research purposes. I also do not own any of the images on this blog.

Pacific Legal Policy Twinning Program

Citation: Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015).

The Pacific Legal  Policy Twinning Program, is an annual program conducted by the Australian Attorney General’s Department[1]. The program involves two months of intensive training in the Attorney General’s Department[2]. It is aimed at building the capacities of Pacific Island law officials to efficiently develop and implement good policy in order to combat crimes and corruption. It is focused on improving community and regional stability and security[3].

The program is focused on training senior officials from different Pacific Island Countries to develop legal policies and conduct legal policy development training[4]; conduct efficient legal researching and writing skills and conduct efficient project planning[5]. This program is competitive amongst law officials from different Pacific Island Countries, whom apply for the program with a proposed policy project to work on.

In addition, the program caters for two successful candidates to participate in the program, whom are commonly referred to as the “twins” to reflect the close collaborations between the Attorney General’s Department and their respective countries. The program consists of two major components, the first part of the program is focused on training the twins on the Legal Development Policy Course, and training the twins the train the trainer component of the Legal Policy Course. This is to allow the twin to return to their home country and conduct the course to other h officers. The second part of the program is focused on the twin’s proposed policy project. The twin is assigned a supervisor, who will closely assist the twin on the day to day basis of the project. The twin is also assigned a mentor, who is a senior public servant within the Attorney General’s Department with expertise in the area of the twin’s policy project. The mentor can also discussed careers paths and options with the twin. The twins at the end of the program are required to deliver the policy development course back in their home country and also implement to some extent their policy projects.

I had the privilege of participating in the program. Interestingly, this program was not always focused on policy. The twinning program was initially focused on legislative drafting, hence the twin would be based in the ACT drafting office, whereby they will be closely supervised and trained with their drafting skills. The program was revised in 2014 to focus on policy as a result of the outcomes of the 3^rd Meeting of the Pacific Legislative Drafters’ Technical Forum.

The 3^rd Meeting of the Pacific Legislative Drafters’ Technical Forum recognized that there is a need to improve the quality of policy for legislative proposals.[6] As a result the Attorney General’s Department in Australia developed the policy course to assist Pacific Island Countries with their policy formulation. This course has since been delivered in Australia, Solomon Islands, Samoa, Tonga, Fiji Tuvalu and Nauru.[7]

The Legal Policy course simplifies the policy process into a memorable jargon “OUTCOME”,  each letter provides a step for legal policy development. For instance “O” refers to Obtaining information about the problem[8], “U” refers to uncovering the key stakeholders[9], “T” refers to thinking ahead  and planning[10] ,“C” refers to creating available option for your policy[11],  “O” refers to Outreach[12], which refers to consultations with the community[13], “M” refers to making it happen or implementing the policy in the form of a legislation[14] and “E” refers to evaluation and monitoring of the policy to identify whether it is effective or not[15].

The Pacific Crime and Policing Section of the Attorney General’s Department facilitates the course, and any Pacific Island country can request the course to be delivered in their country. The course can be delivered as part of law officials continued legal education, or it can be focused solely on policy makers only. AGD works closely with the Pacific Islands Law Officers Network (PILON) in communicating to PILON members about policy issues and whether they would require assistance.

These attachments, like the Legal Policy Twinning Program is a way of enhancing the skills of legal professionals across the South Pacific. It allows legal professional to be exposed to a more professional working environment as compared to their individual countries, to examine and understand how work operates in Australia. Such programs assists with the development of legal professionals writing and legal research capabilities, by exposing them to trainings conducted by professionals. The trainings offered are not only limited to policy, research and writing, but it also offers trainings on how to conduct effective negotiations, understand the basic essentials required of a manager, understand how to effectively conduct presentation to communities. Such skills will help build the capabilities of the legal professionals involved. Hence upon their return to their home countries, these skills can be passed on to other officials, which increases the effectiveness and proficiency of work.

In addition the Legal Policy Twinning Program assists young professionals to create a “network “with other experts that may assist them and their countries with different projects. As part of the program, AGD also connects young professionals with academics in the Australian National University to encourage networking with academics. This gives young professionals an opportunity to be exposed and further develop their interests in certain areas, it also encourages young professionals to conduct research and also consider publication. The Australian National University Pacific Division encourages Pacific Islanders to conduct and publish research on different areas of law. This is a great opportunity for Pacific Islanders to use their projects to publish a research paper. Hence young professionals not only complete work for their countries, but they can also utilize their findings to publish a paper with their management’s consent.

Moreover the Twinning Programme allows young professionals to focus on their projects on issues of concerns for their countries. Due to the limited legal staff in the Pacific, most young professionals cannot focus on only one task. However participating in the twinning program affords them proper time and resources to carefully analyse the main issues on their projects. But at the same time, it allow them to learn and understand how the Australian government works. For instance , as a twin we were taken to observe Court proceedings, meet with the Chief Justice, Director of Public Prosecutions, Chairperson of the Law Reform Commission and other relevant stakeholders. This allowed us to learn how they conduct their work. This gave us an opportunity to identify best practices for our individual countries to follow. In addition, we are encouraged to write articles for the Talanoa Newsletter, which is published by the Pacific Islands Law Officers Network (PILON) to share our experiences with other countries.

However, such long term attachments can be challenging to young professionals at time due to the differences in practice and conflicts in standards. For instance, at the course of the program, the AGD may try and impose standards on Tonga that cannot be met, due to lack of resources or cultural aspects. Hence it is important as a young professional conducting long term attachments to keep in mind that learning new things does not mean that you can easily change the mindset and the way things are conducted in your individual countries.

In addition, it is important for young professionals to inform their mentors that their countries conduct things in a different way. It is important that they learn about different structures and ways to conduct work. But it is also important to keep in mind that there is a difference in culture, society and availability of resources. Young professionals should only look at ways of improving their current systems, but not reforming it entirely. Hence it is important that you own the work that you do whilst on attachment.

Moreover, as a former participant of the legal policy train the trainer, I feel that I do not own the work . For instance, with regards to the train the trainer legal policy development program, we have to conduct the training using standard PowerPoints and notes developed by AGD. It is always difficult to deliver work that is not your own. Trainings in Tonga need to be conducted in Tongan and English, hence it is important to include Tongan words on the PowerPoints for clarifications.

The twinning programme provides invaluable skills and resources that one cannot find in their own under-developed jurisdiction. However the onus is on the participant to use the resources at hand wisely and with proper discretion. It is also important that young professionals return to their home countries and share their experiences with AGD. This will create a domino effect and hopefully create a culture where people work harder and conduct effective legal policy work.

However, the twinning program offered by the AGD is a very effective program, as it allows the AGD to assist developing and under-developed countries with their policies. It also provides the AGD with a good position to indirectly influence other Pacific Island Countries with their policies and also to keep in check what these developing islands are doing. For instance the OUTCOME  steps for effective policy has been adopted in many countries like Tonga as a policy tool, hence it will provide uniformity in policy development in Pacific Islands.

In addition, the train the trainer programs allows the AGD to outsource itself. It is trying to encourage the Pacific Islands to own and conduct the program. Most Pacific Islands do not have policy training, hence the course will provide  an efficient means to combat this. The assistance provided by the AGD is very strategic, as it does not involve them conducting training continuously to many people. But they invest in a certain number of persons, and rely on them to conduct the delivery of the course. In a way, this allows participants in the Pacific Islands to feel that their own is conducting the training and its not foreign influence.

The Pacific Legal Twinning Program is an amazing opportunity for young professional to enhance their skills and knowledge through professional mentoring and assistance. It also gives them an opportunity to create networks and make positive changes upon their return to their home countries. These changes can increase the professionalism and create excellent deliverable outcomes for their home countries. Hence improving the ways Pacific Island societies can write policies and draft laws. A properly designed policy, will enact positive laws which will be beneficial to the society, decreasing crime and improve the productivity of society, which is what the Pacific Crimes and Policing Division is working towards[16]. This program will become an invaluable experience for a young professional and it should encourage  professionals to invest more and work harder for the benefits of their societies.

[1] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[1].

[2] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[2].

[3] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[3].

[4] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[4].

[5] Pacific Legal Policy Twinning Program (2015) www.ag.gov.au (Accessed 20 November 2015)[5].

[6]‘Draft Regional Action Plan for sustainable legislative drafting capacity building in Forum Island Countries’(2012)  http://www.pilonsec.org/images/stories/Documents/bregional_action_plan.pdf (Accessed 20 November 2015) 3.

[7] Dr. Marie Wynter, ‘Building institutional effectiveness- The Pacific Legal Policy Twinning Program’ Talanoa Newsletter (Apia, Samoa) 3 March 2015, 6.

[8] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[9] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[10] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[11] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[12] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[13] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[14] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[15] Georgia Hinds and Dr. Marie Wynter, ‘Strengthening policy capabilities to produce effective outcomes’ Talanoa Newsletter (Apia, Samoa) 3 March 2015,5.

[16] ‘Pacific crime and policing assistance’(2015) http://www.ag.gov.au/Internationalrelations/InternationalLegalAssistance/Pages/PacificCrimeAndPolicingAssistance.aspx (Accessed 20 November 2015).

Disclaimer: This blog is for information purposes and it shares the authors own personal views. It is not to be used for research purposes. I also do not own any of the images on this blog.

Convicts dumped in Tonga

Citation: ‘Convicts dumped in Tonga by New Zealand’ (2015) http://www.radionz.co.nz/international/pacific-news/289409/convicts-dumped-in-tonga-by-nz.

The Radio NZ website published an article entitled ‘Convicts dumped in Tonga by New Zealand’. The  article focused on discussing recent deportee Mr. Patrick ‘Unga’s manslaughter conviction in Nuku’alofa. Mr. ‘Unga was convicted in New Zealand in 2003 for murdering his fiance, after serving his time he was deported to Tonga in 2014, and within a few months he re-offended again.

The article discussed that New Zealand and other foreign countries are deporting serious Tongan offenders from their countries to Tonga, and as a result, these offenders re-offend and commit serious crimes like ‘Unga’s case. The Minister of Justice noted that these offenders are deported to Tonga with no notification to the Tongan immigration, Ministry of Justice or other relevant stakeholders. They are simply ‘dumped back without any notification’.

Deportation is defined by the International Organization for Migration as ‘the act of a State in removing a non-citizen from its territory after refusal of admission or termination of permission to remain.’ Foreign countries have different legislation stating the grounds for deportation, for instance in New Zealand, deportation orders can be made by the Minister of Immigration of Governor General under the Immigration Act 2009  on the grounds that a person is threat to national security or is convicted of a criminal offence.  Interestingly Mr. ‘Unga was sentenced in the High Court of New Zealand to life imprisonment, and the judge noted that he had no power to deport him, deportation will be based on the Minister responsible for Immigration’s discretion. Hence Mr. ‘Unga was later removed and deported to Tonga under the Immigration Act 2009  after 10 years of serving his term.

Majority of Tongan persons deported to Tonga are males in their 30’s.The most common offences committed by deportees are common and aggravated assault, robbery and theft and drugs.Most of the deportees have noted that they did not know their crimes will result in their deportation. Some of the deportees were permanent residence of the United States, New Zealand or Australia, but their residence was revoked upon the commission of the crimes. However, this is different if you were an intentioanl overstayer, you know that you will be deported. For instance, Mr. ‘Unga discussed in this article was an overstayer in New Zealand when he committed his first murder.

In addition, the deportation of individuals affects the Pacific Islands, as it leaves Pacific societies vulnerable to their crimes. For instance as stated in the article, there is no mandatory legislated process for dealing with deportees in Tonga. Deportees arrive in Tonga a free man, with no report to the police or immigration. It also puts Pacific Islands at risk of increased crime rates, because of the presence of more talented and prominent criminals in the country. There is insufficient evidence to support this statement, but it is evident in Tonga that Mr. ‘Unga is not the only deportee to re-offend. For instance Rex v Ngaue (Unreported, CR 98/11, Shuster J, 20 January 2012) the Defendant Ngaue, a deportee was charged and pleaded guilty to possession of an illicit drugs cannabis. The defendant informed the Court that he understands drugs are illegal, but he used it to ease pain from medical treatments.

However, it is important to note that deportations affects the life of the deportee. Deportees usually migrate overseas at a young age, between the ages of 5 to 10.Hence they cannot speak the Tongan language or they do not have any relatives in Tonga when they are deported.Some of the deportees were already married with children when they got deported, hence they are separated from their families and their families eventually break up or the wives would move back to live in Tonga with the deportee.

In addition, deportees are stigmatized when they return to their home countries, and they are labelled as “deportees”or “tipota” (this Tongan phrase is literally translated to “teapot”).Deportees are stigmatized  as being bad and continuing with the illegal activities.As a result deportees are the first to be blamed when a crime occurs in the village they live in. There is limited employment opportunities for deportees in Tonga and their stigmatization does not help.Moreover, deportees are watched consistently by the Tongan society and most of them are stigmatized because of their physical appearance for instance heavy tattoos could be viewed as unsafe.

It is important to note that these deportees can be leaving behind a wife and children.It will be very difficult for families that live apart to survive. As a result the child or children will grow up with one less parent. Children can also be stigmatized in school because they have a deported parent, and children can become rebellious and resistant to authority.

The lack of employment and financial support is usually the main cause of a deportee’s reoffending. For instance in the case of Rex v Kali (Unreported, CR57/07, 10 August 2007, Chief Justice Ford), the accused Kali was a deportee who was in charged taking part in the riots stealing from the shops in Tonga on 16 November 2006. During his sentencing, the Chief Justice noted that Kali was an overstayer in New Zealand who got deported to Tonga as a result of assaulting his girlfriend. He moved on to be convicted and sentenced to 4 years imprisonment for importing marijuana from Fiji on a fishing boat, then he escalated to riotious behaviours. This case reflects that deportees do not learn their lesson from being deported, some continue to offend and re-offend.

Due to the immense cultural shock, language changes and the introduction to an unfamilar environment, most deportess continue to result to drugs and alcohol abuse. This eventually leads them to re-offend and threaten the safety of individuals in society to unlawful acts of violence.

So what has the Tongan government done to combat this issue? Well the Tongan government has conducted a National Workshop on Deportees, to assist with the reintegration of deportees to Tongan society. The Tongan government has  Civil Society Organisations (CSOs) that provide programmes to assist deported persons, this is the Ironman Ministry Incorporated and the Foki ki Ápi  Deportation Reconnection Programme and the Tonga Lifeline Crisis, administered freely by the Free Weslyan Church.These two services offer deportees an opportunity to freely and openly talk about their situations and it provides deportees with counselling services.

How can Tonga support deportees? Tonga can support deportees by developing plans with relevant stakeholders to provide a program to address the employment and educational needs of deportees.Tonga should also consider developing closer networks and relationships with the foreign countries like New Zealand , Australia and United States, to ensure that it is aware of the number of deportees coming to its shores annually.

In conclusion foreign countries tend to believe that deporting deportees to their home countries solves the problems. However it does not, deportees create a new form of culture and more problems for their receiving home countries. The deportation of an individual does not affect only the life of the offending deportee but it also affects the lives of their immediate and close relatives. It also affects the lives of persons living in the receiving country as they are in fear that these deportees might re-offend. Hence there is a need for Tonga to strongly look at rehabilitation classes for deportees and social support for them to allow them to feel human, responsible and hopefully decrease rates of re-offending .

Disclaimer: This blog is the author’s personal opinions and is not to be used for research purposes.

First impeachment case in Tonga in 50 years

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).

I recently did some research on the impeachment process in Tonga and came about an interesting article on the Tongan Legislative Assembly website. The article was entitled ‘Hon. Lavulavu survives impeachment notion’. The article was focused on discussing the outcome of the impeachment charges made against member of Parliament, the Minister responsible for Infrastructure and Tourism Hon. Étuate Lavulavu.

Lavulavu’s impeachment charges was tabled into Parliament by Vava’u Noble Representative No.2 Lord Tuílakepa earlier in August this year.[1] The accusation for impeachment included nepotism and fraudulent practices with government equipment, human resources and finances.[2]

Impeachment to those who do not know is the act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[3] But the grounds on which an official can be removed do not have to be criminal in nature.[4] They usually involve some type of abuse of power or breach of the public trust.[5] Impeachment was first used in the British political system in the second half of the 14^th century.

The grounds for impeachment of any Minister or representative of the nobles and of the people  is laid out in clause 75 of the Tongan Constitution:

1. breach of the laws;
2. the resolutions of the Legislative Assembly;
3. maladministration;
4. incompetency;
5. destruction;
6. embezzlement of Government property; or
7. the performance of acts which may lead to difficulties between Tonga and another country.

The impeachment process in the Tongan Legislative assembly in set out in Rules 87 to 96 of the Rules of Procedure of the Legislative Assembly of Tonga.  Any member of the Legislative Assembly can move the Assembly to impeach another member at his own volition or as a result of a written complaint made by any Tongan subject.[6] The following diagram summarises the impeachment process in Tonga according to the Rules of Procedure:

The person impeached can be represented by legal counsel and attend his own trial.[7] The Assembly can appoint the member who made the motion for impeachment to prosecute[8] and prepare the articles of impeachment.[9] The Member can also engage legal counsel with the approval of the Assembly.[10]

The article explains that the impeachment charges was a result of complaints from former Ministry of Infrastructure employees that Lavulavu has misused public funds.[11] The Standing Privilege Committee found and recommended that there was sufficient evidence for a prima facie case on 19 August 2015. The next step was for the Assembly to vote, whether a proceeding for impeachment should continue.

However the Assembly took another 3 months for it to vote on this impeachment case. During the 3-month period Lavulavu has taken different measures to expunge charges. For instance, he appealed that the Standing Committee on Privileges members be replaced by his own nominees.[12] However this motion was withdrawn as a result of pleas from the Prime Minister.[13] He continued to threaten and call the Speaker of the House a “dictator”.[14] Even before the Standing Committee on Privileges presented their cases that there is a prima facie case against Lavulavu, he had managed to delay their report t obey read. For instance, Lavulavu requested that he have time to respond to the allegations. As a result he produced two responses which he later withdrew.[15] The members of the Standing Committee on Privilege was Lord Fusitu’a as chairperson, Minister of Justice, Hon. Vuna Fa’otusia, Minister of Finance, ‘Aisake Eke, Speaker of the House, Lord Tu’ivakano, Lord Tu’iha’angana and People’s Representative Mateni Tapueluelu.
However, this voting process was delayed 5 times as a result of as a result of pleas from Lavulavu and support from the Prime Minister to allow Lavulavu to respond to the allegations made against him.[16] At the course of the consistent battles in the Assembly regarding this impeachment case, the Prime Minister raised concern that Lavulavu as a result of the case might loose his seat in Parliament.[17]

Taking into account the procedures discussed above, Lavulavu managed to stall the process with different excuses. For instance, delay was always granted to allow him to prepare a defence for his case under natural justice. However at the end he never presented a defence and he never sought private legal representations despite the fact that he was entitled to it.

In addition, the article notes that the Prime Minister plead that the matter be dealt with by Cabinet, as impeachment is an Executive decision. This is not part of the procedure as laid out by the Constitution and the Parliament Standing Orders. The Constitution expressly states that the impeachment proceedings are to be presided over by the Chief Justice who decides on questions of law, whilst the final judgement and the questions of fact are all determined by the Legislative Assembly.[18]

Moreover, the article notes that Lavulavu had misinformed the  Assembly, by stating that he was never given an opportunity to respond. However he did respond, but he had withdrew his response from the House. The Finance Minister confronted him with this lie, as a result Lavulavu apologized, but he did not admit to lying.

However a majority of 12 to 9 votes saved Lavulavu from the impeachment proceedings. Surprisingly 3 of the members of the Standing Committee on Privileges voted against the impeachment proceedings, this is the Minister of Finance ‘Aisake Eke, Minister of Justice Vuna Fa’otusia and Member of Parliament Mateni Tapueluelu. The rest of the member voted for the impeachment proceedings.

Lavulavu stood for the election as an independent candidate, but joined the Prime Minister’s ‘Akilisi Pohiva’s party after the elections. It comes as no surprise that all the Prime Minister’s Ministers stood up for Lavulavu against an impeachment proceeding. The Prime Minister has also shown support for him all throughout the proceedings and supported him by pushing for delays in the voting process.

Lavulavu is the first Minister to be charged with impeachment in 50 years in Tonga. There has only been one case that mentions impeachment, this is Attorney General v Fusitu’a, ‘Akauola & Moala  [1997] Tonga LR 18, the case makes references to clause 75 (impeachment) of the Constitution. However the respondents to this case did not make any submissions that the Chief Justice at the time was in breach of clause 75. Nonetheless the Pro-democracy movement did move to have the Prime Minister Prince ‘Ulukalala Lavaka Ata impeached in 2012 for failing to present audited public accounts, but this failed.[19]

Impeachment cases are very serious, it does not require an indictment like civil and criminal cases.[20] A person convicted of impeachment can no longer retain his position as a Minister[21], cabinet ministers who are elected representatives shall loose their seat in the Assembly if he or she is impeached. In addition, even the King cannot grant pardons to a person who has been charged with impeachment.[22]

Tonga is the only Pacific Island that has provisions for impeachment in its Constitution. The other Pacific Islands have provisions for “recall” and “vote of no confidence”. Vote of no confidence is the formal legal method by which a legislative body, by a majority vote, forces the resignation of a cabinet or ministry[23] whereas impeachment is the act of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.[24]

Foreign jurisdictions including Australia and New Zealand do not have provisions for impeachment, however Commonwealth countries like India and the United Kingdom still provides for impeachment.

The grounds for impeachments in other jurisdictions is similar to Tonga, but other jurisdiction’s impeachment grounds includes high crimes which covers a wide range of misconducts including to misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty,  conduct unbecoming, refusal to obey a lawful order and ordinary crimes.[25]

In conclusion, the impeachment process will always be unpredictable as it is politicians judging another politicians.[26] Others may argue that Tonga’s impeachment clause is archaic and out of date. This is evident in the United Kingdom, where the last recorded impeachment case was in 1806.[27] I believe that the clause still serves a good purpose to promote transparency and accountability despite the fact that on the phase of it, we do not see transparency and accountability there. However, this provision can continue to be on Tongan laws to remind politicians that they can be held accountable for their actions. The process might appear time consuming, but it still gives the people the power to control and have a say on the people they elect to the Assembly.

[1] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[2] Pesi Fonua, ‘Motion to Impeach Tongan Minister Introduced in Parliament’ (2015) http://pidp.eastwestcenter.org/pireport/2015/August/08-18-12.htm (Accessed 9 November 2015).

[3] Black Law’s Dictionary (10^th ed, 2014) 870.

[4] Black Law’s Dictionary (10^th ed, 2014) 870.

[5] Black Law’s Dictionary (10^th ed, 2014) 870.

[6] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 87.

[7] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 91.

[8] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(a).

[9] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(1)(b).

[10] Rules of Procedure of the Legislative Assembly of Tonga (Tonga) Rule 89(3).

[11] ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 11 November 2015).

[12] Bruce Hill, ‘Impeached Tongan minister demand charges in privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[13] ‘Tonga MP wanted own committee for impeachment decision’ (2015) http://www.radionz.co.nz/international/pacific-news/282507/tonga-mp-wanted-own-committee-for-impeachment-decision (Accessed 1 November 2015).

[14] ‘Angry Tonga minister calls the speaker a ‘dictator’ (2015) http://www.cookislandsnews.com/item/53427-angry-tonga-minister-calls-the-speaker-a-dictator/53427-angry-tonga-minister-calls-the-speaker-a-dictator (Accessed 10 November 2015).

[15] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’(2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[16] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp.org/2015/10-22-10.htm (Accessed 1 November 2015).

[17] Pesi Fonua, ‘Tonga Parliament Defers Vote on Minister’s Impeachment’ (2015) http://pidp,org/2015/10-22-10.htm (Accessed 1 November 2015).

[18] Clause 75 Constitution

[19] ‘Attempt to impeach Tonga’s prime minister’ (2012) http://www.radioaustralia.net.au/international/2005-06-24/attempt-to-impeach-tongas-prime-minister/766506 (Accessed 14 November 2015).

[20] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[21] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 51(3)(b).

[22] Act of Constitution of Tonga [Cap 2] (Tonga) Clause 37.

[23] Black Law’s Dictionary (10^th ed, 2014,1208).

[24] Black Law’s Dictionary (10^th ed, 2014,870).

[25] United States and the United Kingdom provides for impeachment on the grounds of “High Crimes”.

[26] Bruce Hill, ‘Impeached Tongan minister demands charges in the privileges committee’ (2015) http://www.abc.net.au/news/2015-08-26/impeached-tongan-minister-demands-charges-in/6727054 (Accessed 10 November 2015).

[27]Impeachment’ (2014) http://www.parliament.uk/site-information/glossary/impeachment/ (Accessed 23 September 2015).

Disclaimer : Please note that this article is the author’s own personal views and it is not to be quoted for research purposes. 

Citation for the article used: ‘Hon. Lavulavu survives impeachment motion’ (2015) http://parliament.gov.to/media-centre/latest-news/latest-news-in-english/488-hon-lavulavu-survives-impeachment-motion (Accessed 10 November 2015).

Laws that may only exist in Tonga

 

In order to understand some of the laws that exist in Tonga, it is important that we explore the legal system in Tonga before western influence.

The Kingdom of Tonga is the only remaining island Kingdom in the South Pacific. Unlike the other Pacific Island Countries, Tonga was never formally colonized by western powers. However before the colonial period Tonga, like many other Pacific Island Countries in the 18^th to mid 19^th century did not have an established government nor an instituted legal system. Hence the Tongan society was governed by local customs, traditions and practices which were well-constructed in the communities. These customs were largely based on royal orders and prerogative commands of their leaders and local chiefs. Such customs were subject to calamity, due to unforeseen natural causes and conflicts between the leaders and local subjects.

Tonga has one of the oldest Constitutions in the world, it was enacted in 1875 and it marks the birth of Modern Tonga. Interestingly the Tongan legal system in modern day does not recognize that Tonga has “customary laws”. But some of the provisions in the Tongan laws reflect Tonga’s customary and religious values. Let’s have a look at some of these laws –

(1) Offence not to look after an indigent person

The closest relative of a indigent (poverty-stricken) person(s) may be prosecuted for not maintaining such indigent person.

Penalties

• Court order closest relative to maintain the indigent person;
• Imprisonment not exceeding 3 months; or
• Fine not exceeding $20.

(2) Offence to be job-less

An able-bodied male person above the age of 16 years who appears to the police to have no employment or professional nor means of providing for himself or those that depend on him or have failed to plant and provide sufficient food to keep himself and those that depend on him may be charged before the court for idleness.

Penalties

• Court order for male person to plan food;
• Imprisonment not exceeding 12 months (upon re-offence); or
• Whipping not to exceed 25 lashes.

(3) Offence not to plant food stuffs

An able-bodied male person above the age of 16 years who has failed to plant sufficient food to keep himself and those who depend on him may be charged before the Court with having failed to plant food stuffs

Penalties

• Court order for male to plan food sufficient for himself and those who depend on him; or
• Imprisonment not exceeding 3 months (upon re-offence).

(4) All males are to build a dwelling house

Every male Tongan who has reached the age of 21 years shall build a dwelling house upon his allotment. Where native materials are used the dwelling house shall not be less than 3 metres in length.

(5) All dwelling houses are to be inspected

Inspection of dwellings shall be made annually and if any house is of bad repair or badly drained or in filthy condition or unfit to sleep in, the District Officer shall order the owner to pull it down and rebuild it properly.

Penalty

Failure to obey these orders is conviction to a fine not exceeding $20.

(6) Travellers may drink coconuts

Any person travelling to a distant place upon a Government road if he be thirsty may peel and drink coconuts growing by the roadside in any main road, but it is unlawful for him to carry away any nuts but only to relieve his thirst.

(7) Vessels in distress

If any vessel lands on an island in distress, it is lawful for the crew to drink the coconuts and eat the fruit of any trees growing in such island but it is unlawful for them to carry away anything beyond what is necessary for their bare support until they reach some port. If found guilty, they are liable to the penalty for theft.

(8) Unlawful to ride past nobles

It is unlawful to pass any nobles on horseback or in any vehicle without stopping until the noble has passed and saluting by raising the hand.

(9) Unlawful to wear a turban, have hair dressed in lime, wear a sulu without a belt or be without a ta’ovala in the presence of any nobles

(10) A person under the age of 14 years found after the hour of 8.30pm at night in any place of public amusement or in any public place whatsoever unaccompanied by his parent or guardian shall be liable on conviction to either a nominal fine, whipping (if male under the age of 16) or guardian or parent of defendant is to pay a fine not exceeding $100.

(11) Tax allotment holders to plant 200 coconut trees

All male Tongan subject who has been granted a tax allotment shall within a year grown on such allotment 200 coconut trees planted in rows and so arranged that the trees are 9 metres apart or 4.5 metres apart in rows 18 metres distant from each other. Every holder is responsible for keeping the place reasonably clean and free from weeds.

Penalties

• Fines not exceeding $50

(12) All dog collars must have the name of the owner of the dog legibly inscribed on it.

(13) Penalty for non-attendance to a great village fono is $3, penalty for non-attendance to a noble’s fono is $2 and penalty for non-attendance to an ordinary fono is $1

(14) Any person who creates or causes any unnecessary noise, engaged in any construction, gardening or agricultural works, purchases or sells goods or services, practises his trade or profession or conducts any undertaking of a commercial nature, engaged in sports, dancing or fishing on a Sabbath Day commits an offence.

Penalties

• Fine not exceeding $100;
• Imprisonment not exceeding 6 months ; or both.

(15) Offence to beg and cause a nuisance by begging in a public place.

Disclaimer – This article was solely written for information purposes and it should be not be relied upon in any situation.