The Supreme Court has overturned a Magistrate’s Court decision to acquit Tonga Broadcom of breaking the law restricting broadcasting on election day.
Section 23(1)(g)(i) of the Electoral Act prohibits anybody from broadcasting at any time on polling day before the close of the polls any statement “advising or intended or likely to influence any elector as to the candidate for whom the electors should or should not vote.”
The Supreme Court heard that about 7am on election day, November 16, 2017, Broadcom transmitted an interview with Deputy Prime Minister Semisi Sika.
The interview had been recorded a few days earlier, but Hon. Sika was unaware it would be broadcast on polling day.
The broadcast focussed on the work and achievements of Hon. Sika, the need to continue this good work and his desire to be returned to finish off the work for the benefit of Tonga. It then urged listeners to exercise their vote.
Another candidate standing for No 2 Tongatapu constituency heard the broadcast and laid a complaint. A prosecution was launched in the Magistrate’s Court.
The Principal Magistrate found that the offence had been proven, but acquitted Broadcom on the grounds that the law was not meant to restrict the publication of any candidate’s name in any printed or broadcast news.
The Supreme court was told the records did not show that the Principal Magistrate provided any reasons for his conclusion.
Lord Chief Justice Paulsen said Section 23 created a blackout period on polling day banning the publication, distribution or broadcast of statements likely to influence how people voted.
This balanced the right to campaign and free speech with the maintenance of a free voting environment.
The proviso was unambiguous and did create a general exception for publications or broadcast that might be considered news.
“It recognises that on polling day the media has a legitimate interest in reporting on the election, but not to the extent of disseminating information influencing the manner in which electors vote,” the judge said.
“The Principal Magistrate was correct to find that all elements of the offence under Section 23(1)(g)(i) were proven beyond reasonable doubt,” Lord Chief Justice Paulsen said.
“He was wrong to acquit the respondent.
“The decision of the Principal Magistrate is quashed and Broadcom is convicted of the offence under the Electoral Act.”
The main points
- The Supreme Court has overturned a Magistrate’s Court decision to acquit Tonga Broadcom of breaking the law restricting broadcasting on election day.
- Section 23(1)(g)(i) of the Electoral Act prohibits anybody from broadcasting at any time on polling day before the close of the polls any statement “advising or intended or likely to influence any elector as to the candidate for whom the electors should or should not vote.”
