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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.”

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