1. What is actually happening
This is not merely a media-access dispute. It is a constitutional case about whether the executive can exclude a specific journalist and his news organisation from the government’s own press conferences, and what “remote participation” must mean if it is to be genuine rather than nominal.
The Plaintiff, ‘Etuate Lavulavu, is the CEO of the Tonga Chronicle and 88.1 FM Letio ‘a e Kakai. He and his journalists were excluded from the Prime Minister’s press conferences. He sued. On 11 September 2026 the Lord Chief Justice made an oral order suspending the earlier interim injunction and directing that the next press conference proceed “without impediment” to his remote participation, subject to undertakings that his questions be courteous and that answers be reported accurately. The Court expressly reserved the question of whether to continue, vary, or discharge the order, and directed that the next press conference be recorded so it could assess whether the Plaintiff was “afforded a reasonable opportunity to participate remotely and ask questions.”
The press conference was then held on 15 September 2026. The Plaintiff’s affidavit and letter to the Solicitor General set out what happened. The short version: he was given notice at 12:08 am on the day, told the time only at about 7:30 am, offered access only through other news organisations’ Facebook pages, and given no defined channel by which his questions would actually reach the Prime Minister. He did not participate. No question from him or his newsroom was put or answered.
2. The legal strengths of the Plaintiff’s position
(a) The order required “reasonable opportunity,” not a gesture.
Paragraph [6] of the Order specifically directs the Court to consider “whether the Plaintiff was afforded a reasonable opportunity to participate remotely and ask questions.” The Plaintiff’s evidence is carefully framed to show that the arrangement offered did not meet that standard:
- Notice at 12:08 am and 7:30 am on the day, versus two days’ notice given to other outlets for the 14 August conference (Ma’u affidavit, para 10).
- Access only via Broadcom Broadcasting, Kele’a Voice, and TBC Facebook pages — i.e. the pages of competitors.
- No link, telephone line, email address, or named officer for conveying questions.
- An answer “by email following the Press Conference” cannot satisfy paragraphs [3]–[5], which require the recording to include the Plaintiff’s questions together with the responses given.
This is a strong, narrow, evidence-based argument. It does not require the Court to accept any contested version of events. It simply asks: on these facts, was there a real opportunity?
(b) The “unspecified unacceptable behaviour” allegation is a due-process problem.
The recitals to the Order refer to “an allegation of unspecified unacceptable behaviour” as a reason for exclusion. The Plaintiff says:
- He attended every press conference from 30 January to 14 August 2026.
- No one ever told him his conduct was unacceptable.
- The allegation does not appear in the affidavits of Mr Ma’u or Mr Fifita.
- He first heard of it in Court on 11 September 2026.
- He has asked the Solicitor General for particulars (Annexure “E”).
This is potentially serious. If the executive is relying on an allegation to justify excluding a journalist, and that allegation has never been particularised or put to him, the Court may take a dim view — both as a matter of natural justice and as a matter of the evidence. The Solicitor General may be able to cure this by providing particulars, but until then the Defendants are in an awkward position.
(c) The suspension of the 4 September order cuts both ways.
The Lord Chief Justice suspended the earlier interim order “until after the next press conference.” That was not a finding that the Plaintiff had no case. It was a holding measure to allow the next conference to take place and be assessed. Paragraph [8] expressly reserves the continuation, variation, or discharge of the existing order. So the Plaintiff has lost nothing permanently; he has simply moved to the next stage of the test.
(d) The proceeding is not just about him.
Paragraph 11A of the affidavit makes an important point: the exclusion applied to his journalists and staff as well — Ms Loamanu was refused entry on 17 August 2026 because of her affiliation with him, and Mr Fifita’s evidence is that the direction extended to all “representatives and associates of 88.1 FM.” The relief sought is therefore institutional, not merely personal. That matters for the public-interest dimension of the case.
3. The weaknesses and risks in the Plaintiff’s position
(a) The Court has already found that lack of an express invitation is not enough.
The Order records that the Plaintiff “was not expressly invited to attend the press conference, does not of itself, provide a sufficient basis for the relief sought.” So the Plaintiff cannot succeed merely by showing he was not invited. He has to show that the manner of the remote participation offered was unreasonable. That is why the affidavit focuses so heavily on the practical inadequacy of the arrangements rather than on the absence of an invitation.
(b) The Defendants have two stated reasons for exclusion.
The Order refers to (i) an ongoing inquiry by the Communications Commission and (ii) the allegation of unspecified unacceptable behaviour. If the Defendants can substantiate either, the Court may be slower to intervene. The Plaintiff’s strongest response is that the second allegation has never been particularised and that the first does not, by itself, justify excluding a journalist from a press conference.
(c) The “courtesy” undertaking is a potential trap.
Paragraph 2 requires the Plaintiff to undertake that his questions will be “put courteously and respectfully.” Paragraph [7] says the Court will have regard to his conduct at the next press conference and whether he complied with his undertakings. If the Plaintiff attends and asks aggressive questions, the Defendants may argue he breached the undertaking — even if the questions were legitimate journalism. This is a real risk, and it explains why the Plaintiff is being careful to seek a defined channel and clear terms in advance.
(d) The Court may prefer a practical solution to a confrontational one.
The tone of the Order — suspending the injunction, directing a recording, reserving judgment — suggests the Lord Chief Justice wants to see whether the parties can make the arrangement work. If the Plaintiff is seen as obstructing or litigating every detail, that could count against him. His letter of 15 September 2026 is carefully calibrated to avoid that impression: it records the facts, asks for defined terms, and says he will participate on any reasonable terms.
4. How this can backfire on the Prime Minister’s leadership
This is the political question, and it is a serious one. Even if the Prime Minister “wins” the legal argument, the handling of this matter can damage his leadership in several ways.
(a) It looks like targeted exclusion of a critic.
The Plaintiff is not a random litigant. He runs two media outlets. The exclusion applies not just to him but to his journalists and staff. The practical effect is that one news organisation — and its audience — is shut out of government press conferences while every other outlet attends. That is difficult to defend as a neutral, content-blind policy. It invites the charge that the government is picking and choosing which journalists it will face.
(b) The “unspecified unacceptable behaviour” allegation is a public-relations liability.
If the government is relying on an allegation of unacceptable behaviour to justify excluding a journalist, the public will want to know what he allegedly did. If the government cannot or will not particularise it, the natural inference is that there is nothing specific to point to — or that the real reason is political. Either way, the government looks evasive. The Plaintiff has now put this squarely in writing to the Solicitor General and has reserved the right to produce the letter to the Court. That guarantees the issue will be aired.
(c) The timing and manner of the notice look petty.
Notice at 12:08 am, time confirmed at 7:30 am, access only through other outlets’ Facebook pages, no defined channel for questions. Even if each of these decisions was made for administrative convenience, the cumulative impression is of an arrangement designed to be technically compliant while being practically useless. Courts and the public tend to notice that distinction. If the Court finds that the Plaintiff was not afforded a reasonable opportunity, the government will be seen as having tried to game the order.
(d) The recording requirement creates a permanent record.
Paragraphs [3]–[5] require the next press conference to be recorded, with the Plaintiff’s questions and the responses included. If the Plaintiff participates and asks questions, the government will have to answer them on the record. If the government again fails to provide a workable channel, the recording will show that too. Either way, there is now a documentary record that can be used in the case, in the media, and in Parliament.
(e) It hands the opposition a simple narrative.
“Democracy in Tonga” is a sensitive and politically charged subject. The government’s own narrative is likely to be that it is protecting the dignity of the office of the Prime Minister and ensuring orderly press conferences. The Plaintiff’s narrative is simpler: a journalist is being shut out because the government does not like his questions. In a small media environment, that narrative can travel quickly. It also aligns with broader concerns about press freedom and executive accountability.
(f) It risks a finding of contempt or breach of the order.
If the Court concludes that the Defendants did not comply with the spirit of the 11 September order — for example, by offering only a nominal opportunity to participate — the consequences could include a finding that the order was not complied with, further orders, or costs. That would be a direct institutional rebuke to the executive. Even the perception of non-compliance is damaging to a Prime Minister who is simultaneously asking the Court to trust his government’s good faith.
(g) It prolongs the story.
The Plaintiff has asked for written confirmation by 4 pm on Thursday 17 September 2026 of the date and time of the next press conference, a defined channel for questions, an undertaking that questions will be put and answered on the record, a copy of the recording, and particulars of the allegation. If the government refuses or delays, the case continues. Every court appearance, every affidavit, and every news cycle keeps the issue alive. For a Prime Minister, that is rarely a winning position.
(h) It may invite scrutiny of the Communications Commission inquiry.
The Order refers to “the ongoing inquiry by the Communications Commission” as one of the reasons for exclusion. If that inquiry is seen as being used as a pretext to exclude a journalist from press conferences, the government may face questions about the independence and purpose of the Commission itself. That is a much larger issue than one press conference.
5. What a sensible resolution might look like
The Plaintiff has effectively laid out the terms on which he will participate: notice at the same time as other outlets, a single defined channel (video link, telephone line, or monitored email address), a named officer responsible for conveying questions, an assurance that questions will be put and answered on the record, a copy of the recording, and particulars of the allegation. If the government agrees to those terms, the next press conference can proceed, the Court can assess the recording, and the case may narrow or settle. If the government refuses, it will have to explain to the Court why it cannot provide what the Plaintiff is asking for — and that explanation may be more damaging than the original exclusion.
6. Bottom line
Legally, the Plaintiff has a strong, narrowly framed case on the “reasonable opportunity” point and a serious due-process point on the unspecified allegation. He is not asking the Court to compel the Prime Minister to invite him personally; he is asking the Court to ensure that the remote participation ordered on 11 September was real. The Defendants’ position is weaker than it looks because the Order itself makes the adequacy of the arrangements the central question.
Politically, the Prime Minister’s handling of this matter is a net negative for his leadership. It looks like targeted exclusion of a critic, it relies on an allegation the government has not particularised, it offers a form of participation that is practically hollow, and it keeps the story alive in court and in the media. Even a legal win on the narrow question of whether the Plaintiff was “expressly invited” would not erase the impression that the government is avoiding scrutiny. In a small, media-conscious democracy, that impression can do more damage than the original press conference ever would have.
The safest course for the Prime Minister’s leadership is to provide a genuine, workable channel for the Plaintiff’s questions, give particulars of the allegation, and let the press conference proceed on the record. If the Plaintiff then behaves improperly, the Court will see it and the government will be vindicated. If he behaves properly, the government will have shown that it can face difficult questions without excluding the questioner. Either way, the government avoids the appearance of evasion — which is the real risk to the Prime Minister’s leadership here.
