Fiji justice threatens hefty contempt penalty on oldest daily newspaper

Oceania Football Federation's Tai Nicholas ... criticisms in NZ press
of Fiji judiciary triggered contempt case against The Fiji Times.
Photo: Photosport

WHAT an irony. The first serious test case since the Fiji regime’s draconian Media Industry Development Decree was imposed in 2010 has arisen out of a New Zealand newspaper report late last year castigating the post-coup Fiji judiciary. The Fiji Times ran the “scandalising” article unchanged the following day on 7 November 2011 and a follow-up article about six months later which also sparked a contempt charge. And the stakes are disturbingly high – the prosecution is calling for a $500,000 fine and six-month jail sentence for the chief editor – totally out of proportion to the alleged offence.

At least, this was the demand by the regime’s lawyers at a mitigation hearing by Justice William Calanchini in the Fiji High Court this week. The Fiji Times (founded 1869) is the country's oldest and arguably still the most influential daily newspaper.

Even though both Oceania Football Confederation general-secretary Tai Nicholas, a New Zealander, had pleaded guilty last July to contempt of court for his outspoken comments suggesting there was no rule of law in post-coup Fiji reported in the Sunday Star-Times, and The Fiji Times had also been found guilty in October to contempt, the comments would clearly be regarded as normal freedom of expression in any less vindictive jurisdiction.

If the world needed further evidence of how Fiji’s “chilling” legal environment has not improved for free speech in the Pacific nation in spite of the lifting of formal censorship in January, this was it.

The Fiji Times legal case has rested on a mitigation defence that the contempt publication was "a mistake" – neither the publisher nor the editor were on duty on either dates of the offences.
As reported by South Pacific Lawyers website, Justice Calanchini ruled in early October that former publisher Brian O’Flaherty and editor-in-chief Fred Wesley were guilty of contempt.

The judge found both men liable as publisher and editor under strict liability principles. Justice Calanchini said that views attributed to Nicholas in the original article amounted to a contempt because a fair minded and reasonable person reading them would conclude that "those who claim to be performing judicial functions in Fiji are not in fact a judiciary at all” and presented a “real risk to the administration of justice in Fiji by undermining the authority, integrity and impartiality of the court and the judiciary”.

Fiji has been frequently criticised in recent years for proceeding with contempt of court charges that infringe international human rights to freedom of opinion and freedom of expression.

Fiji Times lawyer John Apted told Justice Calanchini that chief editor Fred Wesley was unaware of the story that was published.  And according to the newspaper’s own report of the mitigation meeting:

“It was entirely up to the sports editor who, due to time constraints and no show of some staff, admitted he did not read the article.

“Apted says on that day the editor, Fred Wesley, was not at work.

“In his mitigation submission, Apted once again asked for forgiveness from the court on behalf of his client.

“He also told the court that the Fiji Times had agreed to publish an apology on the front page of the newspaper.

“He said the Fiji Times was a very good corporate citizen and was working for the communities and a good example was the publishing of the Nai Lalakai and Shanti Dutt vernacular despite making losses.”

The Fiji Sun reported:

“The Attorney-General’s office proposed that a $500,000 fine be imposed on the Fiji Times Limited and a six-month imprisonment term for its editor-in-chief Fred Wesley.

“Appearing on behalf of the Attorney-General, acting Solicitor-General Sharvada Sharma submitted that given the seriousness of the contempt offence the Fiji Times should:

•   pay no less than $500,000 within a period of time deemed appropriate by the court.

•   the owners and directors should enter into a good behavior bond of $500,000 suspended for two years because the company was a repeat contempt of court offender."

Sharma told the court that the contempt was the result of a “gross negligence and recklessness” by the newspaper.

In spite of the contempt proceedings, Andrew Walshaw reported last December that Tai Nicholas had been given a place in one of the International Football Association Federation’s (FIFA) four anti-corruption panels.

 “The New Zealander has been given a place on FIFA's Revision of Statutes Task Force entrusted with reviewing the rule book as part of FIFA president Sepp Blatter's cleanup campaign.

“The move comes as the Fiji government announced that legal action was being taken over published remarks made by Nicholas about the Fijian judicial system.”

A Fiji government statement said at the time: "The Attorney-General views these comments as scandalising the courts in Fiji, in that they are a scurrilous attack on the judiciary, thereby lowering the authority of the judiciary in Fiji."

Rev Akuila Yabaki ... denies the "contempt" charge.
Photo: FijiVillage

In a similar case, the New Zealand Law Society condemned the Fiji regime’s decision to charge a prominent civil society group and its chief with contempt of court. The Citizens Constitutional Forum (CCF) and director Reverend Akuila Yabaki had been charged over an article in the NGO's newsletter, Tutaka, which referred to a critical report on the rule of law in Fiji by the Law Society of England and Wales charity.

In a Radio Australia Pacific Beat interview, Jonathan Temm, president of the New Zealand Law Society, said that in his opinion no crime has been committed.

Justice Calanchini's sentence in The Fiji Times case has been reserved. The 2010 Media Decree effectively forced the sale of The Times by the Murdoch-owned News Limited group to local newspaper director Mac Patel of the Motibhai Group because of an imposed 10 percent foreign ownership ceiling. Contempt is separate from the decree, of course. But although the regime's vindictiveness against the newspaper continues, the mitigation submissions clearly demonstrate that Times staff need a big brush up on potential media law traps.

• Call for Fiji Times to be fined $500,000
• Other Fiji Times contempt stories 
• Fiji media self-censorship 
• The other current contempt case - CCF

Fiji's political figleaf ripped aside – censorship bites

THE FIGLEAF in Fiji has finally been ripped aside. Now we have an unashamedly naked military dictatorship back in power. Inevitable, of course, given the shortsighted Australian, New Zealand and Forum policies that had boxed an increasingly intransigent regime into a corner. But disappointing given that the recent political dialogue had been providing a glimmer of hope.

The Court of Appeal judgment was the final straw for the regime. The Easter “New Order” imposed by the ailing President Ratu Josefa Iloilo – ie. the regime old order back in a new guise – hasn’t flinched from the original mission. Commodore Voreqe Bainimarama still clings to his pledge to change the country’s electoral system away from the flawed race-based system in place since independence (changed after the 1997 Constitution but with no real fundamental difference) and to end corruption.

But the rule of the gun cannot force a change in the people’s mindset and in the long run will be counter-productive. According to law professor George Williams at the University of New South Wales, who had a hand in the 2001 judgment heralding a return to democracy from Bainimarama’s post-Speight military rule, the “pretence of acting within the rule of law [and upholding the 1997 Constitution] has been stripped away” leaving a profoundly uncertain future for Fiji:

The trigger was Thursday's decision of the Court of Appeal, which ordered a restoration of democracy. In 2001, the same court overturned an earlier coup by Commodore Frank Bainimarama. On that occasion the military stood down, the 1997 constitution was restored and fresh elections were held. Many had hoped that history would repeat itself.

Based on his definition of a coup (Bainimarama’s in 2000 after Speight was really the fourth, followed by the fifth in December 2006), Fiji has just had its sixth on Good Friday.

In the meantime, editors, journalism and the news media have an unenviable job ahead of them – trying to pick their way through the Fiji minefield and maintain some level of media freedom and independence in the current climate of censorship and self-censorship. Expulsion of expatriate Australian publishers under the glare of immediate glare of international media publicity over the past year was one thing, the day-to-day unsung hard graft and risks now facing courageous local journos is quite another. Café Pacific believes Fiji is now entering a sinister era where journalists are stepping out of the regional rhetoric of media freedom and may face real dangers as suffered in many other developing nations.

The regime has ordered news media to comply with a new 30-day emergency rule regulation which restricts coverage. Police and soldiers along with Ministry of Information censors have been placed in the capital Suva’s newsrooms to check stories being broadcast, printed or posted online. The censors have been dubbed the "sulu subeditors". Media have been ordered not to run anything negative about the President’s abrogation of the constitution and the return of Bainimarama as prime minister. The military chief said:

We must be patriotic. The necessary regulations are in force. I’m sure we will all – including the media – cooperate with the authorities.

"Cooperation" was displayed with today's edition of the Sunday Times, which reportedly carried a blank page two, five stories missing from page three and a blank political cartoon. The Fiji Times has decided to not publish any items that have been censored. It displays a bold box on page two declaring: "The stories on this page could not be published due to government restrictions." However, it is understood that editorial management have been ordered to meet with the Deputy Secretary for Information, Major Neumi Leweni, and he has told the Fiji Times to drop the blanks or face complete shutdown. Fiji Television's 6pm news bulletin tonight was also gagged.

Ironically, buried in the Appeal Court judgment by the three expatriate judges - Justices Randall Powell, Ian Lloyd and Francis Douglas – was a strong statement defending the independence of the Fiji judiciary, including a rebuke against some commentators – including journalists – for their “ sustained and virulent” personal attacks on the country's judges:

Some of the commentators have descended into personal attacks, sustained and virulent, against Chief Justice Gates and several other High Court judges. This has not, to the close observation of members of this court, deflected the Chief Justice and other High Court judges from their judicial oaths, their duties, and their endless work in bringing Fiji a fair and functioning judicial system. It must be remembered that a fair and functioning legal system can substantially alleviate the situation of a people who aspire to democratic rule in times of instability.

And now, the rule of law has been removed - and elections shunted back until 2014.

• The rule of law has been displaced by the force of arms
• Will regime shut the Fiji Times?
• Fiji president reappoints Bainimarama
• Tough media censorship in Fiji
• Fiji court rules Bainimarama’s regime illegal
• The full Appeal Court judgment at Pacific Media Watch
• PMC condemns 'ruthless censorship'
  
• Regional scrutiny of media freedom
  

Found guilty, but Fiji Times will fight on for free speech

WHILE the media fraternity was aghast at the assault on media freedom with the High Court verdict holding The Fiji Times in contempt over a letter to the editor, the newspaper itself was rather philosophical. But it made it very clear it intends to challenge the ruling on free speech issues. Its editorial "The law must take its course" today said:

We accept our guilt and will endeavour never to appear before the courts again. This newspaper will be the first to accept that the judiciary must exist in any real democracy. It will also defend the rights of our people to an independent judicial system. We must point out, however, that we do not necessarily agree with all of the judgment, and we do not agree with the penalties imposed on us by the judgment. There are avenues open to this newspaper to appeal and we will pursue these vigorously, as is our right.
Photo: Fiji Times picture of lawyer Richard Naidu (left) and acting publisher Rex Gardner outside court.

The bad news is that the penalties are extraordinarily harsh for what some might regard as fairly mild criticism of the judiciary in Fiji (published on the FT website on 22 October 2008 and condemning a judgment finding the Bainimarama coup in 206 not illegal). But Justice Thomas Hickie, an Australian, regarded the comments as "scandalous". These are indeed Orwellian times in the Pacific nation. The good news is that the punishment wasn't as bad as the military-backed regime had wanted - ie. a $1 million fine and actual jail terms for the paper's editor-in-chief and acting publisher. In fact, the paper was fined F$100,000. The court also imposed a three-month jail sentence suspended for two years on editor-in-chief Netani Rika and a conditional discharge for acting publisher Rex Gardner on good behaviour for 12 months. The newspaper has also been ordered to pay a $50,000 good behaviour bond for two years.

International Federation of Journalists led the charge of media outrage. Sydney-based Asia-Pacific director Jacqueline Park said: "The court's decision has serious implications for Fiji's media and the right to free expression in an environment where freedom of the press has been sorely tested over the past year." The IFJ is worried about this verdict as a backdrop to the regime's planned new media law, which some are predicting to be draconian. But some local journalists on the ground also regard it as a "wake up call" over ethics, morality, responsibility and the subjudice laws when they say material published by Fiji papers has frequently breached the boundaries. Interim Attorney-General Aiyaz Sayed-Khaiyum told Radio Australia - putting his own spin on the judgment - that "standards have [been] completely thrown out the window". The AG ticked off many journalists from Australia and NZ for seemingly "dropping their standards" while in Fiji and condemned "trial by media". He added that he thought it would be a judgment widely cited in Commonwealth jurisdictions.

Ironically, a three-member Fiji Media Council independent review team has been meeting in Suva this week looking at media accountability and freedom issues. The Media Council itself declined to comment on the court ruling. The next question is what will happen to the Fiji Daily Post - more of the same? A verdict is expected in April.

Meanwhile, announcing a new blog devoted to Fiji affairs, Professor Croz Walsh says:

NZ media coverage of the Fiji situation has been so unbalanced that most New Zealanders see no difference between the Fiji and Zimbabwe situations. A friend told me yesterday: "That Bainimarama. he's just another Mugabe." Fiji media is more balanced but even then the ratio of negative to positive views is about 3:1. Today's court news from Fiji is sure to further demonstrate the need for a blog to offer some sort of balance.

• The law must take its course - The Fiji Times
• Fiji court finds newspaper guilty of contempt
• Fiji Times fined - staff avoid imprisonment
• Judgment day
• Fiji, the Way it Was, Is and Can Be - Croz Walsh
• Full text of the High Court judgment