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 pensions: 'Osama, put that gun down'

THE GREAT pension saga in Fiji has drawn a satirical response from one of Café Pacific's regular readers - "Sas". This follows a news item that revealed a rather vindictive response from the Fiji regime towards founding coup leader Sitiveni Rabuka (not content with one coup, he pulled off two in 1987 - four months apart). Rabuka's government pension was cut off. The Citizens' Constitutional Forum warned that stopping pensions was an abuse of power and a violation of International Labour Organisation (ILO) conventions. (Cartoon: Kaciwasa)

Open letter to the Prime Minister, 7 February 2010

Dear Commodore Bainimarama,

I am writing to you in great distress, as I fear that both my pension of $60 a month and my child’s education are in jeopardy because of my failure to be a good person and I beg your forgiveness.

It began the other day when my five-year-old son Osama asked if he could come and shop with me in town. I said “Yes” to him and Osama seemed so happy. We were going to Rups Store in Suva, as there my small salary seems to be worth more than in Proud’s Duty Free Shop.

We arrived in Rups luxurious store and Osama asked me to buy him something. My money was limited and I said “No” to his repeated cries. Without my consent he took something from a shelf.

I immediately told him he had to put the object back, which I noticed was a plastic toy gun. My son began to defy me so I had to raise my voice. I said in a clear strong voice: “Osama, put that gun down”.

I wished I had never said those words. The whole shop stopped. People threw themselves on the floor. Men screamed and others began to pray. Within seconds a platoon of soldiers rushed into the store firing guns in all directions. It was dreadful to watch the horror unfolding before my eyes at the bullets hitting cups, saucers and shooting holes in saris.

The staff on duty were terrified. One officer shouted out, “Where is he?” A teenage shop assistant dried her tears and pointed at Osama. Six soldiers jumped on my four-year-old son, held him down and called for re-enforcements. An army officer came into the room and took control.

“Remove his gun,” screamed the officer. Six soldiers twisted Osama’s arm to get the gun. He was so angry and kept screaming: “I want a gun, I want a gun."

The gun was finally wrested away from Osama and the officer asked him for his name and address. He became stubborn and refused to talk. The officer looked at me and asked if I was his father. I nodded and was immediately stripped naked in the shop and searched for guns, bombs or weapons of mass destruction imported from Australia or New Zealand through their High Commissions.

Fortunately, I had none, as I am a poor man and I have never left Suva.

All the army officer could find was my pension book. It was taken away from me. The officer who looked at it, snapped at me: “We will keep this. We know how to deal with you”.

I felt distressed and asked if I could leave. I was then given permission to go home.

The first question as I entered my front door was from my wife, asking why Osama was not with me. It was only then I remembered I had left him behind. So I went back to Rups Store, but he was gone.

I noticed that they already had a large sale sign up saying damaged cup and saucers and saris were being sold at a special cheap price. It was a golden opportunity to get a bargain, so I bought my wife a sari with bullet holes in it.

I knew that she would be able to repair it and wear it on Fiji Independence Day to celebrate the progress of Fiji towards freedom and wealth for all.

I went home feeling happy that I had a bargain that would make my hardworking wife happy. But she said I had bought the wrong colour sari and she again asked where Osama was.

I returned to Rups Store to look for Osama. He had been taken to the Queen Elizabeth army barracks. Immediately I went there and was placed under armed guard. I was strip searched again for weapons of mass destruction and then led through several corridors to the cell where Osama was being I interrogated. I could hear him screaming: “No, no, no."

He was wild and was refusing to answer questions. Whenever a soldier waved a gun in front at him to make him talk, he began screaming: “I want that gun, I want that gun”.

Two colonels were conducting the investigation, but it was no use. Osama was obstinate.

Many hours later when it was dark I was allowed to take Osama home with the words of the colonels echoing in my ears: “We will fix both you and him, bro.”

We got home and fed Osama, put him to bed and I comforted my wife. Late that night I thought of what else I could do to ask you, my Commodore, my appointed leader, to forgive Osama for his actions. My wife and I decided to make Osama write a letter of apology for his actions. We would then send it to the newspapers to be published.

In the morning, Osama was in a good mood as he had slept well and he began writing the letter. This pleased his mother and me. When the letter was finished we could not read it as we are both illiterate, and our hopes for the future are with little Osama.

The letter was duly published but I regret that I have to apologise for what he said. Instead of writing “Dear Sir” at the start of the letter, he wrote “Dear Cur”. Please forgive him this spelling mistake, he is a small boy. He also said you were a “great free loader” when he meant to say “great Fiji leader”

It appears your media “minders” at the newspapers did not pick up the errors.

I beg of you to return my pension, which I use to feed myself, Osama, my wife and 20 other relatives who cannot find paid work. The pension also pays for Osama’s education.

To deprive me of my pension, because of my small son’s actions, means that we will join the almost one hundred thousand squatters living in squalor between Vatuwaqa and Nausori. When I asked the squatters in Vatuwaqa if we join them, they told us to go away as the army had promised them work and new homes if they just kept making people chatter.

I think they mean the People’s Charter.

I humbly request the return of my pension to feed my family and to buy Osama a school bag. He is my future, I want him to have a good education and a job when he grows up so that he may never again address you as “Dear Cur”.

With affection for your promises.

Sas

Suva

Background:

Radio Australia, 22 January 2010:
Former Fiji PM's vehicle confiscated, pension cut

Former Fiji prime minister and coup leader, Sitiveni Rabuka, has had his government pension cancelled by the interim government.

That man who staged Fiji's first ever coup in 1987 has had his benefits taken off him, including a government-supplied four wheel drive vehicle, which was confiscated from him on the spot.

Last week the interim prime minister, Commodore Frank Bainimarama, announced that Fiji pensioners who criticise his government will have their pensions stopped.

Mr Rabuka told Radio Australia's Pacific Beat programme he had to walk an hour back to his village when the soldiers who brought him a letter about his pension being stopped took his vehicle while he was out picking coconuts.

Citizens' Constitutional Forum media release, 13 January 2010:
Stopping pension an abuse of power and violation of ILO Conventions

The Interim Government will be committing acts of abuse of power and misuse of funds, as well as violating International Labour Organisation (ILO) conventions if it passes a decree to stop pension payments to its critics, says the Citizens’ Constitutional Forum (CCF).

Interim Prime Minister Commodore Voreqe Bainimarama revealed in the daily news today that this decree was passed last week, however, the decree has not yet become available to the public, and rumours are it is yet to be created

NB. Commodore Bainimarama approved the draft of the People’s Charter in December 2008 with the eleven key pillars for Fiji’s future development.

Veteran Fiji broadcaster gagged on Pacific radio

A RECENT wide-ranging interview about Fiji has led to the suspension off air of veteran broadcaster Bulou Amalaini Ligalevu from her popular Pacific Media Network programme. Bulou Amalaini, an experienced former Radio Fiji broadcaster who started her 531pi Fijian-language Voqa Kei Viti (Voice of Fiji) in 1980, has fallen out with her bosses over a 20-minute interview with Fiji’s human rights advocacy group Citizens' Constitutional Forum (CCF) executive director Rev Akuila Yabaki (pictured). The programme included insightful views about media censorship and current developments in Fiji.

But while the programme drew some 25 comments complimenting Bulou Amalaini over the interview, three people emailed the radio station complaining about a section discussing the recent Methodist Church controversy. Regime leader Commodore Voreqe Bainimarama banned this year’s annual conference of the 200,000-strong church. The commander also demanded that the church sack two former presidents who were involved in previous coups, Rev Manasa Lasaro and Rev Tomasi Kanailagi, and are being blamed for “incitement”.

Acting chief executive Tom Etuata, of Niue, suspended Bulou Amalaini off air in response to the complaints – even before discussing the programme with her. He says the radio network aims for "balance". Bulou has now been told the suspension has been lifted, but it is understood she has not actually been scheduled for the regular five-hour Saturday evening Fiji slot since her June 6 broadcast.

All three complainants were hostile over Yabaki's and her criticisms of the Methodist Church. Said one: "And to bring such a person to openly criticise my church and its affairs to the people on New Zealand, how dare she do that. She continues to add on comments and remarks with suggestions about how we should run our church - who the hell is she?"

In this current post-Easter climate of media censorship in Fiji and the dearth of quality comment about the political situation, Bulou Amalaini’s programme has been a gem. It has been marked by quality and in-depth research and credible commentators. “But a lot of people don’t like Rev Yabaki for his forthright and independent views – and for the same reason, some don’t like me,” she told Café Pacific.

Among views expressed in the Yabaki interview were:

On censorship:

It’s difficult to get national news broadcast out of Fiji without it being censored by the regime. We have to find an alternative way of transmitting this information to the outside world, particularly when we are depending on the international community to help out.

On the abrogation of the 1997 Constitution:

Yes, it’s true that our Constitution has been abrogated. However, basic human rights still exist globally - and this includes the right of freedom of speech. Every human being has the right to freedom of speech and although the Public Emergency Regulation is in force … we have to try and work a way around this censorship.

On the chilling of free speech:

People are not so forthcoming for fear of victimisation, whereby they could lose their jobs and all interviews are being screened as directed by the regime. This does not augur well for a solution. Instead we need to keep the dialogue open. And, as I have mentioned before, there were some discriminatory overtones in the last Parliament but that does not mean that freedom of expression should be curtailed altogether.

On arbitrary arrests and detentions:

We are concerned at the arrest and detention of people by the police and military. Following the abrogation of the Constitution on April 10, the Public Emergency Regulation (PER) was promulgated for 30 days [and Bainimarama says it will now be in force until the end of the year] ... This PER [was] embedded in our Constitution and can be executed by Parliament as a security measure if there is civil unrest or disturbance in the country. It had never been used before until the coup was staged in December 2006 and more recently after 10 April 2009.

On the banning of the Methodist Church annual conference:

The Methodist Church chose not to be a member of the National Council for Building a Better Fiji (NCBBF) ... The Methodist Church is very much in disarray. If you look at the history of the stand that the Methodist Church has taken in the past 20 years, you will note that it supported the first coup of 1987 and also George Speight’s coup in the year 2000. But it opposed the coup of 2006 because it believes that Fiji should be governed by Fijians, who are their members, as if it were their divine right. This was the case when Dr Timoci Bavadra and Mahendra Chaudhry’s Labour Party won the general elections of 1987 and 1999.

How ironical that those objecting to the Bainimarama regime’s censorship in Fiji should seek to gag a prominent Fiji broadcaster in New Zealand for trying to open up debate.

Picture of Rev Akuila Yabaki - The Fiji Times.

• Pacific radio defends banning action over 'unbalanced' Fiji interview
  
• Citizens' Constitutional Forum
• Fiji Methodists face ban
• Government’s decision ‘intact’
• Beware of conmen, warns PM
• Stop misleading members - PM
• English translation of the Yabaki interview
  

Draconian Fiji responses to 'contempt'

FIJI'S JUDICIAL responses to contempt by two local newspapers become sillier and sillier. The contempt laws for scandalising the court were never meant to stifle vigorous debate about court rulings. Citizens Constitutional Forum chief executive Rev Akuila Yabaki says the draconian prosecutions "stifle free speech in an oppressive manner". The paranoid climate around the judiciary following last month's controversial High Court judgment declaring the post-coup regime to be legitimate is deteriorating. The contempt proceedings against the Fiji Times, after the newspaper's apology about an online letter to the editor, and now the action against the Daily Post are vindictive. The Attorney-General's office is pressing for the jailing of publisher Rex Gardner and editor Netani Rika.

Quite rightly, the actions have drawn protests from the International Federation of Journalists, representing some 600,000 journos worldwide - which has also taken the opportunity to challenge the regime's plans for a "media promulgation" law. IFJ said it was deeply concerned that "while Fiji's military government is spruiking its draft media law as a means to encourage media freedom and freedom of expression, an independent newspaper is being forced to defend contempt charges for publishing the opinion of a member of the public with which the government disagrees."

For the record, former Fiji prime minister Mahendra Chaudhry has not dropped his F$1 million defamation case against the Fiji Times as reported by the paper - he has merely amended the claim to drop the parent company, Murdoch's News Limited, from the proceedings.

A-G given 14 days to submit on Fiji Times penalty
Another Fiji daily held in contempt
IFJ statement
Push to jail Fiji Times editor
'We're in contempt' - and full text of the offending letter
Chaudhry's lawyer files amended claims