Sabre-rattling over the Fiji Times, but what about the Fiji Sun?

Déjà vu: Fiji Times picture of lawyer Richard Naidu (left) and then acting publisher
Rex Gardner outside court at the 2009 contempt case judgment in Suva.

OPINION: By Charlie Charters

PERHAPS I am a discordant voice among those willing to cheer the Fiji Times into the ground over this month's judicial controversy. But I am intrigued to know where is the judicial outrage, contempt of court proceedings, government sabre-rattling etc. over this Fiji Sun case, which I understand is still outstanding?: Court report contains errors

Read through the whole list of complaints that Christopher Pryde makes – four detailed complaints of basic "gross" errors of fact and two complaints relating to "impressions given" about the competency and professionalism of the Director Public Prosecutions (DPP).

Now close your eyes and imagine that The Fiji Times had made those same mistakes. See what I mean?

In the 2008 instance, the Fiji Times pleaded guilty after publishing a letter on October 22 that was critical of the judiciary. The FT wrote a fulsome and contrite apology, and pleaded guilty in court, but received substantial fines and one suspended jail sentence ("extraordinarily harsh for what some might regard as fairly mild criticism" - journalism professor David Robie on Café Pacific).

Judicial High Noon for Fiji Times leaves media ‘independence’ teetering

Fiji Times chief editor Fred Wesley ... suspended jail sentence. Photo: Media Freedom in the Pacific
video frame/Cafe Pacific

HARD on the heels of a new decree by Fiji’s military-backed regime effectively gagging reporting about political parties no longer officially “registered”, the country’s most influential newspaper Fiji Times has been clobbered judicially. It has paid a tough price - including a F$300,000 fine and suspended jail sentence for the editor - for “scandalising” the judiciary over reprinting a story from a national New Zealand Sunday newspaper on its sport pages.

“Within Fiji's media industry it is expected that this heavy fine will knock the publication out of business,” writes Fairfax’s Michael Field, a long-time critic of the regime. The draconian 2010 Fiji Media Industry Development Decree, although not involved in this contempt of court case, was widely believed to be aimed at the Fiji Times group, especially a punitive curb aimed at divesting foreign ownership to a maximum of 10 percent. This forced Rupert Murdoch’s Sydney-based News Limited group to cut its losses and sell out completely in 2010 to one of the newspaper's long-standing Fiji directors, Mahendra “Mac” Patel and his Motibhai Group.

“Is ‘Mac” Patel  a fit and proper person to preside over the stewardship of Fiji’s oldest newspaper, founded in Levuka in 1869?,” asks Grubsheet columnist Graham Davis, a media advocate for the regime, noting the businessman had already served a year-long jail sentence for abuse of office when he was chairman of Fiji Post. “The continuing drama at the Fiji Times still has a long way to go.”

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

News Ltd innovator to take helm at Fiji Times

ANNE FUSSELL is taking over as publisher and managing director at the Fiji Times. This is good news for the champions of a better gender deal in the local media - she will be the first woman at the helm of the country's major daily newspaper and arguably most influential news organisation. But she is also both an innovator and well-experienced as a sub on a variety of publications, having worked with Britain's Daily Star and The Sun. Back in Brisbane her career included the Courier-Mail and picking up a Walkley Award (1992) for best use of the newspaper medium for journalism with the special report "Creating the future". Her most recent News Ltd executive role has been as group intellectual property manager.

She replaces Rex Gardner, who was kicked out by the military-backed regime last month in fallout from the contempt affair. Two other Australian executives were deported last year - the Fiji Sun's Russell Hunter in February and the Fiji Times' Evan Hannah in May. News Ltd chairman and chief executive John Hartigan pledged his company's commitment to the Fiji Times group: "[The papers] will remain free and independent publications." But not everybody in Fiji agrees with the move. Some are questioning the need for expat publishers in the first place. Laminar-Flow's Stuck in Fiji M.u.d blog had this to say in a scathing posting (mostly about the Pacific Islands Forum circus in Port Moresby):

The question of how and why - despite 120 years of existence - the Fiji Times still can't produce or employ any local publisher, comic strip series or independent columnist, or separate Sport/ Editorial/Opinion is now an alarming question, considering the circumstances. Such are questions that have been avoided, by the local media's coverage of the deportation of foreign citizens. One of the most poignant questions asked among local journalists: Aren't Fiji citizens capable or qualified enough to be employed as the Fiji Times publisher?

It is quite alarming that Fiji Times [has] had an alarming over reliance on foreign citizens, employed as publishers, taking the job away from any local prospect. An outrageous policy that equates with, a distinct non-compliance of localisation of vacant positions. If there were rules for local content in published comic strips, most print publication in Fiji would be audited as a complete and abject failure ...

Or was the omni-presence of Australian citizens employed in the local media
agencies throughout the Pacific region, an extension of these reoccurring themes
of embedded journalist/intelligence agent programs?

• Trans-Tasman foie gras of the Pacific Islands Forum
• Fussell to lead The Fiji Times
• Media7 tv interview with David Robie, Barbara Dreaver and Robert Khan
  

Provocative expulsion another chapter in Fiji media witchhunt

“PROVOCATIVE”, says the Paris-based media freedom group Reporters sans Frontières. The regime is “targeting us”, says the Fiji Times chief editor Netani Rika. “Fight on”, says expelled publisher Rex Gardner. He believes that if the Fiji media keep campaigning for freedom of information, the media will survive. His final message to his embattled Suva paper was:

I'm being kicked out of the country. I don't write what goes in the papers. Until the people who put pen to paper are being harassed as much as I am, I don't think there'll be a problem.
My freedom doesn't exist anymore but I think media freedom will exist if the newspapers push hard enough and continue to fight for their right and the public's right to freedom of information.
The onus is on the media to report sensibly and carefully and truthfully and cover all the facts and keep pushing for the public's right to know because that's the most important thing. Media freedom is one thing but it's the public's right to know that's so very, very important.

And the Fiji Times itself said “Time to get real”, pointing out the inconsistencies in the government claims against Gardner. Although the Fiji Times admitted guilt in the contempt of court case over a published letter to the editor (purportedly from Australia) that attacked the coup legality judgment and the judiciary, Gardner was pointedly not convicted by the judge:

Justice Thomas Hickie was abundantly clear in his ruling on the matter. Let us once again state for the record that Gardner was not convicted by the court. Instead, he was discharged conditionally and had signed all applicable documents pertaining to the course on Thursday, less than two hours after the case ended. We know the work permit has not expired and that the court did not find Gardner guilty. This means that the excuses given by [Commodore Voreqe] Bainimarama and [Immigration Director Viliame]Naupoto for the deportation are not the real reasons for Gardner's removal.

In fact, Gardner’s work permit was due to expire next month and he would have been leaving the country anyway. But as RSF said, this was a provocation aimed at the Pacific Islands Forum, and may well have hardened the PIF resolve against the Fiji regime. Papua New Guinea’s Prime Minister, Sir Michael Somare, did his best to stave off a bad outcome for Fiji, even issuing a copy of his statement during the special forum appealing for no “isolationist” penalty being imposed on Fiji.
But at the other end of the PIF scale, Australia and New Zealand were pushing for their hypocritical hardline ultimatum. Finally, Fiji was given until May 1 to announce elections by the end of this year or face expulsion and other sanctions.

A recent Café Pacific posting has been cited at length by Global Voices writer John Liebhardt with a reasonably balanced account of the bloggers debate on the “harsh” court response to the contemptuous letter. For the record, Café Pacific hasn’t softened its earlier criticisms of the media “climate of contempt”. But in the final analysis, media freedom must be defended at all costs if "democracy" is to be restored.
Improvements in the Fiji media cannot be achieved by systematic witchhunts against targeted news organisations. If the current regime and previous Fiji governments had spent even a fraction of their legal bills on sustained and committed media training and education in the country, then substantial progress would be made.

• David Robie talks to 95bFM's Bjornar
  
• Bloggers debate ‘harsh’ newspaper penalty
• Fight on, says Rex Gardner
• Ultimatum to Fiji
• Dev Nadkarni on Bainimarama's defiance
• Croz Walsh on electoral reform in Fiji
• Contempt case judgment
  

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
  

Global Voices version of the contempt letters affair

IRONICALLY, possibly the most informative summary of how Fiji bloggers have reacted to the "draconian prosecution" of the press, has been written by one, John Liebhardt, who has filed a few recent "overview" blogs on Global Voices about Fiji, ranging from the People's Charter to the environment. It doesn't seem to bother Liebhardt that he has been filing from (of all places) Ouagadougou in the African state of Burkina Faso - where he has lived for the past four years. (The IFJ statement statement is still the most direct challenge.) His latest blog on the contempt letters affair involving the Fiji Times and Daily Post kicks off:

For the second time this month, Fiji’s military government has threatened to send a newspaper editor and its publisher to prison for publishing a letter to the editor alleged to be in contempt of court. In mid-October, the Fiji Times and Fiji Daily Post printed a letter from a certain Vili Navukitu of Queensland, Australia, complaining about a recent high court ruling that legitimized the actions of the country’s president in dissolving the Parliament, and the elected government of Laisenia Qarase, immediately following the December 2006 coup that brought into power Commodore Frank Bainamairama.

The item has a few selected quotes from blogs, most anonymous and critical of the regime, but doesn't acknowledge that (1) the letter is arguably in contempt in the first place (although the response of the regime is overkill over what is vigorous debate); (2) contempt doesn't only apply to current court proceedings and the potential for impacting on a case, but also involves "scandalising" a court; (3) news media in Fiji clearly need to lift their game over the professional editing of letters. In countries like New Zealand, news media routinely check the bone fides of letter writers and edit letters over matters such as good taste and potential defamation (and potential contempt). There are also frequent allegations of bias over editorial selection of letters. In fact, letters is the largest category for complaints over fairness and balance against newspapers.

• Global Voices
• 'Draconian prosecution'
• Previous Café Pacific blog on this issue

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