Press freedom guaranteed, but only if. . . .

Press freedom is guaranteed in the proposed Bill of Rights contained in the draft constitution that was delivered by Yash Ghai and his team last week. For press freedom to become a reality in Fiji, however, the document lists provisions of the 2010 Media Industry Development Decree and other laws made by the interim government that must be repealed. The draft constitution’s freedom of expression guarantees are almost identical to those contained in the 1997 constitution, with a couple of additions, including academic freedom (wouldn't that be nice?) and "freedom of imagination." Here’s the new section.

Article 27  Freedom of expression, publication and media

(1) Everyone has freedom of expression and publication, which includes––

(a) freedom to seek, receive and impart information, knowledge and ideas;

(b) freedom of the press, including print, electronic and other media;

(c) freedom of imagination and creativity; and

(d) academic freedom and freedom of scientific research.

The subsequent limiting section is considerably different from that contained in the 1997 constitution, however. (NOTE: A listing of allowable limitations on freedom of expression that was dropped from the 1997 constitution has been deleted, as those limitations are allowed for elsewhere in the draft constitution.) The 1997 constitution’s hate speech provision has been retained in the draft constitution, but with reference to a longer list of prohibited types of discrimination. Under Article 21 (3), discrimination is prohibited on the basis of 20 categories: “birth, age, ethnicity, social origin, race, colour, primary language, religion, conscience, belief, culture, sex, gender, gender identity, sexual orientation, pregnancy, marital status, disability, social status or economic status.” That compares to the dozen types of discrimination prohibited in the 1997 constitution: “race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or opinions or beliefs.” Here’s the complete limiting section.

(2) Freedom of expression and publication does not protect–

(a) propaganda for war;

(b) incitement to violence or insurrection against this Constitution; or

(c) advocacy of hatred that––

(i) is based on any prohibited ground of discrimination listed or contemplated in Article 21 (3); and

(ii) constitutes incitement to cause harm.

(NOTE: An extraneous subsection to this article appeared earlier by mistake and has been deleted.)

Licensing of media is allowed in the draft constitution only for the allocation of broadcasting frequencies. Other media, it explicitly states, "must not be subject to licensing." Procedures for regulating the airwaves, it adds, "must be independent of control by government, political interests or commercial interests." Article 57 Regulation of public media begins by stating: "Free and open discussion and dissemination of ideas is essential in a democratic society." State-owned media, it goes on to state, "are free to determine the editorial content of their broadcasts or other communications independent of political or government control." State-owned media must be impartial, it adds, and must allow divergent views and dissenting opinions. In an apparent swipe at the Media Decree's unilateral regulation of media content, the draft constitution explicity reserves that power for elected legislators, stating: "An Act of Parliament must establish a body to set media standards and regulate and monitor compliance with those standards." Such a body must be independent of government control and political or commercial interests, according to the draft constitution, and must "reflect the interests of all sections of the society." Candidates and political parties contesting an election, states Article 60 Campaigning, may not be denied reasonable access to state-owned media.

In a separate Explanatory Report, the constitution commission states that  laws that are inconsistent with its proposed Bill of Rights would have to be repealed or amended, including the Media Decree, the Television Decree, and the State Proceedings Amendment Decree. Included in the sections of the Media Decree to be repealed is the controversial Section 8, which vaguely prohibits publication of anything "against public interest or order, or national interest, or which offends against good taste or decency and creates communal discord." As Shailendra Singh pointed out, "what is for or against the public interest can be a highly debatable issue."

The government can have one view, the opposition another and the media an entirely different one. Some believe plurality of views is healthy for Fiji. Others believe Fiji needs a benevolent dictatorship. But the question remains: Will a newspaper be guilty of a crime if it were to carry a strident editorial opposed to the government’s stand on an issue concerning the national interest?

Also to be dropped from the Media Decree under the draft constitution would be the Media Code of Ethics and Practice, under which journalists are now subject to sanction for what were once ethical guidelines. So is the provision that decisions under the decree may not be appealed to the courts, which the constitution commission has taken a dim view of generally. "The aim is that everyone will have physical access to a court, and to an appeal to a higher level of court," it states in the Explanatory Report. Also to be repealed is the provision of the 2012 Television Decree that prevents stations from going to court to appeal the lifting of their licence by the government. So is the section of the 2012 State Proceedings Amendment Decree which grants government ministers and media outlets immunity from defamation lawsuits for making or publishing defamatory statements.