An answer to Charlie Charters

I should be able to answer this question by making a comment on another blog, but just like Old Croz, neither Grubby Davis nor David Robie allow me to post comments on their blogs. Robie never has. Grubby and Croz started blocking me over the holidays after I began out-pointing them. I know what they will say. I also now moderate comments, but that is only to prevent Gwubby from posting anonymous defamation. Please feel free to post a comment and if it's not illegal I'll put it up. Please, somebody make a comment. Anybody.

Charlie Charters asks a question I can answer. Why was the Fiji Sun not taken to court for making numerous errors in a story, while the Times was fined $300,000 for an inadvertent publication? The answer is that it's not illegal to make mistakes, even several in one story. It is contempt to scandalise the court by publicly suggesting it might be corrupt, as several have done recently in Fiji. The courts are the highest level of authority in a democratic society. Undermining public confidence in them renders them moot. My theory is that this is another aspect the regime wishes to emulate of the control model in Singapore, where I spent three years. There, a compliant judiciary is used by the PAP as a weapon.

The Times is a serial contemnor after a 2009 conviction, for which it was fined $100,000.  The A-G was asking for a $500,000 fine, so it is a sawoff. The Times also aggravated the latest offence, which was committed in November 2011. I remember seeing that picture in the Times last June of Tai Nicholas making a $25,000 donation to the PM's flood relief fund. Juxtaposed as it was next to a story about his contempt, it left this reader wondering if the one would somehow ameliorate the other. More than a failure of journalism, however, what happened was a failure of management to successfully implement any systems to guard against such things after its 2009 conviction. And of course it was a massive failure of journalism. Just imagine, no one even read the whole story. No one. Another question is whether it mattered. If they had read it, would they have flagged it as possible contempt?

So I hope I answered that one forya, Charlie. Prolly more than you wanted. I have no answer for your other fine points, however. Feel free to leave me a comment. Please!

MINFO right if Fiji TV drew link to Media Decree

Fiji's Ministry of Information is absolutely correct if Fiji TV reported that the Fiji Times' contempt of court conviction was a case brought under the Media Decree, but it would hardly be the broadcaster's fault alone. Unfortunately this is a myth perpetuated by David Robie. Many countries prohibit disparagement of their courts, which are thus literally above criticism. Scandalising the court is an ancient law, which the UK Law Commission recommended late last year be abolished there. It is not on the books in the U.S. because of that country's strong press freedom guarantees under its First Amendment, and it has been found contrary to Canada's Charter of Rights and Freedoms, but it has been used against journalists in other jurisdictions, including Australia and New Zealand. Journalists in countries with such a law may not report anything which undermines public confidence in the legal system, no matter how well-justified it might be. Any journalism student who stayed awake during first-year Media Law class knows that. (At least, any of the students in my Media Law class would.) The offending news item has obviously been removed from the online version of the 6 p.m. Fiji TV newscast for 20 February. The lead item on the Times case by reporter Cheerieann Wilson that is archived on the Fiji TV website is introduced by anchor Viliame Lega, while the rest of the 6 p.m. newscast is anchored by Mere Nailatikau, so it is instead likely the corrected version from the 9 p.m. broadcast.

Do you know who else is absolutely right in this case? Justice William Calanchini is when he notes in his ruling that the contemptuous publication was entirely the fault of Times management and/or journalists. The fact that such a problematic piece slipped through the saftey net and wound up being printed in the Times on 11 November 2011 was the result of a breakdown in any systems the newspaper had in place to guard against such errors. Calanchini noted that the Times claimed staff and copy shortages that day led to the failure to detect the legal peril inherent in the article, which was a soccer story reprinted from the previous day's Sunday Star-Times in New Zealand. Almost unbelievably, noted Calanchini, it appears that "no person involved in the steps that lead to publication read the whole article."

Even if that was due to unforeseen staff absences and time deadlines, the fact that the article was not read in its entirety, that there was additional pressure due to staff being absent and a shortage of material with time constraints all point to either inadequate workplace systems or inadequate staff in terms of quantity and/or quality of staff.

Whether a fine of $300,000 is an appropriate penalty is another matter altogether, but as Calanchini notes, the Times was fined $100,000 for contempt in 2009. A fundamental principle of sentencing is the escalation of penalties if an accused does not learn from their mistakes and change their ways. Even worse, the Times aggravated the offence with the subsequent publication of an article and a picture of Oceania Football Confederation General Secretary of Oceania Tai Nicholas, who made a $25,000 donation to the Prime Minister's Flood Relief Appeal Fund. Not only did the article repeat details of the contemptuous story, noted Calanchini, but the accompanying photo suggested that the donation would somehow ameliorate the contempt, similarly suggesting the Fiji judiciary was corrupt.

Details of the contemptuous article, of course, are not legally allowed to reach Fijians, who will likely not get them from their country's media. The Internet, of course, is another thing, as they are widely available there. While the offending article has been removed from the Fiji Times website, it is still available elsewhere online. It involved OFC treasurer Muhammad Shamsud-Dean Sahu Khan, who had been disbarred in Fiji and thus should have been ineligible to sit as a senior member of its disciplinary committee. Nicholas told Sunday Star-Times reporter Simon Plumb that the situation had to be seen within the context of Fiji politics.

If we're honest, there's debate around the coup regime, who are ostracising lawyers who are involved with the constitutional reforms. You should be aware that with no judiciary there, his case has been reviewed by one Australian judge. It's not a court per se.

That drew the ire of Attorney-General Aiyaz Sayed Khaiyum, who issued contempt proceedings against the Times and Nicholas, who was earlier fined $15,000 in absentia when he did not appear for sentencing after pleading guilty. Sayed Khaiyum and Smith-Johns have rightly taken much heat for their blatant bullying of Fiji media, but in many ways journalists in the Republic are their own worst enemies. The need to raise journalism standards in Fiji has long been the contention of this corner and others, to which some in the Fiji media and elsewhere have taken great umbrage. The propensity for both Fiji TV and the Fiji Times to hire untrained cadet journalists straight out of Form 7, without training in Media Law or even Journalism, is coming back to bite them. The fact that no one at the Times bothered to even read the story all the way through is a harsh indictment on the paper's standards of journalism. Such indolence is rife in Fiji. Any journalist would have heard loud alarm bells go if they had merely taken the time to read such words as "coup regime, who are ostracising lawyers." Heads should roll. Hopefully this will not be the end of the 143-year-old daily, but even if it continues publishing its journalism may well be more chilled than before by this second contempt finding. That would make it frozen.

Who is to blame for Fiji’s malodorous media?

As an economist, Wadan Narsey has a good grasp on the centrality of journalism in a mediated society, if not on the exact processes by which its influence is exercised over the masses. Those processes, after all, are murky at best. They have been the subject of decades of research by mostly American scholars, who have enjoyed only limited success in revealing their exact workings. Much can be inferred through social scientific research, but not much can be proven. After years of studying such things, however, some truths become evident. Owners do not exercise complete control over either journalists or the published product, as Narsey seems to think. Try as they might, it should be added. Neither are journalists totally helpless, as he assumes in all but absolving them in the finger-pointing currently under way in assigning blame for the mess that Fiji’s news media have become.

Some critics are targeting the hapless journalists, who surely are minor cogs in the media machine. The reality is that journalists are totally under the control of editors and publishers, who in turn are ultimately controlled by the media owners.

That is exactly opposite to the contention of some conservative scholars that owners have little control over the news, which is instead produced by journalists, who tend to be more liberal. One Canadian study by a pair of political scientists actually found that owners had no control over what was reported, which was instead under the complete control of reporters.

Owners do not provide the labour for the product, therefore the product does not necessarily reflect the owners’ values. Instead, because journalism is in essence a human endeavour, it must reflect the values and political orientations of those who do it.

That laughable contention ignores the fact that what reporters write often never sees the light of day, as stories can be easily rewritten or even “killed” by editors, who are appointed by publishers and ultimately owners. Journalists certainly have some control over what news gets out, but whether they have more control than editors and their bosses  is questionable. The upshot of more than a half century of research on this topic is that what appears in the news is usually the result of a power struggle between editors and reporters. Editors tend to be older, more experienced, and more career-oriented. They are appointed by owners who tend to be more conservative than reporters, who have been repeatedly shown to be broadly liberal. Neither is all-powerful in the news production process.

Sociologist Warren Breed, a former journalist, well understood that every newsroom has its unwritten rules descended from on high in the corporate offices. His classic 1955 article “Social Control in the Newsroom” found that reporters are socialised into writing what editors and owners want to see published.  Herbert J. Gans, another sociologist, sat in on meetings between editors and reporters at major U.S. news media outlets in concluding in his classic 1979 book Deciding What’s News that the end product is the result of a “tug of war” between the two camps. Yet even these internal struggles over the news can be the least of the influences on what reaches the public. The classic book Mediating the Message, which is perhaps the most exhaustive compendium of influences on news content, sees five levels of sway. External influences, including government and public relations, can be considerable.

In Fiji, I would argue that the influence of government is paramount. One only has to look at the taming of the country’s news media by the 2009 Public Emergency Regulation and the 2010 Media Decree to see how completely the heavy hand of the dictatorship has muted any criticism of itself. As Narsey points out, cutting off millions of dollars in government advertising to the Fiji Times over the years and diverting it instead to the rival Fiji Sun has no doubt had something to do with how enthusiastic a government booster the Sun has become. The Times, on the other hand, has been threatened with a $500,000 fine for contempt of court over a soccer story it reprinted from a New Zealand newspaper that mentioned peripherally the lack of rule of law in Fiji. (This is not, as David Robie incorrectly asserts, an action taken under the Media Decree.) The Times has also been the subject of endless complaints by the government under the Media Decree, which provides fines of up to $100,000.

Narsey errs in urging the Media Authority to develop a code of ethics for media owners, publishers, editors and journalists. The Media Decree already includes a detailed code of ethics and practice. In fact, it is the exact same code that was adopted by the erstwhile Media Council, except that it adds fines and even possible prison sentences for violating its provisions. The problem with Fiji’s news media is not the lack of a code of ethics but instead the harsh penalties in the Media Decree, which encourage timidity by journalists, and the lack of transparency by the Media Authority. Professor Narsey rightly criticizes Professor Subramani, head of the Authority, for failing to clarify anything.

Why is it that despite three years of controversy over media censorship, Professor Subramani is not to be seen or heard? Subramani certainly has not come to the defense of the vulnerable journalists and editors who have been at the total mercy of the Regime, and who are being made scapegoats for the failings of the media owners.

Subramani, who teaches literature at Fiji National University, has been uncharitably called “Fiji’s Goebbels” by Oxford-based academic Victor Lal, for taking on the job as the regime’s “chief censor.” Narsey, who is the previous USP academic forced out by the regime for daring to question its initiatives, has been critical of Subramani’s lack of transparency before. Subramani has promised to lift the lid on the workings of the Media Authority, but to date very little information has been forthcoming, despite a requirement in the decree that its rulings be made public. Subramani’s 2010 promise that the Media Authority would work with journalists to navigate the Media Decree makes this lack of transparency curious indeed.

Subramani told FBC News the authority would be proactive in working with the media, and constructively help support the development of quality media services. It would also interpret the provisions in the media decree.

This suggests that Subramani may wish to reveal the business of the Media Authority but has been prevented from doing so by the regime, which is notorious for its abhorrence of transparency. The dictatorship’s desire to micromanage everything in Fiji makes its promise that democracy is on its way very difficult to believe. Far from the journalists or even media owners, it is the dictatorship that deserves the bulk of the blame for the sad state of Fiji’s media.

Do the ends justify the means?

Having once stepped over the line and commented on Fiji politics in the context of the abrogation of the Ghai Commission’s draft constitution, perhaps there is no going back. As mentioned then, because I am not a Fiji Islander (is that the correct term?) I usually try to confine myself to commenting on matters of Fiji media except when they intersect with politics. It’s just that it’s beginning to become apparent (to ME, at least) that controlling the media and thus controlling public discourse are central to a certain dictatorship’s master plan for retaining power in the disguise of a democracy. A step back at this point to look at the Big Picture might thus be useful.

There is no possibility of free and fair elections in Fiji if anti-discourse provisions of such decrees as the Media Decree, TV Decree, and State Proceedings Amendment Decree remain in place. This was pointed out in no uncertain terms by the Ghai Commission, which recommended that these provisions be lifted. That no doubt rankled the regime, which has spent the past few years putting these decrees in place. The supposed purpose of the Media Decree is to enforce responsibility in a media that have been seen as irresponsible in the past. In my reading of the record, this does indeed seem to have been a problem. Self-regulation in the form of the Media Council apparently did not prove an adequate mechanism to discourage bad behaviour by an often willful media. The problem is that the Media Decree goes too far because its harsh penalties, including six-figure fines and up to two years in prison, will inevitably have a “chilling” effect on the press and hence on public discourse. It is the metaphoric sledgehammer dispatched to swat a mosquito. Before long, your house has no walls. The TV Decree was obviously enacted last June to chill one particular media outlet, Fiji TV, after it broadcast interviews with two former prime ministers to the effect that a new constitution was not needed and that the acclaimed 1997 constitution was perfectly adequate for Fiji. And the State Proceedings Amendment Decree absurdly grants immunity from defamation lawsuits to government ministers. It is claimed to replace parliamentary privilege in the absence of that institution these days, but it would undeniably give members of the regime an unfair advantage in any elections. Word on the street in Suva, of course, is that someone threatened to sue the Attorney-General for slander, so he simply passed a decree preventing it.

There is also little possibility of international acceptance of such elections as free and fair. Thus the entire excruciating exercise that has been going on for the past several years could all be for naught if Fiji is not accepted back into the regional and international community because the regime’s preferred process was tainted. Besides, under the current power structure in Fiji the military can simply step in and take over if it doesn’t like something the government is doing, so its overbearing influence is the first thing that has to be removed. For the good of the nation, the military must be drastically downsized and the ability of the police and courts to enforce the rule of law must be increased. If members of the military dictatorship wish to stand for election, an interim administration, made up of people who are not standing for election, should be put in place well in advance of campaigning. Free and fair elections will not result otherwise. Nobody will be fooled into thinking so, no matter how contorted the bleatings of Grubby Davis.

The stated objectives of the Bainimarama regime are noble enough. Davis parrots them repeatedly as he smears regime opponents: “To smash the racial paradigm of the past and introduce the first genuine parliamentary democracy in Fiji of one person, one vote, one value.” This sounds all well and good until one examines the means by which the regime is pursuing its ends. It then becomes obvious that the resulting repression would be much worse than the previous chaos. A light hand is always preferred in regulation. Sophisticated and subtle encouragements of good behaviour are often more effective than sledgehammer proscriptions against bad behaviour that might also deter desirable conduct. Fiji’s interim government has laudably enacted some badly-needed laws against hate speech which should solve many of the problems seen in political journalism previously. The 2009 Crimes Decree created a new indictable offence, penalized by up to 10 years in prison, of spreading any report “inciting communal antagonism.”

65. (2) A person commits an indictable offence (which is triable summarily) if the person by any communication whatsoever including electronic communication, or by signs or by visible representation intended by the person to be read or heard—

(a) makes any statement or spreads any report which is likely to—

(i) incite dislike or hatred or antagonism of any community; or

(ii) promote feelings of enmity or ill-will between different communities, religious groups or classes of the community; or

(iii) otherwise prejudices the public peace by creating feelings of communal antagonism; or

(b) makes any intimidating or threatening statement in relation to a community or religious group other than the person's own which is likely to arouse fear, alarm, or insecurity amongst members of that community or religious group.

This brings Fiji in line with advanced societies which similarly ban hate speech. Some countries go farther than others, such as France and Germany, which controversially ban denial of the Holocaust. Some unfortunately hesitate to enact any laws against hate speech. The U.S. interprets its First Amendment, which guarantees free expression, as protecting even this kind of anti-social behaviour. The Crimes Decree breaks ground by including “any communication whatsoever including electronic communication,” which is obviously designed to encompass the Internet. (Laughably, this provision has been interpreted by some as including even gossip.) But the decree controversially also purports to extend its jurisdiction beyond the national boundaries to apply to “any citizen of Fiji in any place outside of Fiji.” This is obviously designed to include blogs, some of which originate offshore but are available online in Fiji. Such an extension of jurisdiction into other countries would be subject to legal challenge as ultra vires, or beyond the Fiji government’s power.

So while everybody would like to see a civilized public sphere in Fiji, if not a muted one, there is a great likelihood that the regime’s reforms, well-intentioned or not, may throw out the baby of political discourse with the bathwater of an irresponsible press. If it is indeed the regime’s intention to introduce the first genuine parliamentary democracy in Fiji, and not merely to perpetuate its hold on power, the reforms it has blundered about with need to be thoroughly re-thought. That will not be possible by following Commodore Bainimarama’s intended course as stated to ABC in a 2010 interview: “We need to stop all people speaking out against the government and its reform.”