Home » Uncategorized » The sleight of hand of the draft constitution

The sleight of hand of the draft constitution

Thursday, March 21, 2013

Draft constitution giveth, then taketh away

Media freedom guarantees in the Draft Constitution of Fiji are identical to those in the version proposed by the Ghai commission. Then you get to the next section, which wasn’t in the Ghai draft. It says the government of the day can pass laws limiting media freedom. In effect, with one hand the constitution gives Fijians a right, and with the other hand allows the government to take it away. The list of allowable reasons (read excuses) to limit media freedom is HALF AGAIN LONGER than the sections “guaranteeing” media freedom.

17.––(3) A law may limit, or may authorise the limitation of, the right to freedom of expression in the interests of––
(a) national security, public safety, public order, public morality, public health or the orderly conduct of elections;
(b) the protection or maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including––
(i) the right to be free from hate speech, whether directed against individuals or groups; and
(ii) the rights of persons injured by inaccurate or offensive media reports to have a correction published on reasonable conditions established by law;
(c) preventing the disclosure, as appropriate, of information received in confidence;
(d) preventing attacks on the dignity of individuals, groups of individuals or respected offices or institutions in a manner likely to promote ill will between ethnic or religious groups or the oppression of, or discrimination against, any person or group of persons;
(e) maintaining the authority and independence of the courts;
(f) imposing reasonable restrictions on the holders of public offices in order to secure their impartial and confidential service;
(g) regulating the technical administration of telecommunications; or
(h) making provisions for the enforcement of media standards and providing for the regulation, registration and conduct of media organisations.
This is exactly what the Ghai commission warned against in tabling its draft constitution in December. In order for its guarantees of media and other freedoms to have any meaning, the commission led by reknowned legal scholar Yash Ghai pointed out, several of the 241 decrees passed by the interim government would have to be repealed or modified. That would, of course, include the contentious 2010 Media Industry Development Decree. It has cast a deep chill over Fiji journalists by subjecting them to fines and even prison sentences for publishing or broadcasting anything deemed “against public interest or order, or national interest, or which offends against good taste or decency and creates communal discord.” In a separate Explanatory Report, the Ghai commission insisted that  decrees inconsistent with its proposed constitutional rights would have to be repealed or amended, including the Media Decree, the Television Decree, and the State Proceedings Amendment Decree. In its version, the interim government instead explicitly sets out its right to impose such laws. In effect, it renders the stated “rights” meaningless.
The same sleight of hand is used in subsequent sections “guaranteeing” the rights of Freedom of Assembly, Association, Movement, and even Religion. The regime’s Decree Spree has been limiting these rights for years, and the Bainimarama government isn’t about to have all its hard work undone by any pesky Constitution. Its Public Emergency Regulation, which imposed martial law in 2009 and was only lifted last year, took away most of those rights. Even though the PER has been lifted, government decrees have since taken away such basic rights as Freedom of Assembly, as seen in the recent cancellation of the planned “Take Back the Night” march because it inconveniently coincided with release of the torture video. In effect, Fiji has been declared to be in a permanent state of emergency and rendered nothing less than a Police State.
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24 thoughts on “The sleight of hand of the draft constitution

  1. Marc you can’t help yourself, can you? Why don’t you emphasise the good things in my new constitution? Have you ever seen such an iron glad immunity for criminals? Have you ever seen a constitution that is so finely tuned to Khaiyum’s and my own interests? This surely must impress even a bitter has been like yourself. Go and read Crosbie’s blog. The old fart may be a bit demented but he knows a good constitution when he sees one!

  2. what did u teach ur studens doc?
    ur sarcasm doesnt wash
    u standing up for indigenous rights or u just like the rest of academics?
    not one of urs have said outright, u cannot ignore the rights of the indienous peoples..who make up two thirds of the population.
    u go on the same track as yeah ghai, because u majority u dont need protecection?
    look at ur ingdigenous peoples in canada..the most marginalised group in ur society.
    how about the oil sands? the highest rate of cancer. the poor natives cannot even swim in their rivers.
    u hypocrite like the rest of the usp academics here??
    go figure.

  3. I believe all people are equal. That’s about it.

    I am actually trying to atone for the sins of my forefathers. White men. Some things could be improved. There and here. People were not as enlightened in the 1700s and 1800s. Some still aren’t.

    i went to Fiji believing that better journalism would bring a better society. I still believe that. But the old habits seem to be deeply entrenched. Bad habits, needless to say. Almost amazingly so.

  4. What did I miss?

    How did we get from NON media freedom in the BKC to the rights of indigenous Canadians? This is the same lame MO that the illegal & treasonous regime predictably deploys everytime they cannot refute the substance.

    Dr Edge, Greg Bullard & Prof Narsey’s recent views have all made rational sense to the sane except to the warped minority — they will all finally feel the wrath of voters & taxpayers at the polls.

    May your fortitude never wane gents!

  5. It’s the bait and switch that dominates the rhetoric there. The ad hominem attacks. It’s a limited repertoire. You have to raise the level of discourse. That can only be done by education.

  6. Your type of education we at USP did not want. Try doing what you did at USP to Canadian students and see what happens to you. Is that why you had to come to Fiji to get a job?

  7. Canada: Charter of Rights and Freedoms (1982)

    Section 1: Guarantee of Rights and Freedoms“The Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

    Section 2: Fundamental Freedoms“Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”

    Restrictions

    In addition, there are many laws, criminal and common, provincial and federal that place legal restrictions how the press gathers information and what it publishes. Some of these laws and procedures are:

    1. Court decisions involving news media, based on the Charter

    2. Criminal laws: against trespass and recording communications; to force journalists to reveal their confidential sources, to appear as court witnesses

    3. Restrictions on trial coverage, such as publication bans on evidence and identity of witnesses.

    4. Search warrants and injunctions: warrants to search newsrooms and homes of reporters. Injunctions to stop publication.

    5. Civil or non-criminal law: The main restriction is defamation law, but there is a host of other restrictions in covering family court, disciplinary tribunals and so on.

    6. Restrictions on newsgathering and publication due to:

    • Anti-terrorism laws

    • Elections Act

    • Young Offenders Act

    • Privacy laws and access to information laws

    • Copyright law

    • Broadcast law and decisions of regulators.

    While such media restrictions are narrow, the Fijian media restrictions are much broader in scope, nevertheless there are media restrictions in most western countries.

    So Marc you see Fiji’s media Laws aren’t draconian at all, but slightly;y more restrictive.

  8. “…but slightly;y more restrictive.”

    Wow.

    You can actually hear the wind howling through the gaps in your argument there, Sai.

    Did you really think any of that copy-paste would be convincing, or just in your own head? NZ must be so glad to have someone of your abilities – maybe USP has a job opening?

    Who knows, maybe the class 2 fail “Anon” above would love to be your student too?

    Common law restrictions are in most old commonwealth states and republics – they are not particularly restrictive. But as Marc points out, when you have a government that can force the media to bend to its will in fear of suffering large monetary penalties and personal imprisonment, this is no “free speech”.

  9. @Ratu Sai

    Section 1 is the limiting clause in the Canadian Charter of Rights and Freedoms. I’m sure you will admit that it is brief compared to the laundry list of limits imposed on press and other freedoms by the Draft Constitution of Fiji. Note that the language you have included after the two quoted sections, headed “Restrictions,” is not in the Charter but instead comes from a web page explaining its effects. Of course, journalists in all countries are subject to the laws of the land, including, for example, court orders protecting the rights of accused persons to a fair trial.

    I have gone into some detail in replying to your comment and will post the remainder as an entry on my blog.

  10. Folks lest we forget……..the 1997 constitution still lives despite the regime’s forceful word that it is dead. All their decrees are self serving to protect their crime but justice awaits! Its all about their escape route but they aren’t going far because each challenge along the way has only been met with counter move by their opponenst, forcing them to produce decrees for their short-lived comfort. This journey aint finished just yet because opponents of this nightmarish regime are in for the long haul. We will see what becomes of this yet again manufactured draft that the junta is now proposing as the people’s constitution!!!

  11. How strange that marc edge got it in one what that demented fool of a blogger frankly bananas who probably spent all his life in Fiji (cocooned lols!), DOES NOT GET. Yeah keep up with your demented posts frankly bananas, looks like you’re starting to believe in your own LIALIA.

  12. Sai is just being a dumb ass…there is no comparison between the Canadian Charter and Voreqe’s draft constitution. Me i cara ga ni demudrau omudrau constitution.

  13. Marc.

    I have read your commentary, now what part of your “allowable reasons (read excuses) to limit media freedom” you disagree with?

    Is there any difference with:

    b) the protection or maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including––

    (i) the right to be free from hate speech, whether directed against individuals or groups; and

    (ii) the rights of persons injured by inaccurate or offensive media reports to have a correction published on reasonable conditions established by law;

    (d) preventing attacks on the dignity of individuals, groups of individuals or respected offices or institutions in a manner likely to promote ill will between ethnic or religious groups or the oppression of, or discrimination against, any person or group of persons;

    As oppose to the rulings in Saskatchewan Human Rights Commission v. William Whatcott?

  14. Radio Toce.

    Do us a favour boy take you and your anonymous sprog and bask in each others ignorance somewhere faraway where you like minded friends have idiocy as a mentor.

  15. Sai,
    I think it’s silly to enshrine in the constitution one’s right to have a correction published in the newspaper, or to attempt to protect the “dignity” of respected office holders. I think a general limiting clause such as contained in Section 1 of the Canadian Charter of Rights and Freedoms or Section 48 of the Ghai draft would make more sense. Then it’s up to the courts to decide if legislation infringes unreasonably or unjustifiably on fundamental rights guaranteed in the constitution. Take, for example, provisions against hate speech in the Crimes Decree. Would they be found by the courts to be a reasonable and justifiable limitation on constitutional guarantees of media freedom? I suspect they would. I am not so sure about certain provisions of the Media Decree.

  16. The problem is that in Voreqe’s world the Courts play no role in challenging the legality of government decisions. While that is available in Canada there is no such right in coup coup land. The irony of it all is that while the idiot kabawaqa Sai enjoys democracy in NZ he blindly supports Voreqe’s constitution…na gusu va poci.

  17. Marc.

    “I think it’s silly to enshrine in the constitution one’s right to have a correction published in the newspaper, or to attempt to protect the “dignity” of respected office holders”

    With the above in mind, what do you know of “responsible communication”?

  18. @ Sai

    The concept of “responsible communication” is a pretty way of saying: you can only write what the state believes is ‘responsible’; i.e. they are deciding that anything that does not agree with the government’s policy is “irresponsible” because it points out examples of their idiotic and draconian policy, their venal corruption or is simply embarrassing or uncomfortably close to the truth about what the idiots calling themselves ‘leaders’ are really doing to the nation.

    The whole point of having freedom of speech is to ensure that we maintain a separate executive, legislature and judiciary, as well as allowing the free flow of information which is paramount to truth and democracy.

    This then ensures that there are checks and balances over property rights, freedoms and criminal conduct.

    This is why when the newspapers decried the SDL’s conduct and stupidity in the doomed Qoliqoli bill, the SDL were forced to back down – through the media and political discussion, the SDL were made RESPONSIBLE for their policy and forced to face the truth that it did not work.

    The Dictatorship does not want to be responsible for anything it does, unless it serves their purpose. They blame everyone else for their mistakes because they prefer to behave like spoilt children.

    So Sai, crawl back to your idiot-hole and try to think about it again. 0 out of 10. Would not bang.

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