Death by a Thousand Decrees

Death by a Thousand Decrees

www.theaustralian.com.au/news/features/death-by-a-thousand-decrees/story-e6frg6z6-1225852925119

By Asia-Pacific editor Rowan Callick

SYDNEY (The Australian/Pacific Media Watch): Last Wednesday morning, Fiji's military government released its long-anticipated, 49-page draft decree on the media.

Representatives of the media industry were instructed to assemble at the office of the Attorney-General, Aiyaz Sayed-Khaiyum, just two hours later to deliver their response.

If this document becomes law with only minor adjustments, as precedent indicates is likely, Fiji will suffer one of the most restrictive climates for free speech and the media in the Asia-Pacific.

This year the Rudd government and the New Zealand government led by John Key have signalled a softening of their formerly tough line on the Fiji regime.

On the eve of a meeting in Canberra with Fiji Foreign Minister Ratu Inoke Kubuabola two months ago, Australia's Foreign Minister Stephen Smith said: "We remain open to a conversation with the interim regime about a pathway back to democracy, a pathway back to respect for human rights, freedom of political activity and freedom of association."

The latest decree from the Fiji regime makes that conversation more difficult, raising starkly the question as to whether it has any interest in participating.

Under the decree:

* All media must register with a media industry development authority whose director is appointed by the responsible, but undefined, minister. Organisations that publish material deemed by the authority to be "against the public interest or order, against national interest, offends against good taste or decency, or creates communal discord" are liable to a fine of up to A$279,000, and journalists to prison for up to five years, penalties widely attached to all the decree's provisions.

* At least 90 per cent of the beneficial ownership of any media organisation must be held by Fiji citizens permanently living in Fiji.

This would require The Fiji Times, the oldest - founded in 1869 - and largest of the country's newspapers, to change hands or close. It is owned by News Corporation, also owner of The Australian. Two publishers of The Fiji Times have been expelled from Fiji, Evan Hannah in 2008 and Rex Gardner last year. The present publisher is Anne Fussell. Russell Hunter, publisher of The Fiji Sun, also was expelled in 2008.

* A media tribunal, chaired by a person qualified to be a judge, will hear complaints made to the authority. There will be no recourse to the courts and conventional rules of evidence will not apply.

* Any broadcaster or publisher must submit to the minister in advance all material that may be deemed to "give rise to disorder", or undermine the government.

* The Fiji Media Council's code of ethics - previously policed voluntarily by the media itself - is incorporated into the decree and hence given punitive teeth by the authority and tribunal. This includes statements such as "media organisations have a duty to be balanced and fair in their treatment of news and current affairs".

* A general code of practice for advertisements is also incorporated into the decree. The damages for breaching these codes are unlimited, "as may be deemed appropriate" by the tribunal.

Media must hand over to the authority any document it considers relevant, and officers of the authority may "use such force is as reasonably necessary "to obtain such material.

* A person who owns a beneficial interest in one media outlet cannot hold more than 5 per cent of a second media organisation.

The hyper-active Aiyaz Sayed-Khaiyum, who is also Justice, Anti-Corruption, Public Enterprises, Industry, Investment and Tourism, and Communications Minister, and is widely considered the second most influential figure in the government led by Frank Bainimarama, is reviewing the decree. He is expected to publish the final document early next month.

Sayed-Khaiyum told the media representatives at their consultation last Wednesday that the stringent censorship imposed under the Public Emergency Regulations, under which they have been operating for a year, will be replaced by the new decree.

The government has been remoulding Fiji through the militarisation of public life and through the issuing of large numbers of decrees in the absence of any Parliament. It has issued more than 50 decrees since the government, which seized power in a coup in December 2006, abrogated the constitution a year ago.

Bainimarama has told media organisations unhappy with the proposed decree to "change their mindset" in support of the national interest: "My message is for them to reconsider their position and they need to understand the big picture and how government wishes to engage with them in taking the nation forward. Government cannot and will not allow vested interests to take over the national interest."

Sayed-Khaiyum has stated that elements of the draft decree emerged from several countries, including Australia. His office did not respond to questions as to whether any Australian organisation had been especially invited to provide assistance.

Recently, however, Australian law firm Minter Ellison has reviewed Fiji's Companies Act on behalf of the military government.

Brisbane partner Bruce Cowley, who led the review, said yesterday: "I am just a humble company lawyer and the opportunity to draft corporations legislation was just attractive to me. I am not political and was making no political judgment."

In the meantime, yet another controversial decree has been issued. Under it, Bainimarama hopes to protect himself from any future recourse for leading the coup. He, former president Ratu Josefa Iloilo, officers and members of the army, police and prisons service, and "all other persons who acted under the directions, orders, instructions or command of any of the above persons", except those found guilty of involvement in the previous coup of 2000 led by the still jailed George Speight or in the military mutiny of November 2000, are granted "absolute and unconditional immunity from any criminal prosecution and from any civil or any other liability in any court or tribunal".

Late last year, Sayed-Khaiyum acquired the absolute power to renew or redistribute broadcasting licences under another decree, which stated that no compensation could be claimed as a result of the cancellation or reallocation of a broadcasting licence, and that no court, tribunal or commission had the jurisdiction to entertain any challenge over the loss of a licence. But anyone broadcasting in contravention of the minister's directions could be jailed for up to five years.

The dominant television broadcaster, Fiji TV, is owned by Yasana Holdings, which represents the 14 ethnic Fijian provinces and also owns the monopoly Papua New Guinea TV broadcaster EMTV.

Fiji TV established a reputation for impartial news coverage, although the military installed two officers on its board following the coup three years ago.

It, like the country's other media, is now subject to stringent military censorship.

All the country's VHF TV frequencies are in the hands of Fiji TV. It is expected that at least one of these frequencies will be reallocated to government-owned Fiji Broadcasting Corporation, which operates a radio service and has expressed an intention to establish a TV network, towards which it has already allocated several million dollars.

The corporation's chief executive is Riyaz Sayed-Khaiyum, younger brother of the Attorney-General and formerly a television journalist.

Akuila Yabaki, chief executive of the Citizens' Constitutional Forum, who was one of the 50 people who participated in the media decree consultation, says that the Media Authority should contain "credible, experienced people from the media industry", that it should be an independent - not government controlled - body, that subjective terms such as "offends good taste and decency"; and "national interest", should be struck out, that penalties should be proportionate, and that "the broad powers given to the media authority are concerning".

Reporters Without Borders says of the draft: "Nowhere is press freedom mentioned . . . It appears to be designed to enable the military government to tighten its grip on the media: control of media ownership, control of content and control of the dissemination of news within the country."

A new crimes decree extends the geographical jurisdiction of the government beyond Fiji and targets internet criticism. It provides that offences may be deemed to be committed by any citizen, corporation or resident of Fiji; "in any place outside of Fiji".

Offences may be considered to have occurred partly in Fiji "if a person sends a thing or causes a thing to be sent from a point outside Fiji to a point in Fiji"; or "from a point in Fiji to a point outside Fiji".

An elaboration of this clause makes explicit that this is aimed in part at internet criticism of the regime, for it specifies that this "thing" might be "an electronic communication".

Bob Pratt, a marketing expert who is the secretary of the Fiji Media Council, said yesterday that the organisation would consider, once the decree is finalised, whether it will continue to operate.

"At the moment there would seem to be a reason to exist," he says. He says there has always been a view in the Fiji community that breaches of the code of ethics should be subject to stronger action than apologies, and that "we should now wait to see whether the government takes on board the suggestions made" at the consultation, before launching into strong opposition.

The Pacific Area Newspaper Publishers Association's chief executive Mark Hollands is not prepared to withhold his critique, however, saying: "This draft appears aimed at intimidating journalists. It represents the continued denial of a free press in Fiji.

"It is impossible to conceive how this will assist in the development of Fiji media or of the country as a whole. It is my hope that the governments of Australia and New Zealand can bring to bear suitable diplomatic pressure, to once again allow a free press to flourish in Fiji.

In former years, Fiji was widely perceived as a model of liberal development in the Pacific Islands region of which it was the hub, even following the coups led in 1987 by Sitiveni Rabuka, who went on to become a strong advocate of democratic reform and was elected prime minister.

This year Rabuka's state pension has been scrapped by the Bainimarama government on account of his continued outspokenness.

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