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.”