Newspaper Accused Of Reducing Confidence In Fiji Judiciary

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Article alleging ‘no judges in Fiji’ leads to trouble for Fiji Times

By Samisoni Nabilivalu

SUVA, Fiji (Fiji Times, July 10, 2012) – High Court Judge William Calanchini yesterday heard submissions in contempt of court proceedings brought by the Attorney-General Aiyaz Saiyed-Khaiyum against The Fiji Times.

The newspaper, its Editor-in-Chief Fred Wesley and former publisher Brian O'Flaherty are alleged to have scandalized the judiciary by publishing an article in November last year which contained a comment allegedly made by Oceania Football Confederation secretary-general Tai Nicholas about Fiji's judiciary.

The article was written by a New Zealand journalist and was published in a New Zealand newspaper before being reprinted in The Fiji Times.

New Zealand Queens Counsel, Julian Miles, and Suva lawyer, Jon Apted, represented the newspaper while the AG was represented by the Acting Solicitor-General, Sharvada Sharma who appeared with Monita Devi.

The newspaper's Editor-in-Chief, Wesley was present in court but its former publisher O'Flaherty, was absent because he is recovering from surgery.

At the commencement of today's hearing, Mr. Miles objected to a claim in Mr. Sharma's written submission that the article was also published on the newspaper's website exposing it to international readers.

Mr. Miles said the notice of motion which set out the charge against the newspaper referred only to the one publication and made no reference to any republication on The Fiji Times' website.

He said they should not have to answer to something that was not in the charge. He also pointed out that there was no direct evidence before the court of any republication on the website. In reply Mr. Sharma said it was well-known that The Fiji Times had a website and that the website was referred to in one of The Fiji Times' affidavits.

Justice Calanchini said he would rule on the objection as part of his judgment.

Mr. Sharma then submitted that a quotation attributed to Mr. Nicholas that there were no judges in Fiji was a contempt of court.

He said it was an attack on Fiji's judiciary and raised the risk of reducing public confidence in the judiciary.

He said it was not necessary to prove the public's confidence in the judiciary had actually been impaired, but that they just needed to prove the story raised the risk of it becoming so.

Mr. Sharma said editorial procedures had not been followed by the journalist involved.

He submitted that even though the newspaper's editor and publisher were not directly involved in the publication of the story, the law was that they should be held liable together with the company that owned the newspaper.

He said it was common knowledge the newspaper had Fiji's largest circulation and readership which it boasted about daily and that stories published in print were uploaded on their website.

Mr. Sharma invited the court to find all the respondents guilty of contempt.

Mr. Miles in his reply said the context of Mr. Nicholas' comment was important as the question was what a fair and reasonable reader of The Fiji Times would understand from the story and comment. He said as a result of a government decree in 2009, there had for a short period in fact been no judges in Fiji. Readers of The Fiji Times, he said, were aware from newspaper reports that subsequently judges were appointed and that they hear cases fairly and impartially.

He questioned whether the article really risked impacting the public's confidence in the judicial system and highlighted that the law allowed the public the right to appropriately criticize the bench or judges. He also referred to cases in which courts have recognized that the law allows people to make mistaken claims and that mistaken statements are not necessarily contemptuous.

He said the story had been published in the sports section which was in the back of the newspaper where readers would not expect to find stories on contentious political issues.

He said Mr. Nicholas' comments were the mistaken views of an ignorant and ill informed foreign sports official who did not know about the situation in Fiji and that a fair and reasonable reader would see them as such.

Mr. Miles also questioned whether it would be right to find the newspaper's publisher and editor guilty in this case when neither had been at work on the Sunday in question and there was evidence that they had set up systems to avoid what had happened in this case. He acknowledged that English case authorities said that publishers and editors who were not involved can be found liable but referred the court to a New Zealand Court of Appeal case where it was questioned whether it was necessary or fair to do this.

Judge Calanchini said he would need time to write his judgment.

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