State v Riogi [2001] FJHC 61; Haa0060j.2001s (20 August 2001)

Fiji Islands - The State v Riogi - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 060 OF 2001

(Suva Magistrates Court Case No. 3322 of 2000)

BETWEEN:

THE STATE

Appellant

AND:

GAGAJ RAFEOK RIOGI

Respondent

Counsel: Mr W. Kurisaqila for Appellant

Mr T. Fa for Respondent

Hearing: 3rd August 2001

Judgment: 20th August 2001

JUDGMENT

On 29th March 2001, the learned Chief Magistrate acquitted the Respondent of the following charge:

Statement of Offence

SEDITION: Contrary to Section 66(1)(a) of the Penal Code, Cap. 17.

Particulars of Offence

GAGAJ RAFEOK RIOGI between the 17th day of November, 2000 and the 12th day of December, 2000 at Rotuma in the Eastern Division, did an act with a seditious intention namely, to promote feelings of ill-will and hostility between different classes of the population of Rotumans in Fiji.

The Facts

The facts of the case as led by both prosecution and defence, were largely undisputed and uncontradicted. The only real questions were whether the accused had a “seditious intention” and whether the defence of “change by lawful means”, was available to him.

The facts are that in 1987, moves were made on Rotuma to set up the Malmahau Clan, a clan the Respondent said existed before the birth of Christ, and other elders said had no history in Rotuma. In 1987, after the military coups, the chief and king of the Malmahau Clan was ‘installed, amid plans for the declaration of a separate independent Rotuma. A letter was written by members of the Clan to the effect that the seven Rotuman District Chiefs were replaced by members of the Clan, and he and others were convicted of Sedition in the Suva Magistrates Court. Those convictions were set aside on appeal on the ground that the Magistrate had failed to consider the statutory defences. An apology was then given to the Rotuma Council by representatives of the Clan, the “title” lapsed, and the king of the Clan, one Gagaj Sau Lagfatmarau, returned to his home in New Zealand, where he now lives. In the words of one prosecution witness, “peace returned to Rotuma.”

In the year 2000 however, and after the political crisis of May 19th, the Respondent, who is an Australian citizen and goes by the title of Gagaj Rafaeok Riogi (a.k.a. Sakimi) with the King of the Malmahau Clan began to make moves to revive the Clan and its leadership. He and others decided, that it was time the Clan had a chief, to hold the title (formerly held by one Joe Andrea who had returned the title to the Rotuma Council) of Gagaj Kausakmua. On 23rd November 2000, the Respondent installed Rigamoto Tonu, as the Gagaj Kausakmua. There is no real dispute that the installation displeased a number of Rotumans. It certainly displeased the Rotuma Council, and in particular the District Chief for Noatau (where the Malmahau Clan is based) Gagaj Maraf. Indeed, the evidence was, that only 10 to 20 people attended the installation.

The evidence led by the prosecution was that this act of installing the Gagaj Kausakmua, was more than a breach of Rotuman custom. The evidence was, that the leaders of the Malmahau Clan believed that Rotuma should be an autonomous independent (of Fiji) state. The Clan made submissions to the Constitutional Review Commission (the Reeves Commission) to that effect. Further, on the 18th of July 2000 the Gagaj Sau Lagfatmarau, declared the existence of the sovereign State of Rotuma (page 92 of the Court Record), and announced an official government with ministers holding portfolios. The Respondent’s name is listed beside the portfolio of Minister for Home Affairs. However the document of “declaration” does not hold the Respondent’s signature.

Another document tendered by the prosecution at the trial, shows that a petition had been signed on 18th July 2000 purporting to support a new Constitution for the “Sovereign State of Rotuma.” It has 68 signatures. The document is headed “Rotumans Accepting Independence.” It was found in the Respondent’s possession.

Another document which was exhibited at the trial was a document (at page 103) titled “Sovereign Master Lease.” The document purports to grant 50 acres of real estate leasehold for 99 years to the Dominion of Melchizedek (a reference to a “state” formed by Gagaj Sau Lagfatmarau). The land granted to the Dominion by one Anise Ferati “co-sovereign owner and sole representative of the other family owners of more than 50 acres of real estate on the main island of Rotuma, Juju District and Malhaha District” was for the purpose of developing a copra plantation and a Copra Corporation. A similar document was tendered showing a grant of land to the Dominion of Melchizedek by one Hiagi Apao “owner” of Solkope Island.

A further document, a computer print-out from a website www.rotuma.org.news.htm, titled “The Rotuma Truth” states that the Fiji Army was planning an invasion of Rotuma on the 19th of August 2000 and that the Secretary of State and Foreign Minister of the “Sovereign State of Rotuma” Mr Taraivina Rae Costello, was seeking international support to avoid conflict and bloodshed.

This document, also found in the Respondent’s possession by the police reads at paragraph 3:

“The people of Rotuma declared their independence from Fiji in July of this year, at the time that Fiji’s Constitution was suspended and under military control following a coup attempt by George Speight. Rotumans did not resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, rather joined together in a spirit of brotherhood to determine their own destiny.”

A further computer print-out titled “Its Official! Rotuma declares Statehood” (also found in the Respondent’s possession), reads inter alia:

“The Sovereign State of Rotuma came into being on July 18, 2000 through the signing of its Constitution on Rotuma Island during the previous week in the District of Juju.

Leading the signing ceremony was the King of Rotuma, followed by his new cabinet and dozens of Rotuman islanders, including a chief, sub-chiefs and many humble Rotumans that have desired independence from Fiji.”

The installation, by the Respondent, of the Gagaj Kausakmua, must therefore be seen in the light of these developments. In particular, it must be seen in the light of the political and

social aims of the Malmahau Clan, aims which were evidently well-publicised and known and shared by the Respondent.

The prosecution called a number of witnesses at the trial. The evidence was that the District Chief of the Noatau District, Gagaj Maraf, was not consulted on the installation of the Gagaj Kausakmua. Indeed the former holder of the title had relinquished the title and had apologised to the Rotuma Council.

The Gagaj Maraj Solomone gave evidence that the Malmahau Clan came into being in 1982, and that the last declaration of independence by Henry Gibson (a.k.a. Gagaj Sau Lagfatmarau) and Taraivini Costello, in1987 had caused trouble on Rotuma. He said that the “declaration” of independence was known to everyone in Rotuma.

Visanti Makrava gave evidence that he was the Chairman of the Rotuma Council and that the Rotuman people had expressed their dislike for the Respondent and the Malmahau Clan, for the blatant breach of Rotuman custom. He said that the new installation of Gagaj Kausakmua caused ill feeling on Rotuma because everyone knew what the Clan stood for.

Sgt. Nasoni gave evidence that the Malmahau Foundation had three flags hoisted outside its headquarters, the Union Jack, the United Nations flag and a flag representing the Gagaj Sau Lagfatmarau. There is no dispute that the Malmahau Headquarters was burnt down sometime before the installation.

The Respondent gave evidence confirming that the Malmahau Clan stood for independence from Fiji. He referred to Gagaj Sau Lagfatmarau as the “King of Rotuma.” He said that he did not know about the declaration of independence of Rotuma, and that he wanted to bring about independence by lawful means. Rigamoto Tonu said that he was installed as Gagaj Kausakmua in November 2000, that the Respondent blessed him and that he was not aware of any ill-will or hostility caused amongst Rotumans by his installation.

After the trial the learned Chief Magistrate held as follows:

“In my view, the State has succeeded in proving the elements of section 66(1) and section 65(1)(v) of the Penal Code, but has not adequately disproved the statutory defences, available under section 65(1) (a) to (d) of the Penal Code.

For example, section 65(1)(b) of the Penal Code reads, “But an act is not seditious by reason only that it intends to point out errors or defects in the government or constitution of Fiji ... with a view to the remedying of such errors or defects...”

The Malmahau Clan wants independence from Fiji. The accused admitted that he was a member of the Clan. He said, he wanted to make submissions to the Constitutional Review Commission, that existed at the time. Presumably, he wanted to make submission on the possible granting of independence to Rotuma, by the Republic of Fiji. He said, he wanted to pursue independence from Fiji, through legal means.”

The learned Chief Magistrate went on to say that the Malmahau Clan was entitled to raise the issue of the independence of Rotuma, through lawful means. In doing so, he said the Respondent was entitled to the statutory defence available under section 65(1)(b) of the Penal Code. He was acquitted accordingly.

The Offence

Section 66(1) of the Penal Code provides:

“Any person who -

(d) does or attempts to do, or makes any preparation to do or conspires with any person to do, any act with a seditious intention;

(e) utters any seditious words;

(f) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(g) imports any seditious publication, unless he has no reason to believe that it is seditious,

is guilty of a misdemeanour, and is liable for a first offence to imprisonment for two years or to a fine of two hundred dollars or to both such imprisonment and fine ...”

A “seditious intention” is defined by section 65(1) of the Penal Code as follows:

“A “seditious intention” is an intention -

(h) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, Her heirs and successors or the Government of Fiji as by law established; or

(i) to excite Her Majesty’s subjects or inhabitants of Fiji to attempt to procure the alteration, otherwise than by lawful means, of any matter in Fiji as by law established; or

(j) to bring into hatred or contempt or to excite disaffection against the administration of justice in Fiji; or

(k) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Fiji; or

(l) to promote feelings of ill-will and hostility between different classes of the population of Fiji.

But an act, speech or publication is not seditious by reason only that it intends -

(m) to show that Her Majesty has been misled or mistaken in any of her measures; or

(n) to point out errors or defects in the government or constitution of Fiji as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(o) to persuade Her Majesty’s subjects or inhabitants of Fiji to attempt to procure by lawful means the alteration of any matter in Fiji as by law established; or

(p) to point out with a view to their removal, any matters which are producing or having a tendency to produce feelings of ill-will and enmity between different classes of the population of Fiji.

(2) In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.”

The Penal Code offence of Sedition provides in statute form, what was the English common law offence of Sedition. Fitzgerald J in R -v- Sullivan (1868) 11 Cox CC 44 defined Sedition as follows:

“Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the state, and lead ignorant persons to subvert the government and the laws of the Empire. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion.”

In Reg -v- Burns and Others (1886) 16 Cox 335, Cave J, in addressing the jury in a sedition trial referred to an article written by Stephen J on the meaning and scope of the offence. He said (at page 360):

“A seditious intention is an intention to bring into hatred and contempt, or to excite disaffection against the person of Her Majesty, her heirs, or successors, or the government and constitution of the United Kingdom, as by law established, or either Houses of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt to change otherwise than by lawful means matters in Church or State by law established, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes or subjects.”

The Penal Code offence of Sedition, is of course created by statute.

In the State -v- Afasio Mua and Others Criminal Appeal No. 16 of 1991, the Fiji Court of Appeal held that the statutory offence of Sedition was complete in itself, and provided the Courts gave the offence a “free fair and liberal” interpretation, there would be no conflict with the freedom of expression provision of the 1990 Constitution. At page 11 of its judgment, the Court said:

“The purpose of the offence is to prevent any unlawful attacks on the tranquillity of the State but it is not intended to prevent legitimate political comment. Deeply held political convictions frequently provoke strong emotions but there is authority to show that even strong and intemperate words or actions may not demonstrate a seditious intention if done with the purpose of expressing legitimate disagreement with the government of the day in terms of paragraphs (a) - (d).”

The Court of Appeal went on to say, after referring, with approval to Fitzgerald J’s directions to the jury in Sullivan (supra):

“The Court should bear in mind that genuine political dissent is often the ground from which democracy grows and always be vigilant that a charge of sedition is not used simply as a means to suppress it.”

The 1997 Constitution recognises the delicate balance between freedom of association and opinion, and acts intended to incite ill-will and hostility in the population.

Section 30 of the Constitution provides:

“(1) Every person has the right to freedom of speech and expression, including:

(q) freedom to seek, receive and impart information and ideas; and

(r) freedom of the press and other media.

(2) 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 national or municipal election;

(b) the protection or maintenance of the reputation, privacy, dignity, right or freedoms of other persons:

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

(s) preventing attacks on the dignity of individuals, groups or communities or respected offices or institutions in a manner likely to promote ill-will between races or communities or the oppression of, or discrimination against any person or persons; ............. but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.” (My emphasis.)

The offence of sedition, in that it requires proof of, inter alia, an intention to promote feelings of ill-will and hostility between different classes of the population of Fiji, does not therefore offend section 30 of the Constitution in principle, provided that a conviction for the offence is “reasonable and justifiable in a free and democratic society.” In giving effect to this proviso, the Courts can do no better than to give to sedition offences, the free fair and liberal interpretation advocated by the Court of Appeal in State -v- Afasio Mua (supra).

The Submissions

At the trial, the prosecution submitted that the “act” complained of in the charge was the installation of the Gagaj Kausakmua. The prosecution said that the evidence of a seditious intention was the evidence that the Gagaj Maraf had not approved the installation, that the Clan had apologised to the Rotuma Council and had relinquished the title, that the Clan was involved in the leasing of the land without the District Chief’s approval, that the Clan wanted independence from Fiji and had declared independence and a new “government”, that the installation of the Kausakmua was the installation of the leader of a clan which stood for all these things, and that the Respondent knew of all these matters and nevertheless installed the Gagaj Kausakmua. The prosecution said that these matters caused ill-will and hostility between different groups of Rotumans, and resulted in the burning down of the Clan Headquarters.

The Defence submitted at the trial that the Malmahau people had the right to instal any chief they wanted, and that such installation was an expression of their freedom of expression and association. Counsel said that section 66 of the Penal Code was not intended for acts done contrary to custom and culture. He submitted that there was no seditious intention because the Respondent was not threatening the Government or the administration of justice. Finally, he submitted that all the Respondent was trying to do was to obtain the independence of Rotuma by lawful means, and that therefore the defence under section 65 (1)(b) of the Penal Code, applied.

At the hearing of this appeal counsel for the State submitted that the learned Chief Magistrate rightly found that the Respondent had done an act with seditious intention, but wrongly found that he was entitled to the defence of acting to change by lawful means.

Counsel for the Respondent submitted that there was no evidence of seditious intention because the Respondent was acting on behalf of the Malmahau people. His act of installing the Gagaj Kausakmua was, according to counsel, of no concern to the other Rotuman people. He agreed that an installation of a chief could, in principle be seditious if the chief and the installation, in the context of local affairs, stood for something which had a seditious effect. However he said that this case was not such a case. He further said that the defences in section 65 did not apply because there was no seditious intent.

The Act

The charge in the Magistrates Court failed to particularise the seditious act alleged. Section 119 of the Criminal Procedure Code, provides:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

Archbold (2000 Ed. Para 25-202) states that the charge should particularise the sedition alleged, that is the act or speech the prosecution says is seditious. However, although the issue of the lack of particularity of the charge was raised by counsel for the Defence at the trial, during his closing submissions, it is apparent from the way the trial was conducted, that the Respondent knew what act was alleged to be seditious. This is particularly apparent from his evidence-in-chief and from counsel’s submissions. I do not consider that he was prejudiced by the lack of particularity of the charge. I note also that counsel for the Respondent made no application for better particulars at the trial. For these reasons, I find that the trial was not invalidated by the lack of particulars in the charge.

There was no dispute at the trial that the Respondent was responsible for the installation of the Gagaj Kausakmua. He admitted as much in his cautioned statement to the police, and in his sworn evidence. There was ample evidence, that he arrived in Rotuma from Australia for that purpose, and that the installation took place in Rotuma in November 2000. This was the act the prosecution says was done with a seditious intention. The only real question is whether there was such a seditious intention.

The Seditious Intention

The prosecution relied on the evidence of the context of the installation. This, it said, was not a simple matter of Rotuman people choosing their own chief. This chief and this clan stood for a seditious intention, and in particular one which promoted “feelings of ill-will and hostility between different classes of the population of Rotumans in Fiji.”

What evidence was led as to seditious intention? Firstly the evidence of several witnesses that the attempts by some Rotumans to revive the leadership of the Malmahau Clan in order to declare Rotuman independence, was causing anger, hatred, and dislike amongst Rotumans. This anger, hatred and dislike was directed at the Malmahau Clan.

Secondly there was evidence, that the strong feelings held by Rotumans against the Clan, resulted in the burning down of the Malmahau headquarters. Thirdly, there was evidence that a few months prior to the installation of the Kausakmua, the Clan (with the clear undenied knowledge of the Respondent) had declared Rotuma’s independence, and had announced the installation of a new “sovereign” government under the rule of the Gagaj Sau Lagfatmarau. The Respondent is listed as a Minister of the “new government” although he did not sign the document and said he was not consulted about it. The document was found in his possession.

Fourthly, the evidence was that the Clan flew three flags outside its headquarters, in the full view of any Rotuman who cared to pass by. They were the Union Jack, the United Nations flag and the standard of seven snake-heads of the Gagaj Sau Lagfatmarau. Fifthly, the evidence was that all of this was done against the wishes of the Rotuma Council, the Gagaj Maraj who is the chief of the district and it is apparent, against the wishes of the majority of the Rotuman people. The “petition” for independence holds only 68 signatures. Rotuma has a population of about 2,000.

Sixthly, the Respondent admitted to the police, that he knew that the former Gagaj Kausakmua, Joe Andrea, had returned the title to the Rotuma Council (page 85 of the record). Seventhly, the Clan was engaged in the leasing of 100 acres of land on Rotuma for copra farming ostensibly for the Dominion of Melchizedek.

The evidence therefore, was that the Respondent knew at the time he installed the Gagaj Kausakmua, that the activities of the clan were inciting hatred in the community, were disloyal and defiant to the Rotuma Council, which is the lawful source of authority in Rotuma, and were focussed on the creation of a new government of Rotuma. He knew all of this because the evidence of such activities, was found in his possession.

In the light of such evidence, it is not surprising that the learned Chief Magistrate found that the prosecution had proved beyond reasonable doubt, that the Respondent had a seditious intention, when he installed the Gagaj Kausakmua. The evidence was of “attacks on the tranquillity of the State” (Afasio Mua, supra).

Counsel for the Respondent submitted that the installation was only the business of the Malmahau Clan, and not of the other Rotumans. This might be true, if all the Clan stood for was the good governance of the Malmahau people. However the “declaration of independence” of 18th July, was purportedly for all Rotumans. The Gagaj Sau Lagfatmarau is described not as the King of the Malmahau Clan, but as the King of Rotuma. Copies of the “Declaration” were given to all members of the Rotuma Council (the evidence of Gagaj Maraf). The Clan was concerned, not with the politics of its own governance. It was in effect, involved in the political takeover of the Rotuma Council and the Rotuman people.

In that context, the installation was inevitably to promote ill-will and hostility between different classes of Rotumans.

The evidence of the significance of the title of Gagaj Kausakmua, of the relinquishing of the title, and of the new installation, came from Joe Andrea.

He was the former Gagaj Kausakmua and he gave direct evidence (which was uncontradicted) about what the title stood for. He said (at pages 13, 14 and 15 of the record) :-

“The Clan relied very much on me as the headman. I feel annoyed with what was happening to the Clan. The Clan was separated from the whole island. There was hatred against our Clan ...... When I became Gagaj Kausakmua, I watched it very carefully. I later realised I was misled. We were used like tools for the past year ...... I relinquished my title before Xmas last year. We reconciled with the chiefs on 13th or 14th December last year. ...... I told the Rotuma Council and Fiji Government there was no more Malmahau Clan. I was the leader of the Clan then. That was my authority....... I decided to reconcile with the Council. We were trying to get independence. It was wrong. It should go through the Rotuma Council. We respect our Chief...... There was hatred by the Rotumans against the Clan. The Clan was part of something else. They hated us for our existence. We are doing the wrong thing.”

Scott J in Afasio Mua & Others -v- State Criminal Appeal No. 27 of 1990 considered whether a letter written by members of the Malmahau Clan to the President of Fiji, informing him that the seven district chiefs of Rotuma had been suspended and replaced by seven members of the Clan, was seditious. He held (and this part of his decision was not the subject of appeal) that there was no evidence of disaffection to the Government, no evidence that the dignity of the chiefs of Rotuma was lowered and no evidence that the changes were effected by unlawful (as opposed to illegitimate) means. He also found that there was no evidence of incitement to violence, but the Court of Appeal held, on appeal by the Director of Public Prosecutions, that there was no need to prove any such incitement to violence.

The facts of this case are quite different. The evidence of “seditious intent”, included not just attempts at replacement of customary chiefs, but of the administration of Rotuma, established by law. There can be no question of the change being effected by illegitimate, but lawful means. On the facts of this case, the evidence of a seditious intention was overwhelming.

The Defence

At page 38 of the court record, the learned Chief Magistrate found that the Respondent wanted to change the legal and constitutional basis of Rotuma “through legal means.” He said:

“In my view, the Clan members, including the accused, are entitled to raise the issue of independence of Rotuma from Fiji through lawful means. The issue must be debated freely and fairly by the people of Rotuma, if certain segments of them entertained it. Only then will they find out whether or not the idea enjoys popular support. If it does enjoy popular support, then the appropriate legal remedies could be sought.”

There can be no argument about this finding. The crux of the section 65(1)(b) defence is that even if an idea is unpopular, if all it does is advocate change through lawful means, it is not seditious. It is only when an accused person advocates change through unlawful means, and in doing so, promotes ill-will and hostility between different classes of the population, that he should be prosecuted and convicted. In basic terms, if your ideas and acts upset other people, you can only be convicted if you are advocating unlawful behaviour in achieving your ends.

In the case of the Respondent, although his evidence was that he was simply advocating Rotuman independence by lawful means, the weight of the evidence indicated otherwise. In evaluating the defence under section 65, the learned Chief Magistrate failed to consider the evidence which showed the Respondent’s blatant disregard, not just for Rotuman custom but for the law. In the context of what had occurred prior to the installation, events about which the Respondent had full knowledge, it was an act done with a disregard for the law in attaining a particular end.

The declaration of the “Sovereign State of Rotuma”, the declaration of a new constitution for Rotuma, the appointment of Ministers for a Rotuman Government, were none of them lawful means to attain an end.

Section 18 of the Rotuma Act provides that District Chiefs (who sit on the Rotuma Council by virtue of section 12 of the Act) shall be removed by the Minister, and elected by Rotuman custom. The Rotuma Act provides for seven chiefs and seven elected representatives for the seven districts in Rotuma. The Noatau district already has a chief, Gagaj Maraj. There was no question of appointing another in his place because he has not been removed by the Minister. However the evidence indicates that the Gagaj Kausakmua, insofar as the title exists, describes not a District Chief, but a sub-chief. The installation of a sub-chief is not dealt with by the Rotuma Act, and the installation on its own, is therefore not unlawful.

However, the activities related to the Malmahau Clan in Rotuma, activities known to the Respondent, show a disregard for the law, and for the Rotuma Council, which is the lawful authority in Rotuma. Such disregard for the law was only partially mitigated by the Respondent’s desire to make submissions for change to the Constitutional Review Commission. To what purpose would such submissions have been, when the Clan had already declared its independence, and had set up a rival government? The Respondent, and other members of the Clan appear to have made no attempt to elect their own representatives to the Rotuma Council.

These matters in my view successfully rebutted the defence of “lawful means” under section 65(1)(b) of the Penal Code. Nor do sections 65(1)(a), (c) or (d) apply. Counsel for the Respondent submitted at the hearing of this appeal, that none of the defences applied, because there was no seditious intent.

As I have already found, the Respondent had a seditious intention. As to the hatred, ill-will and hostility caused by his act, he is deemed to intend the consequences which naturally follow from his conduct, and under the circumstances in which he conducts himself. Indeed the evidence is that he knew the consequences of the activities of the Malmahau Clan from 1987, including the burning of the Clan Headquarters. It is not suggested that the ill-will and hostility promoted by his act of installing the Gagaj Kausakmua, were unusual or unexpected consequences.

Of course there was no evidence that the Respondent’s act incited violence against constituted authority. This is an ingredient of the common law offence of Sedition in England since the decision in R -v- Chief Metropolitan Stipendiary Magistrate ex p. Chaudhury (1990) 3 WLR 986. In that case, the Divisional Court relied on the Canadian Supreme Court decision in Boucher -v- R (1951) 2 DLR 369, a case also relied upon by Scott J in Afasio Mua & Others -v- State (High Court) Criminal Appeal No. 27 of 1990. Further the common law definition of Sedition in England includes a further ingredient to the offence, that of proof that the words or act have a tendency to provoke disorder or violence (see R -v- Caunt (1947) 64 L.Q.R. 203, R -v- Burns (1886) 16 Cox 355).

However in Fiji, where sedition is defined by statute, the prosecution need not prove either incitement to violence, or the provoking of disorder or violence. In Fiji, the ingredients of the offence are that 1) the accused, 2) did an act, 3) with 4) seditious intent. The statutory defences available are as listed in section 65(1) (a), (b), (c) and (d) of the Penal Code. The crux of the defences, is that persons who act in order to lawfully effect change in the government or the Constitution, are not guilty of Sedition.

The defence under section 65(1) of the Penal Code could not have helped the Respondent in the light of the evidence of unlawful activities surrounding the Malmahau Clan, which was led by the prosecution. The learned Chief Magistrate therefore erred in acquitting the Respondent on this basis.

The Constitution

Is a conviction in breach of section 30 of the Constitution? The 1997 Constitution allows a limitation of the right to freedom of expression “for the purpose of improper attacks on the dignity of respected offices or institutions in a manner likely to promote ill-will between different races or communities” but only to the extent that the limitation is shown to be reasonable and justifiable in a democratic society. There can be no doubt that in the installation of the Gagaj Kausakmua, a title which had formerly been returned to the Rotuma Council, and in the context of the Malmahau Clan’s declaration of independence and the creation of a new “government of Rotuma”, the dignity of the Rotuma Council was being attacked in a manner likely to promote ill-will on Rotuma.

As I have already said in this judgment, section 65(1) of the Penal Code, and this prosecution of the Respondent, appears to fall within the ambit of section 30(2)(d) of the Constitution. However, is the prosecution and conviction of the Respondent for the act alleged to have been done, reasonable and justifiable in a democratic society?

In Sunday Times -v- U.K. (1979) Judgment of the European Court of Human Rights Series A, No. 30, the Court in considering whether a restriction was necessary in a democratic society asked if the interference:

“... corresponded to a ‘pressing social need’ whether it was ‘proportionate to the legitimate aim pursued’, and whether the reasons given by the national authorities to justify it are ‘relevant and sufficient’.”

In Superintendent Central Prison, Fatehgar -v- Lodhia [1960] INSC 10; (1960) (2) SCR 821, 835-7, the Supreme Court of India held:

“In order to be reasonable, restrictions must have a reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object .... A limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematic or too remote in the chain in relation with the public order.”

The Canadian Supreme Court in R -v- Oakes (1986) 26 DLR (4th) 200 at 227, used a similar test to assess whether a limitation addressed a legitimate objective. The Supreme Court asked, (per Dickson CJ), firstly whether the limitation law was of sufficient importance to warrant overriding a protected right or freedom, and secondly whether the means employed are reasonable and demonstrably justified, (the proportionality test). In relation to the second test, the Court asked whether the limitation is arbitrary or irrational in relation to the legislative objective, whether the limitation impairs as little as possible, the protected right, and whether there is proportionality between the effects of the measures and the legislative objective.

The Constitutional Court of South Africa asks whether the restriction is acceptable and demonstrably justifiable in a free and democratic society. This should be answered by balancing the benefits to the democratic society resulting from the restriction, with the detriment caused to a democratic society by the specific restriction. (State -v- Makwanyane & Anor. Constitutional Court of South Africa (1995) 6 BCLR 665).

The Fiji Court of Appeal held that there was no necessary inconsistency with the protection of freedom of expression under the 1990 Constitution, provided the offence of Sedition was interpreted in a free, fair and liberal spirit (Afasio Mua supra). Of course, it did not have to consider the proviso included in section 30 of the 1997 Constitution.

There can be no doubt at all, that section 30 of the Constitution protects the freedom to express political dissent and criticism. This is so, even if such dissent is unpopular. As the

Privy Council said in Hector -v- Attorney-General (1990) 2 AC 312, 315:

“In a free and democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who conduct public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.”

It is therefore important for the courts to ensure that the law of Sedition is not used to suppress legitimate and democratic criticism of the way the authorities are governing the country.

In the case of the Respondent, submissions to the Constitutional Review Commission, meetings to complain about the neglect of Rotuma by Fiji, meetings to suggest a change of leadership in the Rotuma Council, and meetings outlining all the faults of the Council in the opinion of the Respondent, could not have led to a conviction. These are all democratic expressions of political dissent, and no matter how unpalatable they may be for the people of Rotuma, criminal sanctions could not have been used against him. Indeed Rotuma is part of a democracy, and seven members of the Rotuma Council are elected members. There were, and are adequate avenues to address actual and perceived grievances in Rotuma, and to criticise, to disagree and to effect political change.

However, the evidence is that the Malmahau Clan with the knowledge of the Respondent, did far more than express democratic dissent. The Clan, under the leadership of the Gagaj Sau Lagfatmarau, declared itself the new government of Rotuma, and purported to rule the whole of Rotuma. The installation of the Gagaj Kausakmua, which the Respondent said was done on the instructions of the Gagaj Sau Lagfatmarau, was clearly an act in furtherance of that declaration in July 2000. The act was more than an attack on the dignity of a respected institution, it was an act in furtherance of an intention to unlawfully replace an institution created by law.

The act therefore had far wider consequences than the expression of dissatisfaction. It purported to replace the lawful authority of Rotuma, with a rival government. It was an attack on the tranquillity of the island of Rotuma.

Applying the balancing test therefore, the Respondent’s right to install a chief as the Gagaj Kausakmua in a clan which had already declared its independence on behalf of Rotuma, was subject to the right of all Rotumans to a lawful government, under the Rotuma Act. His prosecution for the offence of Sedition has a reasonable relationship to the object of the Penal Code, that is to preserve order and tranquillity amongst Fiji’s communities. Further I find that the legislative objective of section 66 and the effects of prosecution are proportionate and rational. This is particularly so at this time in Fiji’s history when Fiji’s lawful institutions, created by democratic processes and by consensus, are under undemocratic attack.

Section 30 of the Constitution does not permit persons, purportedly in the exercise of their right to freedom of expression, to declare the existence of a new state or order in defiance of the laws of Fiji, and in defiance of the lawful authority of the Rotuma Council. It did not give the Respondent the right to impose the will of the Malmahau Clan on all the people of Rotuma. It did not entitle the Respondent to act in flagrant disregard for the law. The rights of the Respondent are subject to the rights and freedoms of others. Reading section 30(2)(d) in the most restrictive way therefore, I find that the Respondent acted in a way which was likely to promote ill-will between the people supporting the Gagaj Sau Lagfatmarau and the other Rotumans, and in a way which attacked the dignity of the Rotuma Council and the law, and that therefore a conviction in respect of the offence alleged, is a limitation to section 30 of the Bill of Rights which is reasonable and justifiable in a democratic society.

Conclusion

The appeal by the Director of Public Prosecutions is allowed. The acquittal is set aside and a conviction substituted. I will now set a date to hear submissions relating to sentence.

Nazhat Shameem

JUDGE

At Suva

20th August 2001

Haa0060j.01s