Section 66(1) of the Penal Code provides:
“Any person who -
(d) &nnbsp;;&nspp;&nsp; p;&spp; ;&bspp; dpan>does ores or attempts to do, or makes any preparation to do or conspires with any person to dy act a seus inon;
(e) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& s any seny seditiouitious words;
(an style="font:7.0ptt;Timw Romot;">&nbs> &nbp; &nsp; nbssp &nbs; &nbs; &nnbp;& s, publipublishes, hes, sells, offers for sale, distributes or reproduces any seditious publication; or
(g)(g) &nbbsp; &nbbsp; &nbp; &nbp; isport seditious puus publication, unless he has no reason to believe that it is seditioupan> &nbs>
ass=MsoNormal stal stylestyle="mar="margin-lgin-left: eft: 36.0pt; margin-top: 1; margin-bottom: 1"> 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) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; to bintg hatr d or d or contempt or to excite disaffection against the person of Her Majesty, Her heir succs or overnment ji asaw
esshed; or
>
(i) &nnsp;&&nsp;;&nspp;&nssp;&nsp; to excite Her My’s ty’s subjects or inhabitants of Fiji to attempt to procure the altera othe thanawfuls, ofmatteFiji as by law established;
or
(j) &nnsp;&&nsp;;&nspp;&nssp;&nsp; to bring hatr d or d or contempt or to excite disaffection against the administration of jusin Fir (k) &nnsp;&&nsp;;&nspp;&nssp; to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Fiji; or
(l) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &nto prom promote fete feelings of ill-will and hostility between different classes of the population of Fiji.n lang=EN-GB>&-GB> nbsp;
But an act, speech or publication is not seditious by reason only that it intends -
(m) p; &nnsp;&&nsp;&nnbsp; &nsp; to shat that Her Maer Majesty has been misled or mistaken in any of her measures; or
(n) ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;& to poio point out errors or defects in the governmentonstin of as byestablished or in legislation or in the administration of jusf
justice tice with with a viea view to the remedying of such errors or defects; or
(o) p; &nsp; &nbbsp; tsuade Hade Her Majr Majesty’s subjects or inhabitants of Fiji to attempt to procure by lawful means the alteration of any matter
in Fiji as by law estabd; orn> (p) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
(2) ;&nbssp; &nsp;&nbbsp;&bsp; &nbssp;&nnbsp; span>In determinermining whether the intention with which any act was done, any words wereen, o docuwas phed, r was not seditioustious,
eve, every person shall be deemed to intend tend the cohe consequnsequences 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.gerald J in R -v- Sul- Sullivan (1868) 11 Cox CC 44 defined Sedition as follows:
“Sedition in itself is a comprehensive term, and it embraces all those practices, whetherord, deed or writing, whichwhich 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 n of Her Majesty,
her heirsheirs, 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 oeal held that the statutory offence of Sedition was completmplete 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 Sull/u> (supra):
>
“The Court should bear in mind thauine political dissent is often the ground from which democracy grows and always be vigilangilant
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 expressiocluding:
(q) & p;&nssp;&nsp; &nsp; ;&bsp; &nb/p; fpan>freedom to seto seek, receive and impart information and ideas; and
;&nbssp; &nsp; &nbs; &nbbp;&nnbp;& freedoreedom of the press and other media.
;
(2) &nbssp; &nsp; &nbbp;&nnbsp;
&-GB> nbsp; (a) &nnsp;&&nsp;;&nspp; span>national security, public safety, public order, public morality, public health or the orderly conduct of nal oicipactionan> (b) &nbbsp; &nsp; &nbbp;&nnbp;& &nb/span>the proe protectioection or maintenance of the reputation, privacy, dignity, right or freedoms
of other persons:
&-GB> nbsp; (i) &nnsp;&&nsp;;&nspp;&nssp;&nsp; the right to be froe from late speech, whether directed against individuals or groups, and ......./span
<1"> N-GB> (s) &nnbsp;;&bspp;&bssp;&bbs;&nbs; p; preventing attacks on the dignity divid grou commes or respected offices or institutions in a manner likely toly to prom promote iote
ill-will-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 lity between different
clas 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 “actplained of in the charge was the installation of the Gagaj Kausakmua. The prosecution
said 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, hat such installation was
awas 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 tate submitted that the learned Chief Magistrate rightly found that the Respondent had done
done an act with seditious intention, but wrongly found that he was entitled to the defence of acting to change by lawful means.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel for the Respondent submitted that there was no evidence of seditious intention because the Respondent was a on behalf of the
Malmahau ahau 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 sufficientt contains, a statement of the specific offence or offencesences
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 ct or speech the prosecutiocution
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 revhe
leadership of the Malmahalmahau 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 Malmahadquarters.
Thirdly, there here 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 view of any Rotuman who cared to pass by.
They were the Unie 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, haurned the title to the
Rotu 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 actis of the clan were incitingiting 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 inevitablyromote 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,
camm Joe Andrea.
He was the former Gagaj Kausakmua and he gave direct evidencech was uncontradicted) about what the title stood for. He said (at pages
13, 14 and 15 of t of the record) :-
“The Clan relied very much on me as the headman. I feel annoyed with what appening to the Clan. The Clan was separated from the wholewhole
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.evidence of “seditious intent”, included not just attempts at replacement of customary
chie 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 that the Respondent wanted to change the legal and constitutional basis
of Rotuma “throughrough legal means.” He said:
“In my view, the Clan members, including the accused, are entitl raise the issue of independence of Rotuma from Fiji throughrough
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 ea is unpopular, if all it does
is advocate change through ough 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 w
of the evidence indicated ated 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 Codr do sections
65(1)(a), (c), (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.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> 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 Respo’s act incited violence against constituted authority. This is an ingredient of the
common mmon 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) 6.R. 203, R -v>R -v- Burns (1886) 16 Cox 355).
p claoNormal style="yle="margin-top: 1; margin-bottom: 1"> 1"> However in Fiji, where sedition is defined by statute prosecution need not prove either incitement to violence, or the provoking of
disorder orer 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 ful activities surrounding ding the Malmahau Clan, which was
led by the prosecution. The learned Chief Magistrate therefore erred in acquitting the Respondent on this basis.
The Constitution
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Is a conviction in breach of section 30 of the Constitution? The 1997 Constitution s a limitation of the right to freedom of expression
“for tfor 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’, andher the reasons given
by thby 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 Suprourt of India held:
“In order to be reasonable, resions must have a reasonable relation to the object which the legislation seeks to achieve aeve 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- (1986) 26 DLR (4th) 200 at 227, used a similar test to assess whether a limitationation 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 datic
society. This should buld 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 criti This
is so, even if such duch dissent is unpopular. As the
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> 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 theof Sedition is not used to suppress legitimate and democratic criticism
of the way the auth authorities are governing the country.
In the case of the Respondent, submissions to the Constitutional Review Commi, meetings to complain about the neglect of Rotuma by
Fiji,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. Itorted to replace the lawful authority of Rotuma,
with a riva rival government. It was an attack on the tranquillity of the island of Rotuma.
Applying the balancing test therefore, the Respondent’s right to in a chief as the Gagaj Kausakmua in a clan which had already declared
its independence on beon 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.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Section 30 of the Constitution does not permit perspurportedly in the exercise of their right to freedom of expression, to declare
the existenistence 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 acql is set aside and a conviction substituted. I will now set a
date to hear submissions rela relating to sentence.
Nazhat Shameem
1"> JUDGE
At Suva
20th August /span>
Haa0060j.01s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2001/61.html
