True democracy, we were told for 10 years by the FijiFirst government, included “freedom of expression”.
Yes, there it was, in s.17 of our “truly democratic” 2013 Constitution – part of the range of all of our world-beating protected human rights (or so we were told).
But our “freedom of expression” did not rule out the “Media Industry Development Act” – better known as the “Media Decree”.
This was the law that told journalists they could go to jail for writing things against “the national interest”.
Also, that a Media Tribunal could fine them tens of thousands of dollars for writing “unbalanced” articles, and they might not even have a right of appeal.
Nor did our freedom of expression help the government’s critics when the Police picked them up and held in a cell for a night or two for their “inciteful” comments.
Then they would be released.
The file, we were told, “has been sent to the Director of Public Prosecutions”.
Then nothing happened and the story died down – until the next time.
It seems to be clear now that nobody thought they had much freedom of expression back then.
Fear, not freedom, seemed to be the dominant emotion.
Eight weeks after the election, things seem to be different.
The Government has said firmly that the Media Decree will be abolished.
Howls of derision greeted Opposition Leader Frank Bainimarama when he told Parliament that under the new Government “people are worried to speak openly” and “freedom of expression is under threat”.
But some old habits die hard.
Ten days ago, the Police detained activist Roshika Deo.
She had tweeted about seeing two policemen beat up a beggar outside the Central Police Station.
The Police said that her tweet “contained false information”.
That would be standard practice under the previous government.
Nothing unusual.
But it wasn’t lawful then and it isn’t lawful now.
The Police are no different from anyone else.
People will say things about them, not all of them good.
People will also make allegations against them, some in public.
The Police may disagree with the allegations.
They may even believe that the allegations are false.
But that does not give the Police the right to “bring her in for questioning” – which seems to be another way of saying that they are detained.
If I complained that I had witnessed a private security guard bashing someone, I would not be arrested.
The complaint would be investigated.
If there was proof it would go forward.
If there wasn’t, it would not go forward.
That’s all.
If someone complains about the Police, they have no special rights to their reputation.
They can’t detain people for questioning just because they have been made to look bad – rightly or wrongly, falsely or correctly.
There was, at least, one difference this time.
Ms Deo was not kept overnight.
She was released (with of course the usual statement that “the file has been sent to the DPP”).
So maybe that’s progress.
But it was not the best moment for the Police under the new government.
Parliament lessons
The lesson of the week has been that members of Parliament don’t have complete freedom of expression either.
There are limits on the things that they can say, and attacks on the conduct of the President are out of bounds.
The first full sitting of Parliament witnessed an extraordinary attack on the President from none other than Mr Bainimarama, the man who put the President — formerly the president of his own political party — into Government House.
The Opposition Leader’s speech seemed to follow the line that the FijiFirst party has been regularly running since the government changed – the Constitution is under threat, et cetera.
Vague statements were made about “rule of law”, “due process”, “illegal directives”, et cetera.
All this seemed to echo the line peddled by the former Attorney-General a few weeks ago – the usual allegations which no one can quite understand because he isn’t very specific.
The former Attorney-General has of course had several weeks now to turn his allegations of terrible and illegal and unconstitutional behaviour into some court cases – but no writs have turned up yet.
Then Mr Bainimarama suddenly turned up the heat.
The President, he said, “had failed to protect the Constitution.”
He had “failed to acknowledge the fact that the very Constitution which he is supposed to uphold is being stripped away almost on a daily basis. As the commander in chief, he has failed to provide proper guidance to the RFMF”.
“He has failed the Fijian people and he will go down in history as the person who aided and abetted the most incompetent and divisive government,” he claimed.
Then Mr Bainimarama informed “the rank and file of the RFMF” that their work to bring in the Constitution was being “undermined and disregarded”.
Those Fijians who want socioeconomic stability “all look up to the RFMR to guarantee these if and when it is under threat”.
“I appeal to the rank and file of the RFMF to preserve their mana, to maintain their credibility and their calling and not forsake their
constitutional role,” he said.
That triggered a complaint from Home Affairs Minister Pio Tikoduadua that the Opposition Leader had breached parliamentary privilege.
And thus began a process very familiar under the FijiFirst government – a Privileges Committee investigation.
That process has now led to Mr Bainimarama’s suspension from Parliament for three years.
The penalty
Was that penalty harsh?
Well, let’s look back.
In 2015, under the FijiFirst government, then Opposition MP Ratu Naiqama Lalabalavu was suspended from Parliament for two years for what was called a “scurrilous” attack on the then Speaker, Jiko Luveni.
Ironically, Ratu Naiqama is now the Speaker.
A year later Opposition MP Tupou Draunidalo had this off the-cuff exchange with Government Minister Mahendra Reddy: “Fool…calling us dumb natives. You idiot!”
I rather enjoyed it.
The then Privileges Committee, however, self-importantly called these words “a grave and serious breach of privilege”.
The Privileges Committee noted that, under the Parliamentary Powers and Privileges Act, people can go to jail for (a maximum of) two years for slandering Parliament (an odd law in itself).
So, the committee thought, this meant that Roko Tupou should be suspended from Parliament for two years.
The silliness of that logic will not be lost on most of us.
The International Parliamentary Union criticised both suspensions as excessive and disproportionate.
They reminded Fiji that suspending a Parliamentarian was not just punishing the Parliamentarian.
It also deprived the Parliamentarian’s voters of the right to have the person they voted for speaking for them in Parliament.
There’s little question that Mr Bainimarama’s words were much more serious than those of Ratu Naiqama or Roko Tupou.
The President is supposed to be above politics.
He is, as they say, “the symbol of the State”.
As the head of State he is entitled Parliamentarians’ respect, because as head of State he represents the unity and legitimacy of the State of Fiji and all the people of Fiji.
An attack on the President is symbolically an attack on Fiji and its people.
And in a democracy, it is the people who are the most important.
Yes, MPs may question his personal conduct – but only if there is a specific motion to do that.
Casual attacks of Mr Bainimarama’s kind are not allowed.
Just so we’re clear, however – we the ordinary people can criticise the President.
The special rules of Parliament do not apply to us.
The rules require MPs to behave a certain way in Parliament – but we aren’t them.
We are the people, and we can say what we want (subject of course to the laws of defamation and public order).
Separate from this is the question of whether the Opposition Leader’s speech was calling on the “rank and file” to stage a military coup – because that is clearly one way to interpret it.
If that is so, this might well be the subject of a separate police investigation.
So what of the penalty?
Well, as the lawyers might say, there are precedents.
It was Parliament under Mr Bainimarama’s government that set the (truly ridiculous) standard of two-year suspensions for relatively minor breaches of privilege.
Should Parliament under the new government have looked at things afresh and made a new start?
Or should Mr Bainimarama suffer a penalty under the standard his own government set?
You be the judge.
Being too free with your expressions, it turns out, has different dimensions.
And, clearly, consequences.
• RICHARD NAIDU is a Suva lawyer (with no privileges). The views in this article are his and not necessarily those of The Fiji Times.
