The Draft Media Industry Development Decree 2010

My Assessment

Crosbie Walsh

Reception of the draft decree has been mixed. In Fiji, some say the decree is needed to promote a more responsible media. Some are reported to generally accept the decree but are concerned about how its powers may be used when politicians return to the scene in 2014. Others are concerned about how the military-led government will use these powers now. And others consider the decree, however used, is "draconian, oppressive [and] gives the State absolute powers of control.”

These positions respectively represent opinions around the yaqona bowl, pro-government supporters, “middle Fiji” represented by the Citizens' Constitutional Forum, and anti-government groups represented on this occasion by the Fiji Labour Party. Some people thought the consultations too brief with insufficient preparatory time; many thought there should have been public hearings, and all, I think, hope Government will take their questions and objections into account in preparing the final Decree.

Overseas, the draft has been universally received with dismay. While much of the mainstream media focused on the section that limits foreign ownership to ten percent and far less on other sections, AUT journalism professor David Robie was not alone in calling the draft "draconian and punitive ... a blow to media freedom throughout the Pacific ... a damaging precedent for other politicians in the region keen to rein in a free press." The Attorney-General countered similarly expressed views by saying they “bordered on the hysterical” because this was only a draft. My opinion is that David's views are timely (It is little use closing the stable doors after the horse has bolted) and legitimate. From the good things I've heard about the Attorney-General, I'm hopeful he will give serious attention to the views of people like David. They also want a better Fiji.

This posting considers the background to the decree; its more controversial sections, and recommendations for amendments that might be expected in the final proclamation.

Background

The military-led government that came to power following the 2006 Coup has not always been its own best advocate. It has made a number of errors of judgment, some involving (relatively minor on a world scale) human rights abuses, and it has a very indifferent public relations record. Its stated objectives, however, if fully implemented, will make Fiji a fairer and more democratic society than it was before.

The Government's Roadmap aims to develop the institutional and economic infrastructure to benefit Fijians irrespective of race; it has taken a number of measures to reduce poverty and promote rural development; expose and punish rampant corruption and abuse of office; produce more harmonious relations between the major races; and in the 2014 elections all votes will be of equal value. In pursuit of these objectives, those who used their office or status to gain preferential advantage for sections of the ethnic Fijian elite (not all ethnic Fijians as they claimed), such as the SDL party, the Great Council of Chiefs and the upper echelons of the Methodist Church, and their counterparts in the civil service have been effectively sidelined.

How was all this reported by the Fourth Estate? Between 2006 and the the Abrogation of the Constitution and the imposition of the Public Emergency Regulations (PERS) in 2009, the media, but most especially the Fiji Times, was totally hostile. On any reported issue, my count was that about four anti-government people to one government spokesman would be cited. On no controversial issue was the government position fairly reported. The Fiji Times position was that this was an illegal government, and by definition, nothing it did could be "good."

Following the imposition of PERS, the Fiji Times published almost nothing (positive or negative) about what the Government was doing. The de facto government had ceased to exist. But when, on the rare occasion, mention had to be made, the PM and other Government people were referred to without their proper titles. This, however justifiable, was a deliberate insult that unwisely invited government retaliation.

The public was informed of consultations on the Decree and the main issues to be discussed by government advertisements in the daily media. Some 150 people were eventually involved in the consultations that took part in Suva and Lautoka, including the Fiji Times and FijiTV that had initially been excluded. But less than three hours was given for participants to digest its contents and prepare for the consultations. Many commentators thought this was far too brief.

My general position is that I accept the need for a Decree to ensure a media responsibility that has been sorely lacking in the past, but I am concerned about features in the draft Decree that could too easily see this, and any other government, abuse its powers. The media has a critical role to play in any society where government seeks to represent the people. Legislation should protect this role and ensure media responsibility.

The Main Controversial Features of the Draft Decree

The draft Media Industry Development Decree 2010 opens with a description of the functions of a Media Industry Development Authority (MIDA) to be chaired by a person appointed by the Minister. The Authority is expected to ensure media balance, fair judgment and a range of subject matter, and to allow no publications deemed to be against the public or national interest, in poor taste, or liable to create communal discord. The MIDA will be responsible for the registration of media licences; it will monitor compliance with a Media Code of Ethics and Practice, and refer public complaints against the media to a Media Tribunal.

The Tribunal, chaired by an appointee of the President on the advice of the Minister, will have the power to hear and adjudicate complaints, and prohibit publication of material. The Authority and the Tribunal will be empowered to initiate searches, with or without a magistrate-issued search warrant, of offices and private homes, for print and electronic documents, deemed to breach the Decree. No court will be able to hear any challenge related to the validity or legality of the Decree, or any decision by the MIDA or the Tribunal. But the Magistrates' and High Court will be able to hear alleged offences under the Decree.

Concerns about these provisions include:

1. The power of the Minister and the power of Government. A consensus view, with which I agree, is that recommendations on the appointment of the chairpersons and members of the MIDA and the Tribunal should be by a wider grouping, including people who are not part of Government. The Minister should act on and generally accept these recommendations. I do not think a media person should chair the Authority but there could be media representation on the Authority if there is no conflict of interest. The Decree makes no mention of members of the MIDA or the Tribunal and the qualifications that will be necessary to fill these positions.This is an important omission.

2. The Minister can give directions to the MIDA through the Director. This potentially undermines media freedom even though the Minister may only give directions consistent with the Decree. If the purpose of the Decree includes media accountability, this provision could easily be abused to allow direct government interference with MIDA.

3. The Minister can dismiss the Authority Chairperson. I see no problem with this as long as there is "reasonable cause" that is made public.

4. The ambiguity of terms such as public and national interest. I have no major problems with the ambiguity if the deciding authorities are more representative, and if government appointees comprise a minority membership in the deciding authority. The critical issue is who, in the absence of precedent, defines terms such as national interest and public order? Definitions are likely to be highly subjective and this could lead to a degree of self-censorship which is not ultimately in the best interests of the nation.

5. The lack of transparency in the working of the MIDA and the Tribunal. My view is that the public (or generally acceptable public watchdogs) should be informed of decisions and as much as possible of the proceedings leading to the decisions.

6. The penalties for breaching the Decree are excessive. These range from up to $100,000 for editors and journalists and/or five years imprisonment and up to $500,000 for organizations and/or five years imprisonment. The consensus view is that media organizations and publishers should be held mainly accountable with much smaller penalties for individual journalists. Penalties of this magnitude will seriously limit media freedom because journalists and publishers will be overly cautious in writing or publishing any material that may be considered to possibly breach the Decree. The penalties could also bankrupt smaller, locally-owned broadcast and print media which, in turn, would reduce news, and news interpretations, available to the public. I think Government should engage in further consultations to determine more appropriate penalty levels.

7. The requirement to publish a “byline” for all news items that would identify the author. This provision could lead to reprisals. I think editorial and opinion pieces should include bylines but not ordinary news items.

8. Search Powers and Limited Rights of Appeal. I have no problem with the search powers if they also involve the police and/or require an magistrate's warrant, but I think there should be a right of appeal up to the High Court.

9. The Decree may also impact on those deemed to be in breach of the Decree, even when they are bloggers or journalists overseas, and foreign journalists based in Fiji. The probable impact on the Suva-based Pacific Islands News Association is particularly disturbing.

10. Limitations on Foreign Ownership. The draft Decree will put a 10% limit on foreign ownership, and the divestment of interests or shares in excessive of this within three months. All directors of media organizations will be required to be Fiji citizens, to have permanently resided in Fiji for five of the previous seven years, and to have lived in Fiji for nine months a year. Directors (in all except of State-owned media enterprises) may hold only one directorship in another, non-voting interest, in another media organization, but their financial interest must not exceed five percent.

Most people see this provision as an attack on the Fiji Times which is 100% owned by Rupert Murdoch's New Corp but it will also affect the ailing Fiji Daily Post that is 51% Australian owned and the pro-government Fiji Sun that has foreign directors.

Some say the attack on the Fiji Times is vindictive; others think the Fiji Times deserves all it gets. Both are partly right. It is also arguable that the attack on foreign-owned media would have been unnecessary had Government established its own news agency to publish its own news and counter incorrect and biased statements by the anti-government media, or at the very least have appointed a Public Relations team. Poor PR has been a constant Government weakness.

Fiji is not alone in its concern about foreign media ownership. Many nations have specifically prohibited or strictly limited the foreign ownership of core domestic media and communication companies, at least partly out of fear that foreign owners would use those outlets to manipulate public opinion in times of national crisis. Australia has limits on foreign ownership; Canada has legislation to prevent excessive US ownership, and Rupert Murdoch had to take up US citizenship before he was allowed to expand his media empire in the US. New Zealand (hell bent on selling assets not already sold to foreign business) has no restrictions on media ownership.

Most local people's concern with this Decree provision is the 10% limit. I think the Fiji Labour Party suggestion of 40% more appropriate. Fiji will not be well served with two less daily newspapers.

How does Fiji Compare?

There is an unstated assumption by many who criticize the Decree that democratic countries do not have laws like this but features of the Decree are seen in many countries. South African law, for example, can force journalists to reveal their sources; the Canadian Governor in Council (roughly the equivalent of Fiji's President and Cabinet) appoints directors and the board of the Canadian Broadcasting Commission. The media and the public have no say. Malaysia has at least five Acts that limit media freedom. Fiji differs not in the specifics of the Decree provisions but in the absence of checks on the authority of Government. This would be less worrying were the government elected.

Another assumption is that the primary political role of the media is as a watchdog on government, for only then, it is assumed, can ordinary people enjoy their human rights. This is not the perceived role of the media in Singapore. There the media is seen as partners of government in nation-building. In other words, in that benevolent dictatorship, nation-building (i.e., acts to assist harmonious relationships in a multi-ethnic society) is seen as more important than media freedom and the public's right to access all information. Fiji is also a multi-ethnic county and the Fiji Decree is modelled on Singapore.

A third assumption is that Western notions of media freedom usually provides the public with access to all information, presented in a fair and balanced manner. This is only partly true. Most media organizations are run as businesses, owned by businessmen and big business shareholders, and directed by people appointed by these same businessmen and shareholders. Rarely do we see the media speaking up for the poor, the underprivileged, consumers, the Trade Unions, workers on strike, or left-leaning governments. The Fiji Times most certainly did not when Fiji Labour Party-led government was in power. Media ownership and the extent of media  freedom are linked.

So where does this all lead?

The Decree would have more supporters if the Minister were required to consult others before making the the MIDA and Tribunal appointments; if the MIDA and Tribunal members were widely chosen; if searches required warrants; if appointments, dismissals and proceedings were appropriately transparent; if there could be some assurance that the Decree will not restrict “fair” comment on Government; if those held in breach of the Decree could appeal to the Courts as the final authority; if the penalties were sufficiently reduced to deter irresponsible reporting and not financially cripple the media or deter genuine journalist reports and investigations; and if restrictions on foreign ownership were lifted to, say, 30-40 percent.

These are big “ifs” to be considered by Government before the draft becomes law. We can only hope that wise counsel will result in the concerns being heeded. The ball is now in the A-G's court.