#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: 2010-01-31

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Friday, February 5, 2010

No NZ and Aust high commissioners for Fiji

New Zealand and Australia do not intend to replace their high commissioners in Fiji until they get some reassurance they will not be turfed out any time there is a disagreement between the countries.

Foreign Minister Murray McCully had talks on Thursday in Canberra with his Australian counterpart Stephen Smith and Fiji's Foreign Minister Inoke Kubuabola.

Those talks lasted about 1-1/2 hours and Mr McCully and the Fiji minister then met for the same period again in the evening.

Relations between New Zealand and Fiji have been fraught since the 2006 coup in Fiji and further deteriorated last year with the tit-for-tat expulsion of senior diplomats, which followed interim Prime Minister Commodore Voreqe (Frank) Bainimarama's repeated rejection of international deadlines for elections.

Efforts to re-staff high commissions hit another hurdle when Fiji provocatively put up Permanent Secretary for Information and military spokesman Lieutenant Colonel Neumi Leweni for the position of counsellor in Wellington.

New Zealand has a travel ban on members of the military-led regime and Lt Col Leweni played a central role in the coup, was responsible for censoring local media, deporting journalists and curbing free speech, all moves that have met with criticism from the Australian and New Zealand governments.

McCully told NZPA that he had got Australia involved in the talks after an initial meeting in Nadi in January where he and Kubuabola discussed lower level appointments to commissions.

High Commissioner appointments were not discussed. "In that respect New Zealand and Australia were in identical positions and we were not going to get involved in topics that affected Australia or set precedents for Australia without Australia being in the room," McCully told NZPA.



At New Zealand's High Commission in Suva staff from New Zealand were down to
seven: one policy officer, two support staff, two NZAID staff, and two
immigration officials. Since the coup three senior diplomats have been expelled,
while the trade representative, who was married to one of the expelled
diplomats, was also expelled, and the defence and police liaison positions were
unfilled because Fiji would not agree on roll-overs for the positions.

Fiji was down to a single non-local staff.

McCully said one goal of the talks had been achieved.

"The first objective is to be able to conduct a good civilised diplomatic
conversation because it's fair to say that New Zealand and Fiji, and Australia
and Fiji, have not had a good track record on being able to agree to
disagree."

The ministers were working on establishing a base for diplomatic
conversation.

"Hopefully that leads into upgrading the machinery by which we have
diplomatic dialogue which means lifting the capacity of our missions. But in
terms of... high commission appointments both Steven Smith and I have made the
point that there's no point in us appointing high commissioners who are going to
be sent home the first time there's a disagreement between New Zealand and Fiji
and we are not yet at that point."

McCully said while no solid understanding had been reached, a framework for
future discussions was in place.

"So it's just a question of moving this thing forward deliberately and
slowly."

McCully said the mood had been "constructive and professional".

He had talks later in the evening with his Fijian counterpart to continue
discussing the issue.

Kubuabola was "someone who is trying to do his best in difficult
circumstances".
McCully said removing the travel ban was not on New Zealand's immediate
agenda.

Fiji was suspended from the 16-nation Pacific Islands Forum in May last year and from the Commonwealth in September over Cdre Bainimarama's broken promises to hold elections by March 2009 - NZPA

Methodist church ministers out on bail

Fifteen Methodist Church ministers have been released on bail after being charged for allegedly breaching the Public Emergency Regulations.

The 15 were arrested yesterday and will appear in court in March.

A Fiji police spokesman says the ministers are alleged to have been found in breach of the condition of the permit that was granted for the church’s standing committee meeting last year.

Three other Methodist Church ministers are expected to be questioned later.

Eight other Methodist figures including church president, Reverend Ame Tugaue, general secretary Reverend Tuikilakila Waqairatu and former president Reverend Manasa Lasaro have appeared in court in a separate case on the same charges.

Ratuva says quiet diplomacy needed

After New Zealand offered an olive branch to Fiji to ease diplomatic tension between the two countries, Fiji responded in two unexpected ways.

Firstly, Prime Minister Frank Bainimarama, while welcoming the move, was also quoted by Fiji media as saying that he was "confused" with New Zealand's stance in maintaining travel sanctions.

Secondly, Fiji appointed a military officer, Lieutenant Colonel Neumi Leweni, to fill in the counsellor's position at the Fiji High Commission in Wellington, at a time when there was a ban on visit to New Zealand by Fiji military officers.

This was the latest development in the diplomatic "cold war" between the two countries since the Fiji military coup in 2006 after which New Zealand imposed "smart sanctions," which included prohibition of visits to New Zealand by Fijian military personnel. Fiji expelled three New Zealand high commissioners within three years and New Zealand retaliated in similar manner.

Lieutenant Colonel Leweni's appointment has put New Zealand in a very difficult situation. If it accepts the appointment, it would appear to be undermining its own travel sanction for military officers and would be seen to be giving in to Fiji's political whim. At the same time Fiji would feel triumphant in simultaneously scoring two scoops - restoring diplomatic links with New Zealand and out-manoeuvring the smart sanctions.

Fiji's stance would be seen by some as conspiratorially political and lacking good faith and diplomatic zeal. The New Zealand Government would no doubt be frustrated as it would feel that it is being duped into a difficult corner where it would be forced to choose between two unpalatable options.

If New Zealand refuses Fiji's proposal the initiative for diplomatic restoration between the two countries may collapse prematurely and both countries and even the Pacific region would be losers. This would be unfortunate given the great efforts by the foreign ministers of the two countries who have been meeting to put the restoration process in place.

The details of the agreement and related conditions between the two foreign ministers are not very clear but I suspect that the appointment of a Fijian military officer for diplomatic posting to Wellington was probably not part of it.

Given that both countries are in the process of restoring diplomatic relations, there should be more restraint, sensitivity and innovative diplomacy by both sides. They should use silent diplomacy to arrive at a consensus about their potential appointees. For instance, Fiji shouldn't have rushed into announcing its appointee but rather engaged further in silent diplomacy with New Zealand to find out if it was acceptable.

By announcing the name of a military officer in the first place, Fiji was in danger of derailing the sensitive process in a potentially irreversible way, at least for the foreseeable future.

Winning political points by putting New Zealand on the defensive does not help Fiji's case at all. On the contrary, it could prolong the agony of isolation and unnecessary continuing conflict with an important neighbour. On the other hand, if New Zealand responds negatively to Fiji's appointment, the situation could escalate into a new round of political showdowns with both countries blaming each other of responsibility for the failed diplomatic initiative.

Outright rejection of Fiji's proposal may only make matters irretrievably worse and a new approach may be needed at this point in time.

The future of the Fiji-NZ diplomatic relations now rests with New Zealand's response. The response should be innovative and sensitive enough to salvage a diplomatic process which now has the potential to fail.

Another round of diplomacy, this time around, using silent diplomacy should be pursued in earnest to discuss Fiji's proposal. They should arrive at a consensus before any announcement is made.

Premature publicity and manipulation of publicity to achieve psychological upper-hand and political advantage could be counter-productive to diplomatic success.

It should be based on a "win-win" goodwill and reciprocal spirit, not on the "attack and counter-attack" strategy the two countries have been deploying since 2006. They should put all their cards on the table and make themselves transparent to each other as a precondition for continuing dialogue.

The first step should be restoration of full diplomatic relations. The second step should then be discussion of the difficult issues like smart sanctions.

The two issues should not be mixed up. The two governments owe it to the ordinary citizens of the two countries and to good relations and stability in the Pacific region generally -Dr Steven Ratuva

Wednesday, February 3, 2010

Shameem says Fiji media misunderstands Crimes Decree

The Fiji media has misunderstood the new criminal procedure decree, says former High Court judge Nazhat Shameem.

Shameem says the new decree specifically deals with cases that are being transferred to the High Court and not other cases.

"The provision in section 201 of the new Criminal Procedure Decree restricts the publication of written reports or broadcasts in relation to proceedings before they are transferred to the High Court, so they are referring to cases that are going to be tried in the High Court or are being transferred to the High Court. So, for instance, they would apply to murder cases or rape cases which can only be tried in the High Court."

Shameem says the decree is clear on what the media can report.

"The restrictions are set out in section 201 of the Criminal Procedure Decree and the restriction is that until the transfer to the High Court, the media may only publish, broadcast a report of the transfer proceedings, the identity of the court, magistrate, the name, age, occupation of the accused person, the summary of the charge, the name of the lawyers and whether or not the accused person is remanded in custody or on bail."

This she says is no different from the previous laws.

“So in fact as far as restrictions on the media reporting matters in court prior to transfer, the law hasn’t changed at all.” (Fiji Broadcasting Corporation/Pacific Media Watch)

CCF concerned about Crimes Decree

The Citizens’ Constitutional Forum says its concerned about the reduction of penalties for coups and treasons under the new Crimes Decree which came into effect on Monday.

It says this could lead to greater acceptance of these crimes.

“The promulgation of over 50 decrees by this government since April 2009 is perpetuating the coup culture. In our view, the new decree will not end the cycle of coups and is against the recommendations on Ending the Coup Culture that are in the People’s Charter,” CCF Chief Executive Officer Rev Akuila Yabaki said.

For a person who commits treason resulting in the death or imprisonment of the Prime Minister or President, or acts that collude to an armed invasion or war, the penalty of imprisonment for life has been retained.

“Of major concern, however, is that a new element of intention is now incorporated into crimes relating to treason. A person committing treason who can justify that they were acting in good faith or that their action was necessary, will now incur sentences of less than 15 years or could even go free,” Rev Yabaki said.

The organisation says the courts now have to consider if a person committing an act of treason was acting in good faith to show that:- The Prime Minister, the President or one of the advisers were mistaken; There are errors or defects in the Government of Fiji, the Constitution of Fiji, the legislation or the administration of justice; or There are feelings of ill-will or hostility between different groups.

“These considerations mitigate the offence of treason by making treason more acceptable in law if it is done with good intentions. These provisions of the new Crimes Decree perpetuate the coup-culture in Fiji and do not take into account the severity of crimes of this nature,” Rev Yabaki said.

It says penalty for mutiny has now been reduced to 15 years imprisonment whereas the penalty for minor misdemeanours has been increased to up to five years imprisonment.

Tuesday, February 2, 2010

Naidu on new Crimes Decree and pension threat

The President of Fiji's Law Association says new laws will make it a criminal offence for anyone to criticise the Fijian government - either inside or outside the country.

Dorsami Naidu told Radio Australia's Pacific Beat the interim government's threat to cancel the pensions of its critics could unfairly influence the judiciary.

Mr Naidu says while there's no evidence yet that the judiciary's performance has been affected by Fiji's political climate, retired judges are at risk if they speak out.

Listen: http://www.abc.net.au/ra/pacbeat/stories/m1842070.asx

Monday, February 1, 2010

Crimes Decree 2009 vs repealed Penal Code

Sedition and incitement offences: There is a new incitement offence in section 48 of the Crimes Decree – in the previous Penal Code, this offence did not exist. Of concern too are the sedition offence in section 65 and the urging political violence and communal disaffection offence in section 65, by which bloggers and those who use electronic communication can be imprisoned for up to 10 years. The sedition offence strangely carries only a 1 year imprisonment penalty + 2 penalty points (see the sentencing decree for penalties which seem to be fines).

Extra-territorial application: The Crimes Decree now has extra-territorial application to what Fiji citizens/residents do and say in other countries, for which they may be prosecuted on return to Fiji, or extradition proceedings filed by the government for their return to Fiji for prosecution.

No time limitation: The now repealed Penal Code required that prosecutions be instituted within 2 years of the commission of the treason offences, and within 6 months for the sedition offences. The new Crimes Decree does not have these limitations, meaning that there is no longer a time limitation to the prosecution of these offences.

The now repealed Penal Code required two witnesses for treason - no longer under the new Decree.

See the Provisions on extra-territorial jurisdiction and application of the decree (Part III sections 6-9) and the sedition offences.

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PART 3 — TERRITORIAL APPLICATION OF THE CRIMINAL LAWS
Extent of jurisdiction of Fiji’s courts

6.—(1) Subject to the other sections of this Part, the jurisdiction of the courts of Fiji for the purposes of this Decree extends to every place within Fiji or within—
(a) the internal waters of Fiji;
(b) the archipelagic waters of Fiji; or
(c) the territorial seas of Fiji.

(2) The jurisdiction of the courts of Fiji may extend to the contiguous zone and the exclusive economic zone of Fiji in accordance with the provisions of the United Nations Convention on the Law of the Sea and any law in Fiji implementing the Convention.

Standard geographical jurisdiction


7.—(1) Unless any of the provisions of section 8 apply to an offence under this Decree or any other Act or Decree, a person does not commit an offence against the laws of Fiji unless—
(a) the conduct constituting the alleged offence occurs—
(i) wholly or partly in Fiji; or
(ii) wholly or partly on board a Fijian aircraft or a Fijian ship; or

(b) the conduct constituting the alleged offence occurs wholly outside Fiji and a result of the conduct occurs—
(i) wholly or partly in Fiji; or
(ii) wholly or partly on board a Fijian aircraft or a Fijian ship; or

(c) all of the following conditions are satisfied—
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs wholly outside Fiji; and
(iii) the conduct constituting the primary offence to which the ancillary offence relates, or a result of that conduct occurs (or is intended by the person to occur) wholly or partly in Fiji, or wholly or partly on board a Fijian aircraft or a Fijian ship.

 Extended geographical jurisdiction

8.—(1) The provisions of this Decree or any other Act or Decree prescribing an offence may extend the standard geographical jurisdiction to be applied to that offence by providing that the offence may be committed by—
(a) any citizen of Fiji in any place outside of Fiji;
(b) any corporation registered in Fiji in any place outside of Fiji;
(c) any resident of Fiji in any place outside of Fiji;

(2) Any provision of this Decree or any other Act which extends the geographical jurisdiction under sub-section (1) may specifically make the extension of geographical jurisdiction conditional upon there being no comparable offence in the foreign jurisdiction where the citizen, corporation or resident committed the offence.

(3) Proceedings for an offence committed by a resident of Fiji in accordance with sub-section (1)(c) require the written consent of the Director of Public Prosecutions a person may be arrested and charged with such an offence (and remanded or released on bail) before the necessary consent has been given.

 Conduct taken to occur partly in Fiji


9.—(1) F or the purposes of this Part, if a person sends a thing, or causes a thing to be sent—
(a) from a point outside Fiji to a point in Fiji;
(b) from a point in Fiji to a point outside Fiji—the conduct is taken to have occurred partly in Fiji.

 (2) For the purposes of this Part, if a person sends, or causes to be sent, an electronic communication—

(a) from a point outside Fiji to a point in Fiji;
(b) from a point in Fiji to a point outside Fiji—the conduct is taken to have occurred partly in Fiji.

(3) For the purposes of this section, “point” includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, underwater, at sea or anywhere else.

Incitement
48. – (1) A person who urges the commission of an offence is guilty of the offence of incitement.

(2) Subject to sub-section (5), for the person to be guilty, the person must intend that the offence incited be committed.

(3) A person may be found guilty even if committing the offence incited is impossible.

(4) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(5) Any special liability provisions that apply to an offence apply also to the offence of incitement in respect of that offence.

(6) It is not an offence to incite the commission of an offence against section 44 (attempt), this section or section 49 (conspiracy).

(7) The penalty for an offence against this section shall be—
(a) if the offence incited is punishable by life imprisonment—imprisonment for 10 years; or
(b) if the offence incited is punishable by imprisonment for 14 years or more, but is not punishable by life imprisonment—imprisonment for 7 years; or
(c) if the offence incited is punishable by imprisonment for 10 years or more, but is not punishable by imprisonment for 14 years or more—imprisonment for 5 years; or
(d) if the offence is otherwise punishable by imprisonment—imprisonment for 3 years or for the maximum term of imprisonment for the offence incited, whichever is the lesser; or
(e) if the offence incited is not punishable by imprisonment—the number of penalty units equal to the maximum number of penalty units applicable to the offence incited.

PART 10 — TREASON AND OTHER OFFENCES AGAINST GOVERNMENT AUTHORITY


63. Definitions
64. Treason
65. Urging political or inter-group force or violence
66. Seditious intention
67 Seditious offences
68. Urging a person to assist the enemy
69 Urging a person to assist those engaged in armed hostilities
70. Determination of certain elements of offences under this Part
71. Extended jurisdiction for offences against this Part

PART 11 — OTHER OFFENCES AGAINST PUBLIC ORDER

72. Inciting to mutiny
73. Aiding soldiers or police in act of mutiny
74. Inducing soldier or police to desert
75. Aiding prisoners of war to escape

PART 10 . TREASON AND OTHER OFFENCES AGAINST GOVERNMENT AUTHORITY

Definitions
63. In this Part ”organization” means.
(a) a body corporate; or
(b) an unincorporated body;

whether or not the body is based outside Fiji, consists of persons who are not Fijian citizens, or is part of a larger organisation.

Treason

64..(1) A person commits the indictable offence of treason, if at the time of the offence being a Fijian citizen or resident, the person.
 (a) causes the death of the President or the Prime Minister; or
(b) causes harm to the President or the Prime Minister resulting in the death of the President or the Prime Minister; or
(c) causes harm to the President or the Prime Minister, or imprisons or restrains the President or the Prime Minister; or
(d) levies war, or does any act preparatory to levying war, against Fiji; or
(e) engages in conduct that materially assists, with intent to assist, an enemy at war with Fiji, (whether or not the existence of a state of war has been declared);
(f) engages in conduct that materially assists, with intent to assist.

(i) another country; or
(ii) an organisation;

that is engaged in armed hostilities against the Fiji Military Forces or

(g) instigates a person who is not a citizen of Fiji to make an armed invasion of Fiji or any part of Fiji; or
(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.

Penalty . Imprisonment for life.

 (2) Sub-sections (1) (e) and (f) do not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

(3) Sub-section (1) (h) does not apply to formation of an intention to engage in conduct that.

(a) is referred to in sub-section (1) (e) or (f); and
(b) is by way of, or for the purposes of, the provision of aid of a humanitarian nature.

(4) A person commits an indictable offence if the person.
(a) receives or assists another person who, to his or her knowledge, has committed treason with the intention of allowing him or her to escape punishment or apprehension; or
(b) knowing that another person intends to commit treason, does not inform the President, the Prime Minister or a judge, magistrate or police officer of it within a reasonable time, or use other reasonable endeavours to prevent the commission of the offence.

Penalty . Imprisonment for life.

(5) On the trial of a person charged with treason on the ground that he or she formed an intention to do an act referred to in sub-section (1)(a), (b), (c), (d), (e), (f) or (g) and manifested that intention by an overt act, evidence of the overt act is not to be admitted unless the overt act is alleged in the information.

Urging political violence or inciting communal antagonism


65..(1) A person commits an indictable offence (which is triable summarily) if the person intentionally urges another person to overthrow by force or violence.

(a) the Constitution of Fiji; or
(b) the Government of Fiji; or
(c) the lawful authority of the Government of Fiji.

Penalty . Imprisonment for 15 years.

(2) A person commits an indictable offence (which is triable summarily) if the person by any communication whatsoever including electronic communication, or by signs or by visible representation intended by the person to be read or heard.

(a) makes any statement or spreads any report which is likely to.

(i) incite dislike or hatred or antagonism of any community; or
(ii) promote feelings of enmity or ill-will between different communities, religious groups or classes of the community; or
(iii) otherwise prejudices the public peace by creating feelings of communal antagonism; or

(b) makes any intimidating or threatening statement in relation to a community or religious group other than the person's own which is likely to arouse fear, alarm, or insecurity amongst members of that community or religious group

Penalty . Imprisonment for 10 years.

(3) Recklessness applies to the element of the offence under sub-section (1) that it is.

(a) the Constitution; or
(b) the Government of Fiji; or
(c) the lawful authority of the Government of Fiji.

that the first.mentioned person urges the other person to overthrow.

(4) For a person to be guilty of an offence under this section the person must intend that the force or violence urged will occur.

(5) Recklessness applies to the element of the offence under subsection (2) that the communication, signs or representation made by the person is likely to have the effect specified in sub-paragraphs (a) and (b).

Seditious Intention

66..(1)A seditious intention is an intention.

(i) to bring into hatred or contempt or to excite disaffection against the Government of Fiji as by law established; or
(ii) to excite the inhabitants of Fiji to attempt to procure the alteration, otherwise than by lawful means, of any matter in Fiji as by law established; or
(iii) to bring into hatred or contempt or to excite disaffection against the administration of justice in Fiji; or
(iv) to raise discontent or disaffection amongst the inhabitants of Fiji; or
(v) 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.

(a) to show that the Government of Fiji has been misled or mistaken in any of its measures; or
(b) 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
(c) to persuade the inhabitants of Fiji to attempt to procure by lawful means the alteration of any matter in Fiji as by law established; or
(d) 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.

Seditious offences

67..(1) A person commits an indictable offence (which is triable summarily) if the person.
(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do any act with a seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or
(d) imports any seditious publication, unless he has no reason to believe that it is seditious.

Penalty . Imprisonment for 7 years.

(2) A person commits a summary offence if without lawful excuse the person has in his possession any seditious publication.

Penalty . Imprisonment for 1 year and 2 penalty points.

(3) A person shall not be prosecuted for an offence under this section without the written consent of the Director of Public Prosecutions.

Urging a person to assist the enemy

68..(1) A person commits a summary offence if.

(a) the person urges another person to engage in conduct; and
(b) the first.mentioned person intends the conduct to assist an organisation or country; and
(c) the organisation or country is.

at war with Fiji, whether or not the existence of a state of war has been declared

Penalty . Imprisonment for 7 years.

(2) This section does not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Urging a person to assist those engaged in armed hostilities

69..(1) A person commits a summary offence if.

(a) the person urges another person to engage in conduct; and
(b) the first.mentioned person intends the conduct to assist an organisation or country; and
(c) the organisation or country is engaged in armed hostilities against the Fiji Military Force.

Penalty . Imprisonment for 7 years.

(2) This section does not apply to engagement in conduct by way of, or for the purposes of, the provision of aid of a humanitarian nature.

Determination of certain elements of offences under this Part

70..(1) F or the purposes of determining whether a person has intended that force or violence shall occur in the context of an offence under this Part, or intended to materially assist an enemy, organisation or group in relation to an offence under this Part, the court shall have regard to the context in which the conduct occurred, including whether the person’s conduct was done:

(a) in good faith to show that any of the following persons are mistaken in any of his or her counsels, policies or actions.
(i) the President;
(ii) the Prime Minister;
(iii) an adviser of either of the above;
(iv) a person responsible for the government of another country; or

(b) to point out in good faith errors or defects in the following, with a view to reforming those errors or defects.

(i) the Government of Fiji;
(ii) the Constitution of Fiji;
(iii) legislation of Fiji or another country;
(iv) the administration of justice of or in Fiji, or another country; or

(c) to urge in good faith another person to attempt to lawfully procure a change to any matter established by law, policy or practice in Fiji or another country; or

(d) to point out in good faith any matters that are producing, or have a tendency to produce, feelings of ill will or hostility between different groups, in order to bring about the removal of those matters; or

(e) to do anything in good faith in connection with an industrial dispute or an industrial matter; or

(f) to publish in good faith a report or commentary about a matter of public interest.

(2) In considering matters under sub-section (1), the Court may have regard to any relevant matter, including whether the acts were done.

(a) for a purpose intended to be prejudicial to the safety or defence of Fiji; or
(b) with the intention of assisting an enemy at war with Fiji;
(c) with the intention of assisting another country, or an organisation, that is engaged in armed hostilities against the Fiji Military Force; or
(d) with the intention of causing violence or creating public disorder or a public disturbance.

Extended jurisdiction for offences against this Part

71. A person commits an offence against all sections of this Part.
(a) whether or not the conduct constituting the alleged offence occurs in Fiji; and
(b) whether or not a result of the conduct constituting the alleged offence occurs in Fiji.

PART 11 . OTHER OFFENCES AGAINST PUBLIC ORDER

Inciting to mutiny

72..(1) A person commits an offence if he or she attempts to.
(a) seduce any person serving in the military forces of Fiji or any police officer from his or her duty and allegiance to Fiji; or
(b) incite any such persons to commit an act of mutiny or any traitorous or mutinous act; or
(c) incite any such persons to make or endeavour to make a mutinous assembly.

Penalty . Imprisonment for 15 years.

(2) The offences under sub-section (1) are indictable offences which are triable summarily.

Aiding soldiers or police in act of mutiny

73. A person commits a summary offence if he or she.
(a) aids, abets, or is accessory to, any act of mutiny by any non-commissioned officer or private of the military forces of Fiji or any police officer; or
(b) incites any person named in paragraph (a) to sedition or to disobedience to any lawful order given by a superior officer.

Penalty . Imprisonment for 5 years.

Inducing soldier or police to desert

74. A person commits a summary offence if he or she, by any means (directly or indirectly).
(a) procures or persuades or attempts to procure or persuade any non-commissioned officer or private of the Fiji military forces or any police officer to desert; or
(b) aids, abets, or is accessory to the desertion of any person named in paragraph (a); or
(c) having reason to believe a person named in paragraph (a) is a deserter and he or she harbours or aids in concealing the person.

Penalty . Imprisonment for 5 years.

Aiding prisoners of war to escape

75. A person commits a summary offence if he or she aids an alien enemy, being a prisoner of war in Fiji.
(a) to escape from prison or a place of confinement; or
(b) if the prisoner of war is at large on parole, to escape from Fiji.

Penalty . Imprisonment for 5 years.

For comparison, below are the previous treason and sedition offences of the now repealed Penal Code:


 PART TWO-CRIMES

Division I-Offences against Public Order

CHAPTER VII-TREASON AND OTHER OFFENCES AGAINST THE SOVEREIGN'S AUTHORITY
50. Treason by the law of England.
51. Instigating invasion.
52. Misprision of treason.
53. Treasonable felonies.
54. Limitations as to trial for treason. misprision of treason, or treasonable felonies.
55. Inciting to mutiny.
56. Aiding soldiers or policemen in acts of mutiny.
57. Inducing soldiers or policemen to desert.
58. Aiding prisoners of war to escape.
59. Definition of overt acts.
60. Definitions for purposes of sections relating to sedition, etc.
61. Power to prohibit importation of publication.
62. Offences in relation to publications, the importation of which is prohibited.
63. Delivery of prohibited publication to police station.
64. Power to examine packages.
65. Seditious intention.
66. Seditious offences.
67. Suspension of newspaper containing seditious matter.
68. Power of Court to prohibit circulation of seditious publications.

CHAPTER VII-TREASON AND OTHER OFFENCES AGAINST

THE SOVEREIGN'S AUTHORITY

Treason by the law of England
50. Any person who compasses, imagines, invents, devises or intends any act, matter or theory, the compassing, imagining, inventing, devising or intending whereof is treason by the law of England for the time being in force, and expresses, utters or declares such compassing, imagining, inventing, devising or intending by publishing any printing or writing or by any overt acts or does any act which if done in England, would be deemed to be treason according to the law of England for the time being in force, is guilty of the offence termed treason and shall be †sentenced to death.
†Amended by Ordinance No. 12 of 1969.

Instigating invasion
51. Any person who instigates any foreigner to invade Fiji with an armed force is guilty of treason, and shall be sentenced to death. Amended by Ordinance No. 12 of 1969

Misprision of treason
52. Any person who-
(a) becomes an accessory after the fact to treason; or

(b) knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to the *Governor-General, the Minister or to a magistrate or police officer or use other reasonable endeavours to prevent the commission of the offence,
*Amended by Order 8th October, 1970. Is guilty of the felony termed misprision of treason, and is liable to imprisonment for life.

Treasonable felonies
53. Any person who forms an intention to effect any of the following purposes, that is to say-

*(a) to depose Her Majesty from any style, honour and royal name to which she is entitled; or
* Substituted by 14 of 1975 s.6.

(b) to levy war against Her Majesty within any part of Her Majesty's territories, or within any country which has been declared to be under her protection or in respect of which Her Majesty has a accepted a trusteeship agreement, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe, the legislature or legislative authority of any of Her Majesty's territories, or of any country which has been declared to be under her protection or in respect of which Her Majesty has accepted a trusteeship agreement; or (Amended by 37 of 1966, s. 5)

(c) to instigate any foreigner to make an armed invasion of any of Her Majesty's dominions or of any country which has been declared to be under her protection or in respect of which Her Majesty has accepted a trusteeship agreement, and manifests such intention by an overt act, or by publishing any printing or writing, is guilty of a felony, and is liable to imprisonment for life.

Limitations as to trial for treason, misprision of treason, or treasonable felonies

54. A person cannot be tried for treason, or for any of the felonies defined in sections 51, 52 or 53, unless the prosecution is commenced within two years after the offence is committed.

Two witnesses necessary
Nor can a person charged with treason, or with any of such felonies, be convicted, except on his own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act of the kind of treason or felony alleged, or the evidence of one witness to one overt act, and one other witness to another overt act of the same kind of treason or felony.

This section does not apply to cases in which the overt act of treason alleged is the killing of Her Majesty, or a direct attempt to endanger the life or injure the person of Her Majesty.

Inciting to mutiny
55. Any person who advisedly attempts to effect any of the following purposes, that is to say-

(a) to seduce any person serving in the military forces of Fiji or any police officer from his duty and allegiance to Her Majesty; or

(b) to incite any such persons to commit an act of mutiny or any traitorous or mutinous act; or

(c) to incite any such persons to make or endeavour to make a mutinous assembly, is guilty of a felony, and is liable to imprisonment for life.

Aiding soldiers or policemen in acts of mutiny

56. Any person who-

(a) aids, abets, or is accessory to, any act of mutiny by; or

(b) incites to sedition or to disobedience to any lawful order given by a superior officer, any non-commissioned officer or private of the military forces of Fiji or any police officer, is guilty of a misdemeanour.

Inducing soldier or policemen to desert

57. Any person who, by any means whatsoever, directly or indirectly-

(a) procures or persuades or attempts to procure or persuade to desert; or

(b) aids, abets, or is accessory to the desertion of; or

(c) having reason to believe he is a deserter, harbours or aids in concealing, any non-commissioned officer or private of the Fiji military forces or any police officer is guilty of a misdemeanour and is liable to imprisonment for six months.

Aiding prisoners of war to escape
58. Any person who-

(a) knowingly and advisedly aids an alien enemy of Her Majesty, being a prisoner of war in Fiji, whether such prisoner is confined in a prison or elsewhere, or is suffered to be at large on his parole, to escape from his prison or place of confinement, or, if he is at large on his parole, to escape from Fiji, is guilty of a felony, and is liable to imprisonment for life;

(b) negligently and unlawfully permits the escape of any such person as is mentioned in paragraph (a), is guilty of a misdemeanour.

Definition of overt acts
59. In the case of any of the offences defined in this Chapter, when the manifestation by an overt act of an intention to effect any purpose is an element of the offence, every act of conspiring with any person to effect that purpose, and every act done in furtherance of the purpose by any of the persons conspiring, is deemed to be an overt act manifesting the intention.

Definitions for purposes of sections relating to sedition, etc.
60. For the purposes of sections 61 to 68-

"import" includes-

(a) to bring into Fiji; and

(b) to bring within the waters of Fiji whether or not the publication is brought ashore, and whether or not there is an intention to bring the same ashore; "newspaper" means a periodical publication containing any public news or comments thereon or any discussion of political matters;

"periodical publication" includes every publication issued periodically, or in parts or numbers at intervals, whether regular or irregular;

"publication" includes all written or printed matter and everything, whether of a nature similar to written or printed matter or not, containing any visible representation, or by its form, shape, or in any manner capable of suggesting words or ideas, and every copy and reproduction of any publication;

"seditious publication" means a publication having a seditious intention;

"seditious words" means words having a seditious intention.

Power to prohibit importation of publication
61. If the *Minister is of opinion that the importation of any publication would be contrary to the public interest, he may in his absolute discretion, by order prohibit the importation of such publication, and in the case of periodical publication may, by the same or subsequent order, prohibit the importation of any past or future issue thereof.
* Amended by Order 8th October, 1970.

Offences in relation to publications, the importation of which is prohibited
62.-(1) Any person who, †except with the permission of the *Minister, imports, publishes, sells, offers for sale, distributes or reproduces any publication, the importation of which has been prohibited under section 61, or any extract therefrom, 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, and for a subsequent offence to imprisonment for three years; and such publication or extract therefrom shall be forfeited to Her Majesty.
† Inserted by Ordinance No. 12 of 1969.
* Amended by Order 8th October, 1970.

(2) Any person who without lawful excuse has in his possession any publication the importation of which has been prohibited under section 61, or any extract therefrom, is guilty of a misdemeanour, and is liable for a first offence to imprisonment for one year or to a fine of one hundred dollars or to both such imprisonment and fine, and for a subsequent offence to imprisonment for two years; and such publication or extract therefrom shall be forfeited to Her Majesty.

Delivery of prohibited publication to police station
63-(1) Any person to whom any publication the importation of which has been prohibited under section 61, or any extract therefrom, is sent without his knowledge or privity or in response to a request made before the prohibition of the importation of such publication came into effect, or who has such a publication of extract therefrom in his possession at the time when the prohibition of its importation comes into effect, shall forthwith if or as soon as the nature of its contents have become known to him, or, in the case of a publication or extract therefrom coming into the possession of such person before an order prohibiting its importation has been made, forthwith upon the coming into effect of an order prohibiting the importation of such publication, deliver such publication or extract therefrom to the officer in charge of the nearest police station, and in default thereof is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of one hundred dollars or to both such imprisonment and fine; and such publication or extract therefrom shall be forfeited to Her Majesty.

(2) A person who complies with the provisions of subsection (1) or is convicted of an offence under that subsection is not liable to be convicted for having imported or having in his possession the same publication or extract therefrom.

Power to examine packages
64-(1) Any of the following officers, that is to say:-

(a) the Comptroller of Customs, the Commissioner of Police, the ‡Permanent Secretary for Posts and Telecommunications, or any officer authorised in that behalf in writing by any one of them; or
‡ Amended by Order 1 November, 1971.

(b) any other officer authorised in that behalf by the *Minister, may detain, open and examine any package or article which he suspects to contain any publication or extract therefrom which it is an offence under the provisions of section 62 to import, publish, sell, offer for sale, distribute, reproduce or possess, and during such examination may detain any person importing, distributing or posting such package or article or in whose possession such package or article is found.
* Amended by Order 8th October, 1970.

(2) If any such publication or extract therefrom is found in such package or article, the whole package or article may be impounded and retained by the officer, and the person importing, distributing or posting it or in whose possession it is found, may forthwith be arrested and proceeded against for the commission of an offence under section 62 or section 63 as the case may be.

Seditious intention

65.-(1) A "seditious intention" is an intention-

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

(ii) 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

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

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

(v) 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-

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

(b) 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

(c) 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

(d) 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.

Seditious offences

66.-(1) Any person who-

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

(b) utters any seditious words;

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

(d) 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, and for a subsequent offence to imprisonment for three years; and any such seditious publication shall be forfeited to Her Majesty.

(2) Any person who without lawful excuse has in his possession any seditious publication is guilty of a misdemeanour, and is liable for a first offence to imprisonment for one year or to a fine of one hundred dollars or to both such imprisonment and fine, and for a subsequent offence to imprisonment for two years; and such publication shall be forfeited to Her Majesty.

(3) No prosecution for an offence under this section shall be begun except within six months after the offence is committed.

(4) A person shall not be prosecuted for an offence under this section without the written consent of the *Director of Public Prosecutions.
* Amended by Order 8th October, 1970.

(5) No person shall be convicted of an offence under this section on the uncorroborated testimony of one witness.

Suspension of newspaper containing seditious matter
67.-(1) Whenever any person is convicted of publishing in any newspaper matter having a seditious intention, the court may, if it thinks fit, either in lieu of or in addition to any other punishment, make orders as to all or any of the following matters, that is to say:-

(a) prohibiting, either absolutely or except on conditions to be specified in the order, for any period not exceeding one year from the date of the order, the future publication of that newspaper;

(b) prohibiting, either absolutely or except on conditions to be specified in the order, for the period aforesaid, the publisher, proprietor or editor of that newspaper from publishing, editing or writing for any newspaper, or from assisting, whether with money or money's worth, material, personal service or otherwise, in the publication, editing or production of any newspaper; and

(c) that for the period aforesaid any printing press used in the production of the newspaper be used only on conditions to be specified in the order, or that it be seized by the police and detained by them for the period aforesaid.

(2) Any person who contravenes an order made under this section is guilty of a misdemeanour, and is liable to imprisonment for six months or to a fine of two hundred dollars or to both such imprisonment and fine.

(3) Nothing in this Code shall affect the power of the court to punish any person contravening an order made under this section for contempt of court:

Provided that no person shall be punished twice for the same offence.

Power of court to prohibit circulation of seditious publications

68.-(1) Whenever on the application of the *Director of Public Prosecutions it is shown to the satisfaction of the court that the issue or circulation of a seditious publication is or if commenced or continued would be likely to lead to unlawful violence, or appears to have the object of promoting feelings of hostility between different classes or races of the community, the court shall make an order (in this section called a "prohibition order") prohibiting the issuing and circulation of that publication (in this section called a "prohibited publication") and requiring every person having any copy of the prohibited publication in his possession, power or control forthwith to deliver every such copy into the custody of the police.
* Amended by Order 8th October, 1970.

(2) An order under this section may be made ex parte on the application of the *Director of Public Prosecutions in chambers.
* Amended by Order 8th October, 1970.

(3) It shall be sufficient if the order so describes the prohibited publication that it can be identified by a reasonable person who compares the prohibited publication with the description in the prohibition order.

(4) Every person on whom a copy of a prohibition order is served by any police officer shall forthwith deliver to that police officer every prohibited publication in his possession, power or control, and if he fails to do so he is guilty of a misdemeanour, and is liable to imprisonment for one year or to a fine of two hundred dollars or to both such imprisonment and fine.

(5) Every person to whose knowledge it shall come that a prohibited publication is in his possession, power or control shall forthwith deliver every such publication into the custody of the police.

(6) The court may, if it thinks fit, either before or after or without service of the prohibition order on any person, issue a warrant authorising any police officer not below the rank of sergeant and his assistants to break, enter and search, either by day or night, any building or place specified in the order, and any enclosure, room, box, receptacle or thing in such building or place, and to seize and carry away every prohibited publication there found, and to use such force as may be necessary for the purpose.

A copy of the prohibition order and of the search warrant shall be left in a conspicuous position at every building or place so entered.

(7) The owner of any prohibited publication delivered or seized under this section may, at any time within fourteen days after the delivery or seizure, petition the court for the discharge of the prohibition order, and the court, if on the hearing of the petition it decides that the prohibition order ought not to have been made, shall discharge the order and shall order the prohibited publication delivered by or seized from the petitioner to be returned to him.

(8) Every prohibited publication delivered or seized under this section with respect to which a petition is not filed within the time aforesaid or which is not ordered to be returned to the owner shall be deemed to be forfeited to Her Majesty.

Apology: Criminal Decree story

Coupfourpointfive would like to apologise for the inaccurate story on the Criminal Decree that we've received criticised for.

The mistake was not intentional. We work under pressure and sometimes it can become too much.

It has now been corrected and we continue to strive for accuracy as best as we can.

Vinaka.

Sunday, January 31, 2010

Rudd needs to change attitude towards Fiji - study

Australia should "eliminate some of the negatives" in its bilateral relationship with Fiji's military regime, a new study suggests.

A paper released by the Australian Strategic Policy Institute (ASPI), says the Fiji government's attitude had hardened in the face of international condemnation.

Author Professor Richard Herr of the University of Fiji said there was no guarantee Fiji would respond in a manner that would satisfy the Australian government.

The current approach had produced an impasse with no suggestion that Fiji was about to back down.

Professor Herr said short of a regime change in Fiji, Australia could either wait for events to take their course or re-engage at a political level.

"...it is time for a fresh approach by Australia to prepare the grounds for a more effective re-engagement with the government of Fiji," he said.

"For this to occur, there's a need to eliminate some of the more important irritants that have festered for three years and have intensified feelings of distrust within the Fiji Government."

Fiji has experienced four military coups since 1987 - the most recent in December 2006 put Commodore Frank Bainimarama in power.

Last year he abrogated Fiji's constitution, subsequently announcing a timetable for constitutional change but no elections before 2014.

Australia responded strongly, expelling diplomats and imposing travel bans.

Fiji is suspended from the Pacific islands Forum.

The result has been an increasingly rancorous relationship.

Professor Herr said Australia could seek to improve the relationship in a number of ways.

They included amending Fiji's suspension from the Pacific Islands Forum so that it was only barred from forum-only events.

Both the former and present Australia governments have expressed their disapproval of Fiji's actions in the strongest terms.

But Professor Herr said the diplomatic temperature could be reduced if Australia eased back on provocative rhetoric.

Australia could also make its sanctions smarter by easing travel bans on Fijian officials and their families. The consequences of these bans have included banning some Fijian students from coming to Australia and stopping a Fijian footballer from joining the Australian Football League.

The defence relationship was an early casualty.

Professor Herr said it made no sense for Australia to refuse to have any connection with the one Fijian institution that holds effective power.

He suggested tensions could also be eased by working cooperatively on matters such as search and rescue and disaster relief.

"Hopefully, the Bainimarama government will respond in a positive fashion," he said.

"The process of re-engagement has to begin somewhere, sometime by someone to produce a more productive relationship for the peoples of both Australia and Fiji.

"Eliminating some of the negatives in the current bilateral relationship is a necessary first step toward re-engaging positively." AAP