Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
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The High Court of Fiji, in a case concerning charges of sedition related to the publication of an article in the Nai Lalakai Newspaper, acquitted all accused individuals and The Fiji Times Limited. The prosecution argued that the article considered in its entirety had seditious intent, potentially inciting hostility between religious communities. The Court, however, found that it failed to conclusively prove this. The Court emphasized the importance of interpreting such cases liberally to safeguard constitutional freedoms and legitimate political discourse, stating that strong political convictions and impassioned words may not necessarily signify seditious intent. The accused individuals, including the author, editor, and publisher, were acquitted as the court found no evidence of their intention to promote ill will or hostility.
The case at hand involved five individuals who were facing charges related to sedition in connection with the publication of an article that is alleged to have seditious content under Fiji’s domestic law.
On April 27, 2016, an article was published in the Nai Lalakai Newspaper, which led to the initiation of criminal proceedings against Josaia Waqabaca, who was Accused No.1 and the author of the article. The prosecution alleged that the article had seditious intentions with the motive of inciting hostility between two religious communities, namely Muslims and non-Muslims. It is claimed that the article referred to Muslims as “land-grabbing monsters who rape, murder, and abuse children.” [para. 12] Consequently, Waqabaca was charged with sedition under Sections 67(1)(a) and 66 (1)(v) of the Crimes Act.
Following this, the Prosecution also charged Anare Ravula, Accused No.2, and Fred Wesley, Accused No.3, who are the Editor and Editor-in-Chief of Nai Lalakai Newspaper, with aiding and abetting Hank Arts in publishing the aforementioned article. The prosecution argued that they both failed in their contractual duty, which was to prevent the publication of any seditious content. [para. 2-3] Consequently, both Ravula and Wesley were charged with sedition under Sections 67(1)(a) and 66 (1)(v) of the Crimes Act. Additionally, the Prosecution initiated legal proceedings against Hank Arts, Accused No.4, and Fiji Times Limited, Accused No.5, for their role in publishing the article. Both Arts and Fiji Times Limited were charged under Sections 67(1)(a) and 66 (1)(v) of the Crimes Act. All the accused individuals pleaded not guilty. [para. 4-5]
Justice Rajasingh delivered the decision. The primary question before the Court was to determine, whether the Applicants/Accused(s) were guilty of sedition charges or not.
The Prosecution contended that the article published in the Nai Lalakai newspaper on April 27, 2016, was seditious in nature. The Prosecution contended that if the article was considered in its entirety, it inferred that Muslims are land-grabbing monsters who rape, murder, and abuse children. The language used in the article was pointed out to be highly inflammatory and could lead to severe consequences including public disorder, creating ill-will and hostility against Fijian Muslims. [para. 12] According to the prosecution, that article had the potential to foster feelings of ill-will and hostility among different segments of Fiji’s population, particularly between the Muslim and non-Muslim communities. Crucially, the prosecution’s stance was that the entirety of the article, rather than specific words or passages within it, contributed to its seditious nature. They argued that the article should be considered holistically, emphasizing that every part of it played a role in promoting ill-will and hostility among the population groups in question. Furthermore, the prosecution proposed to annex both the original version of the alleged article and its English translation to the amended information. This annexation was likely aimed at providing evidentiary support for their claim of seditious publication.
On the other hand, the Applicant argued that the proposed amendment lacked clarity regarding the specific seditious words or passages within the article. They claimed that this lack of specificity caused embarrassment to the defense team, as it hindered their ability to prepare an effective defense. Moreover, the Applicant highlighted a fundamental difference between the original information and the proposed amendment. They pointed out that the initial information was based on the allegation that a particular passage in the article had a seditious tendency, specifically in promoting ill will and hostility between different segments of Fiji’s population. However, with the proposed amendment, the prosecution shifted its stance, contending that the article, in its entirety, constituted a seditious publication. This change was significant, and the defense argued that the proposed amendment failed to specifically identify the seditious portion or words upon which the prosecution relied. The Applicant contested the prosecution’s assertion that certain parts and words within the alleged article were seditious. They argued that not all portions of the article could be considered seditious, and it was incumbent upon the prosecution to precisely identify the seditious words or passages within the article. [para. 9-10]
To ascertain whether an article could be considered seditious, the Court employed a two-stage assessment. Firstly, it endeavored to comprehend the article’s meaning and subsequently gauged whether it possessed the potential to incite hostility and animosity between Muslims and the non-Muslim population in Fiji. [para. 14] The Court began its reasoning by establishing the legal framework for seditious intention as outlined in Section 66. It delineated the various elements of seditious intention, which include actions aimed at generating contempt for the government, unlawful attempts to change legal matters, undermining the administration of justice, fostering discontent, and promoting ill will among different population groups. [para. 16]
Moreover, the Court highlighted the exceptions specified in Section 66 (1) (a) to (d) of the Crimes Act, which provide instances where an act, speech, or publication is not considered seditious. These exceptions include intentions to highlight government errors, defects, promote lawful change, or address issues contributing to ill-will. [para 17] The Court then delved into Section 66 (2), emphasizing that individuals are “deemed” to intend the natural consequences of their actions. The prosecution argues that this creates a presumption that the accused intended seditious consequences, placing the burden on the defense to refute this presumption. [para. 18]
Furthermore, the Court discussed the burden of proof, with the prosecution contending that the defense had a legal burden to disprove the presumption based on the balance of probabilities, citing Sections 60 and 61 of the Crimes Act. [para. 19] To support its position, the prosecution referred to the legal precedent set in State v Niudamu  FJHC 145, which upholds the legal burden on the defendant to rebut the presumption of seditious intention. However, the Court marked an important distinction, noting that Section 66 (2) does not explicitly state a presumption of seditious intention but rather uses the term “deemed.” It compares this with another law (Section 32 of the Illicit Drugs Control Act of 2004), which expressly states a presumption, highlighting the absence of similar wording in Section 66 (2) of the Crimes Act. [para. 20-21]
Consequently, the Court concludes that Section 66 (2) does provide a means to determine seditious intention by allowing for the construal of an objective intention. Nevertheless, the onus remains on the prosecution to furnish evidence proving beyond reasonable doubt that the presumed intention of the accused is the only inescapable and indisputable inference. The Court disagreed with the prosecution’s stance on the definition and application of Section 66 (2) of the Crimes Act. [para. 22-23] In the event that the defense relied on the grounds specified in Section 66 (1) (a) to (d), the evidential burden would then shift to the defense, in accordance with Section 59 of the Crimes Act. The defense can discharge this evidential burden by presenting evidence suggesting a reasonable possibility of the existence of the specified grounds. Nonetheless, the ultimate onus remains with the prosecution to disprove, beyond reasonable doubt, that none of the grounds listed in Section 66 (1) (a) to (d) applies to the case. The Court emphasized the importance of these legal principles in determining seditious intention and the burden and standards of proof. [para. 25-59]
Having established these legal principles, the Court proceeded to analyze the meaning of the article in question. The Court placed particular emphasis on the significance of understanding the intended audience of the contentious article. It recognized that the Nai Lalakai, where the article was published, primarily catered to the i-Taukei community residing in rural and outlying areas, and particularly the elderly population. To ascertain the article’s true meaning, the Court underscored the importance of interpreting it through the lens of a reasonable, sensible, and fair-minded i-Taukei reader. The Court stressed that the circumstances and context in which the article was authored and published must be considered. The Court took into account various factors, including leadership, social, financial, and cultural issues, as well as the historical and demographic context. It pointed out that it was the prosecution’s duty to establish the prevailing circumstances or context to determine the article’s intended meaning. [para. 31-35]
The Court clarified the offense of sedition, highlighting that it materializes when an article has the potential to incite feelings of ill-will and hostility among different segments of the population, driven by seditious intentions. It made it clear that the offense did not necessitate actual public disturbances or riots. Nevertheless, the Court acknowledged that the reaction of the readership could be considered when deciphering the article’s true meaning. [para. 36-40]
The Court engaged in a meticulous analysis of the article’s content. It highlighted references to Muslims, historical land ownership grievances, and a proposal for national reconciliation based on the Ten Commandments. [para. 41-44] The Court entertained the possibility that the article aimed to address issues and alleviate ill feelings among citizens, particularly within the i-Taukei community. A caution interview with one of the accused, Mr. Waqabaca, was examined. In this interview, Mr. Waqabaca expressed his intent to propose national reconciliation to resolve issues among citizens. The Court incorporated this as part of the defense’s argument. [para. 45-49]
Drawing from legal precedents, such as State v Mua  FJCA 23, the Court underscored that strong political convictions and impassioned words might not necessarily signify seditious intent if they were employed to express legitimate dissent with the government. It stressed the importance of safeguarding constitutional freedoms and interpreting public political articles liberally. The Court determined that the prosecution had failed to conclusively prove the article’s capacity to foment hostility between Muslims and non-Muslims in Fiji, as alleged. The Court reaffirmed that the sedition offense aimed to prevent assaults on the state’s tranquility, rather than stifling legitimate political discourse. [para. 55-69]
The Court also considered the roles of the accused individuals and the media organization. It found that there was no evidence to establish that Hanks Arts, the publisher, knew the content of the article before it was published, and therefore, he did not have the intention to promote ill will or hostility. Similarly, Wesley, the editor, was not found guilty of aiding and abetting the offense, as there was no evidence that he knew the content beforehand. In the case of Ravula, who was also charged with aiding and abetting, the Court found that he had received, approved, and edited the article, but it ultimately concluded that the article itself was not seditious. Therefore, Ravula was acquitted.
In conclusion, the Court acquitted all the accused individuals and The Fiji Times Limited of the charges of sedition. The Court emphasized the importance of interpreting such cases with a liberal spirit to protect constitutional freedoms and legitimate political comment. It declared them not guilty, offering a 30-day window for potential appeals to the Fiji Court of Appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This ruling represents a notable expansion of freedom of expression as the Fiji Court acquitted all five accused individuals, including a newspaper editor, who were facing charges of sedition due to their involvement in publishing an article alleged to have seditious content aimed at promoting hostility between religious communities. The decision places a strong emphasis on interpreting articles on political issues liberally and places the onus of proving seditious intent squarely on the prosecution, raising the bar for state interference in speech. Furthermore, it underscores the paramount importance of considering the contextual nuances surrounding the speech and underscores the protection of constitutional freedoms, with sedition charges intended to prevent disturbances to the state’s tranquility rather than curb legitimate political dissent. In essence, this verdict reinforces the preservation of free speech and sets a stringent standard for speech restrictions grounded in sedition allegations.
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