See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/325865075

Sedition and the Question of Freedom of Expression in Fiji

Article · June 2018

CITATIONS READS

0 1,320

1 author:

Jalesi Nakarawa
Fiji National University
1 PUBLICATION   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Power, Aggression and Domestic Violence: The New Zealand Exprience View project

All content following this page was uploaded by Jalesi Nakarawa on 20 June 2018.

The user has requested enhancement of the downloaded file.

 SEDITION AND THE QUESTION OF FREEDOM
OF EXPRESSION IN FIJI

JALESI NAKARAWA

ABSTRACT

Freedom of expression is fundamental to democracy for a democratic society

constitutes diversity in thought and opinion. A democratic government must realise
that criticism and condemnation underpin democracy, as well as dissent and
opposition, for free speech and robust political debate are cornerstones of a
democratic society. Limitations to such freedom exist in law as in sedition but a clear
distinction in the law between free speech and conduct calculated to affect a seditious
intent is fundamental. For sedition is historically associated with stifling and
punishing criticism of the established authority to reign in political dissidents.
Sedition punishes speech and as such, is a potential instrument of political
suppression. And in view of the recent spate of cases for seditious offenses in Fiji, this
article sets out to examine the disjuncture between the right of freedom of expression
and seditious offenses, in the context of international and commonwealth freedom of
expression standards as they relate to sedition laws.

INTRODUCTION

Recent cases of sedition in Fiji have drawn public attention and debate to this archaic law that
has been repealed or severely limited in common law jurisdictions. The question of its
relevance in modern democratic societies stems from the fact that the law of sedition
prohibits speech and writing against the government, with a presumption of seditious
intention. 1 It is widely recognised that freedom of expression is one of the most fundamental
freedoms of democratic societies. However, sedition places a limitation that presents a series
of problems in the context of western democracies that tend to float on a continuum between
the prosecution of expressions of strong political dissent and a clear intent to urge violence
against constituted authority. 2 It is important to note that seditious offenses punish speech in
which a criminal offense may be established with no other action by the accused but the
speech, particularly political speech. 3 On occasions, such punitive and repressive measures
by the authorities are “legal” under the law of sedition limiting freedom of expression, 4 but
the legal character of these actions are often at odds with standards outlined in international

1
Crimes Act 2009, s 66(2); State v Niudamu [2017] FJHC 725 (Fiji) at para 12.
2
Geoffrey Palmer Political Speech and Sedition (VUWLRPPC 51/2014 2009) at 12.
3
At 46.
4
See Constitution of the Republic of Fiji, s 17(3).
human rights instruments. It is important therefore to draw the link between excessive
sanctions and the chilling effect on freedom of expression. 5

THE PRINCIPLES of FREEDOM of EXPRESSION

From Milton’s passionate plea in 1644 regarding pre-publication censorship 6 and Mill’s
persuasive classic essay “on Liberty” 7 in the nineteenth century; freedom of expression has
developed into an important right deserving significant protection from state regulation or
suppression in liberal democracies. Freedom of expression is underpinned by four basic
principles: the importance of discovering the truth; the importance of citizen participation in a
democracy; the importance of free speech as an aspect of individual right to self-
development; and free speech as means of check and balances on the power of political
leaders. 8 It is based on a “distrust of the ability of government to make the necessary
distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of
the fallibility of political leaders”. 9 Thus, debate on public issues should be “uninhibited,
robust and wide-open”, even if it includes “vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials”. 10 However, in a recent annual report,11
Freedom House noted that freedom of expression hit an all-time low in 2016 due to threats to
journalists and media outlets by major democracies and authoritarian states. The report states
that only “13 percent of the world’s population enjoys a free press – that is, a media
environment where coverage of political news is robust, the safety of journalists is
guaranteed, state intrusion in media affairs is minimal, and the press is not subject to onerous
legal or economic pressures”. 12 Indeed, Freedom House senior director Sarah Repucci has
expressed concern on the level of media censorship in Fiji. 13
We are particularly concerned this year about a media decree that bans critical
reporting on the government, items that are considered harmful to the national
interest. These kind of general or vague laws can have a strong impact on self-
censorship in a media environment.

5
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression,
Frank La Rue (Human Rights Council, 2012) at para 79.
6
John Milton Areopagitica: A Speech for Liberty of Unlicensed Printing, to the Parliament of England (1644).
He stated that “when complaints are freely heard, deeply considered and speedily reformed, then is the utmost
bound of civil liberty attained that wise man look for.”
7
JS Mill “On Liberty” in Three Essays (paperback ed, OUP, Oxford) at 14–21. The peculiar evil of silencing
the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation;
those who dissent from the opinion, still more than those who hold it. If the opinion is right they are deprived of
the opportunity of exchanging error for truth: If wrong, they lose what is almost as great a benefit, the clearer
perception and livelier impression of truth, produced by its collision with error.
8
Eric Barendt Freedom of Speech (2nd ed, Oxford University Press, Oxford; New York, 2007) at 6.
9
F Schauer Free Speech: A Philosophical Enquiry (Cambridge University Press, Cambridge, 1982) at 86.
10
New York Times v Sullivan, (1964) 376 (United States).
11
Freedom House Annual Freedom of the Press Report 2017 at https://freedomhouse.org/report/freedom-
press/freedom-press-2017.
12
Freedom House, above n 11.
13
“Fiji Singled Out Over Political Interference in Judiciary” (February 2018) Radio New Zealand
<https://www.radionz.co.nz/international/pacific-news/349397/fiji-singled-out-over-political-interference-in-
judiciary>
In any event, prosecution and indeed imprisonment for statements alone should only be
“permitted where it is justifiable to prevent a greater harm than [an] abridgement of freedom
of expression, and then only in proportion to the aim of preventing the harm”. 14
International Standards of Freedom of Expression

Fiji is a member of the United Nations and therefore bound to respect the rights and
guarantees set out in the Universal Declaration of Human Rights (UDHR). Article 19 of the
UHDR states that “everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media regardless of frontiers”. 15 Restrictions on such
freedom as outlined in Article 29 of the UDHR must be “determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a
democratic society”. 16 Similar language is also used in Article 19 of the International
Covenant on Civil and Political Rights (ICCPR). 17 Under these international standards, any
restriction on the right to freedom of expression must be (1) provided by law; (2) for the
purpose of protecting a legitimate public interest; and (3) be necessary to secure that
interest.18
The United Nations Human Rights Committee (UNHRC) responsible for the authoritative
interpretation and enforcement of the ICCPR has commented that “extreme care must be
taken” to ensure that laws are not invoked “to supress or withhold from the public
information of legitimate public interest that does not harm national security or to prosecute
journalists, . . . human rights defenders, or others, for having disseminated such
information”.19 It also noted that freedom of expression “must not be overbroad,” especially
about the “particularly high “value of uninhibited expression” in “circumstances of public
debate in a democratic society concerning figures in the public and political domain”. 20
Furthermore, “the mere fact that forms of expression are considered to be insulting to a public
figure is not sufficient to justify the imposition of penalties” because “all public figures . . .
are legitimately subject to criticism and political opposition”. 21 Lastly, individuals,
journalists, or media outlets should not be penalised “solely on the basis that” they “may be
critical of the government or the political social system espoused by the government”. 22
The UN Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression further commented that “prison terms are both reprehensible and out
of proportion to the harm suffered by the victim” regarding offences such as insulting the

14
Geoffrey Palmer and others Reforming the Law of Sedition (Law Commission, Wellington, NZ, 2007) at 69.
15
United Nations Universal Declaration of Human Rights (2015).
16
United Nations, above n 15.
17
International Covenant on Civil and Political Rights, United Nations (adopted 19 December 1966)
https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.
18
United Nations, above n 15, at Art 19(3).
19
Human Rights Committee General Comments No 34 Article 19: Freedom of Opinion and Expression (2011)
http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
20
At Comment 34.
21
At Comment 38.
22
At Comment 39, 42-43.
head of state or publishing “false” or “alarmist” information. 23 “In all such cases,
imprisonment for the peaceful expression of an opinion constitutes a serious violation of
human rights”. 24
The Fiji Bill of Rights

In recognition of our obligation to adhere to international standard freedom of expression is

provided under the Bill of Rights in the Fiji Constitution: 25
17(1) Every person has the right to freedom of speech, expression, thought, opinion and
publication, which includes:
(a) Freedom to seek, receive and impart information, knowledge and ideas;
(b) Freedom of the press, including print, electronic and other media;
(c) Freedom of imagination and creativity; and
(d) Academic freedom and freedom of scientific research
(2) Freedom of speech, expression, thought, opinion and publication does not protect:
(a) propaganda of war;
(b) incitement to violence or insurrection against this Constitution; or
(c) advocacy of hatred that:
(i) is based on any prohibited ground discrimination listed or
prescribed under s 26;
(ii) constitutes incitement to cause harm
Evidently, this right is not absolute and as enunciated by various UN conventions discussed
above, sub-section 3 provides limitations by law ranging from national security to the
enforcement of media standards. This provision provides the legal mechanism of limiting the
right of freedom of expression as determined by law but “solely for the purpose of securing
due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society”. 26

SEDITION

The law of sedition imposes restrictions on freedom of expression that is within the ambit of
legislative interference with the fundamental right. Despite wide condemnation or criticism,27
sedition, although abolished or strictly limited in some common law jurisdictions has

23
Abid Hussain (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression), Rep on Protection and Promotion of the Right to Freedom of Opinion and Expression
(E/CN4/2000/63 2000).
24
Hussain, above n 23.
25
Constitution of the Republic of Fiji (2013), s 17(1) & (2) (Fiji).
26
United Nations, above n 15.
27
For example see the following Law Commission Reports: Canada Law Commission Crimes Against the State
(1986); David Weisbrot, Brian Opeskin and Les MacCrimmon Fighting words (Australian Law Reform
Commission, Sydney, 2006); Palmer and others, above n 10.
continued to exist in different forms or permutations. Generally, sedition prohibits conduct or
speech deemed to incite discontent or rebellion against state authority. Under common law or
statutory offenses “sedition” involves uttering seditious words, publishing or printing
seditious words, undertaking a seditious enterprise, or engaging in a “seditious conspiracy”.28
The legal scopes of sedition offences are ill-defined and such vagueness in the elements of
seditious intention contribute to the difficulty to demarcate the precise boundaries of sedition
offences. In Boucher v The King, for example, the Supreme Court of Canada stated that
“probably no crime has been left in such vagueness of definition”. 29
Such ambiguity has resulted in using the law of sedition to punish a wide range of behaviour,
from sardonic comment or mere criticism of authority, to the incitement of violent uprising.
The application of the law has fluctuated over time and as Barendt observed: 30
What used to be regarded as a clear case of seditious libel in both England and the
United States is now generally considered to be merely vehement expression of
political opinion, and therefore the classic instance of constitutionally protected
speech.
Historical Overview

The genesis of the law of sedition is linked to the law of treason, which in feudal times
punished acts deemed as a violation of a subject’s allegiance to the lord or monarch. 31 As
such, sedition and treason are conceptually bound because seditious words or conduct can
provoke opposition to the established authority. For this reason, it is often stated that sedition
“frequently precede treason by a short interval”.32 Thus, criminalising the mere criticism of
the government that does not incite violence reflects an archaic view of the relationship
between the state and society.33 This view is based on the notion that the ruler is the superior
of the subject and as such should be protected from criticism or censure likely to diminish his
or her status or authority. 34 In a 1704 case, Holt LCJ explained this view as: 35
If people should not be called to account for possessing the people with an ill opinion
of the government, no government can subsist. For it is very necessary for all
governments that the people should have a good opinion of it. And nothing can be
worse to any government than to endeavour to procure animosities as to the
management of it; this has been always looked upon as a crime and no government
can be safe without it being punished.

28
C Kyer “Sedition Through the Ages: A Note on Legal Terminology” (1979) 37 University of Toronto Faculty
of Law Review 266 at 267.
29
Boucher v R [1951] 2 DLR 369 (Canada) at 382 (Kellock J).
30
Barendt, above n 8, at 163.
31
“Historical Concept of Treason” (1959) 35 Indiana Law Journal 70. The word “sedition” derives from the
Latin sedito, meaning uprising or insurrection. In classical Rome and in medieval England, sedito referred to
offences that, according to modern understanding, would constitute treason (in other words, overt acts of
rebellion or insurrection) The contemporary use of the word - denoting behaviour that may incite discontent or
rebellion against lawfully constituted authority did not appear until the 1960s: see Kyer, “Sedition Through the
Ages: A Note on Legal Terminology” (1979) 37 University of Toronto Faculty of Law Review 266, 266-267.
32
R v Sullivan, (1868) 11 Cox CC44, 45 (United States) (Fitzgerald J).
33
Weisbrot, Opeskin and MacCrimmon, above n 27.
34
Barendt, above n 8, at 163.
35
R v Tutchin, (1704) 14 State Trials (OS) 1096, (United States).
As a distinct offence seditious libel emerged in the early 17th century in the Court of Star
Chamber, 36 in particular, De Libellis Famois in which the defendant was prosecuted for
defaming the deceased Archbishop of Canterbury. 37 The Court held that the mere risk of a
breach of the peace is the basis of criminal libel. The truth of the statements did not provide a
defence since the peace can likely be broken irrespective of the truth or falsity of the
statements.38
The decision should be viewed in the context of the threat to the absolute monarchy from
rising parliamentarians. Similarly, the advent of the printing press provoked a more sustained
effort to control the expression of ideas critical of the church and state; 39 comparable to
current concerns about the rapid spread of information through modern communications
technology.40
Common Law Development

The law on sedition was developed in common law courts after the demise of the absolute
monarchy and the abolition of the Star Chamber but it remained basically the same until the
late 18th century. 41 The focus of the offence was that “any criticism of public men, laws or
institutions was liable to be treated as sedition” 42 and neither the intention of the accused (or
the absence of an intention to incite disaffection or violence) nor the truth of the matter
affected the finding of guilt. 43 The courts continued to affirm that it was the mere tendency
of criticism to undermine the government that made the conduct a criminal offence. 44 During
this period the judge and jury only had to determine whether the defendant uttered, printed or
published the words in question, they did not have to consider whether the words were in fact
“seditious” or whether the defendant intended them to be so. 45
Reform Trend: Modernise or Abolish?

In the first half of the 20th century sedition prosecution in the United Kingdom diminished
and fell into disuse with its last prosecution in 1947. 46 Uncertainty, however, continued to
besot the legal elements of common law sedition offences resulting in contrary positions on
whether a specific intention is required or whether a basic intention objectively discerned will
suffice.47 The apparent contradiction was resolved in Boucher v The King, the Supreme Court

36
M Head “Sedition - Is the Star Chamber Dead?” (1980) 3 Criminal Law Journal 89 The Court of Star
Chamber became renowned for abuse and misuse of power: Civil Liberties Australia, Submission SED 37, 10
April 2006.
37
The Case De Libellis Famosis 77 Eng Rep 250 (K B 1606) (GB|England and Wales).
38
At 250.
39
Law Reform Commission (Ireland) Consultation Paper on the Crime of Libel (1991) at 7; Canada Law
Commission, above n 27, at 6.
40
Weisbrot, Opeskin and MacCrimmon, above n 27, at 50.
41
At 50.
42
Head, above n 36, at 95.
43
Bernand L Shientag Moulders of Legal Thought (Kennikat Press, Port Washington, N Y, 1943) at 167.
44
For example see: R v Tutchin, above n 35.
45
Weisbrot, Opeskin and MacCrimmon, above n 27, at 51; Shientag, above n 43.
46
The defendant was acquitted: R v Caunt, (Unreported, Brikett J, 1947).
47
David Feldman Civil Liberties and Human Rights in England and Wales (2nd ed, Oxford University Press,
Oxford; New York, 2002) at 898. For example, in R v Burns, Cave J instructed the jury that in order to establish
of Canada held that in order to be guilty of a sedition offence a defendant must intend to
incite violence or to create public disturbance or disorder for the purpose of disturbing
constituted authority.48 And in 1991, the Divisional Court in England approved this statement
in Boucher. 49
Overall, Law Reform Commissions in Canada, Ireland, England & Wales, Australia and New
Zealand have recommended the abolition of existing sedition offences on the basis that they
are: 50
 unnecessary in light of more modern criminal offences, such as incitement and other
public order offences;
 undesirable in light of their political nature and history; and
 Inappropriate in modern liberal democracies, where it is accepted that it is a
fundamental right of citizens to criticise and challenge government structures, policies
and processes.
In the USA the Supreme Court has declared that “no court of last resort in this country has
ever held, or even suggested, that prosecutions for libel on the government have any place in
the American system of jurisprudence”. 51 In a commentary on the case, Professor Harry
Kalven stated that “the central meaning of the First Amendment is that seditious libel cannot
be made the subject of government sanctions”. 52 That is, sedition stifles democracy and
political freedom is compromised when the government can use its powers and its courts to
silence its critics.
Canada, on the other hand, was the first Commonwealth country to limit the scope of
sedition.53 The Supreme Court stated that “an intention to bring the administration of justice
into hatred and contempt or exert disaffection against it is not sedition unless there is also an
intention to incite people to violence against it”. 54 Although the offence of sedition remains
in the Canadian Criminal Code, it has not been used since the Boucher decision. 55 Justice
Rand referring to sedition stated that the law came from a time when “we conceived of the
governors of society as superior being, exercising a divine mandate, by whom laws,
institutions, and administrations are given to men to be obeyed, who are in short, beyond
criticism, reflection or censure upon them or what they do”. 56

the requisite mens rea there should a distinct intention, going beyond mere recklessness, to produce
disturbances: R v Burns (1886) 16 Cox CC355, 364. However, in R v Aldred (1909) 22 Cox CC 1, the court
applied an objective test, stating that “every person must be deemed to intend the consequences which would
naturally flow from his conduct”, cited in Law Commission of England and Wales, Working Paper No 72
Second Programme, Item XVIII Codification of the Criminal Law - Treason, Sedition and Allied Offences
(1977), 45.
48
Boucher v R, above n 29.
49
R v Chief Metropolitan Stipendiary, ex parte Choudhury [1991] 1 QB 429 (United Kingdom) at 453.
50
Canada Law Commission, above n 27, at 45; Report on Crime of Libel (1991) at 10; Working Paper No 72
Second Programme, Item XVIII Codification of the Criminal Law - Treason, Sedition and Allied Offences
(1977) at 48; Weisbrot, Opeskin and MacCrimmon, above n 27, at 21; Palmer and others, above n 14, at 88.
51
New York Times v Sullivan, 376 (1964), 275 (United States).
52
“The New York Times Case: A Note on ‘The Central Meaning of the First Ammendament’” [1964] The
Supreme Court Review 191 at 209.
53
Boucher v R, above n 29.
54
Boucher v the King, [1951] SCR 265, (Canada).
55
Candian Criminal Code, RSC, 1985, c.C-46, & 59-60 (Canada).
56
Boucher v the King, above n 54, at 285–286 (Rand J., concurring).
The United Kingdom formally abolished sedition crimes in 2009 with the passage of the
Coroners and Justice Act. 57 Similarly, New Zealand has repealed the law of sedition under
section 211 of the Crimes Act 1961, 58 while Australia amended its sedition laws, renaming
that section of the criminal code “Urging Violence and Advocating Terrorism” but they
require the actor to intentionally urge the use of violence and to intend that the force of
violence will occur. 59 India still has a sedition law in its criminal code, 60 but the Indian
Supreme Court has significantly limited its scope in Kedar Nath v State of Bihar, the Court
held that sedition law applied only to speech or action that incited violence against the
government. 61

THE LAW of SEDITION in FIJI

Fiji like other Commonwealth countries inherited the law of sedition from the colonial era. It
has evolved somewhat through constitutional changes, but the law of sedition has maintained
its core characteristics – the prohibition of any act or speech including publications that are
considered seditious in nature. 62
Section 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.
Seditious intention is outlined in section 66 (1) as:
(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 incite 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:

57
Coroners and Justice Act 2009, s 25 & 73 (United States).
58
Crimes Act 1961, s 211 (New Zealand).
59
Criminal Code of India, Part 51 Section 802.
60
Penal Code of India, Section 124A.
61
Kedar Nath Singh v State of Bihar 1962 AIR 955 (India).
62
Crimes Act 2009, Section 61.
 (a) to show that the Government of Fiji has been mislead 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.
Definition

It is important to note from the outset that the seditious offences in sections 66 and 67
provide a clear example of uncertainty in the Act. For example, the three offences of
speaking seditious words, publishing seditious libel and being a party to a seditious
conspiracy, each require that there be a “seditious intention”, but this phrase is not defined.63
Subsection 66(1) outline what will be presumed to be a seditious intension and subsection
66(1) (a) to (d) what will not be treated as a seditious intention. However, nowhere in the Act
is there a conclusive definition of what is, in fact, a seditious intention. We must turn instead
to the common law to find its meaning, but the common law definition is also vague and
uncertain.64

Analysis of Section 67 (1)

This section prohibits any person to act with seditious intention, as well as words either
spoken or written that are seditious in nature. The question arises whether the physical
elements of the offence comprise ‘conduct’ only, or ‘conduct’ plus one or more
‘circumstances’ or ‘results’. 65 The construction given to this provision by section 13 and 23
of the Crimes Act appears to be the physical elements of sedition comprise conduct only and,
therefore, intention is the fault element. Indeed in State v Mua, the Fiji Court of Appeal
confirmed that seditious intention as stipulated under Section 65 (the corresponding section
in the Crimes Act 66) is an essential element of the offence of sedition. 66 A contrary ruling
was given by Justice Shameem in State v Riogi, that: 67
63
Canada Law Commission, above n 27, at 32.
64
At 32.
65
Weisbrot, Opeskin and MacCrimmon, above n 27, at 178.
66
State v Mua, [1992] FJCA 23 (Fiji) cited in; State v Waqabaca [2017] FJHC 932; HAC3612016 (27 July
2017) (Fiji). The Fiji Court of Appeal confirmed in State v Mua that the seditious intention as stipulated under
Section 65 (the corresponding section in the Crimes Act 66) is an essential element of the offence of sedition.
67
State v Riogi, [2001] FJHC (Fiji) cited in; State v Waqabaca, [2017] FJHC 932; HAC3612016 (27 July 2017)
31.
 However in Fiji, where sedition is defined by statue, the prosecution need not prove
either the incitement to violence or the provoking of disorder or violence. In Fiji, the
ingredients of the offence are that 1) the accused, 2) did an act, 3) with 4) seditious
intent. The statutory defences available are as listed in section 65(1) (a), (b), (c) and
(d) of the Penal Code. The crux of the defence, is that persons who act in order to
lawfully effect change in the government or the Constitution, are not guilty of
sedition.
The apparent contradiction in the above two decisions is indicative of the ambiguity of
whether an objective or subjective test should be applied to establish mens rea in sedition.

SEDITIOUS INTENTION and INTERNATIONAL STANDARDS

As it is, Section 66 of the Crimes Act 2009 is out of step with international norms,
particularly the broad definition of seditious intention. Recent cases, for example, involved a
newspaper article that contained the opinion of the writer, 68 spray painting words in public
places, 69 and signing a declaration purporting to be a unilateral declaration of independence.
Section 67 criminalises any act or speech with seditious intention, which according to section
66 intends “to bring into hatred or contempt or to excite disaffection against the government”,
or “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 “to bring into hatred or
contempt or to incite disaffection against the administration of justice in Fiji”, “to raise
discontent or disaffection amongst the inhabitants of Fiji”, or “to promote feelings of ill-will
and hostility between different classes of the population of Fiji”. In addition, the section
expressly states that the defendant’s intent is irrelevant.70 These aspects render seditious
intention grossly too broad that it fails to meet the three requisite conditions for a restriction
on freedom of expression and thus violates Fiji’s obligation under international law.71
Provided by Law

As discussed above, under the international human rights standard, restrictions on freedom of
expression must be provided by law. Although section 66 and 67 of the Crimes Act provide a
legal limitation to freedom of expression that alone does not satisfy the requirement that the
Acts restrictions must be provided by law. 72 For a restriction to be provided by law, it “must
be formulated with sufficient precision to enable an individual to regulate his or her conduct
accordingly” and “may not confer unfettered discretion for the restriction of freedom of

68
State v Waqabaca, HAC 361 2016 (United States).
69
State v Karunaratne & Bulitavu, [2018] Criminal Case 1618/2011 (Fiji).
70
Crimes Act 2009, s 66(1).
71
United Nations, above n 11, at Art 19. Restrictions on such freedom "must be determined by law solely for
the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society”.
72
American Bar Association Center for Human Rights Mayasia’s Sedition Act Unlawfully Restricts Free
Expression (2015) at 18.
expression and those charged with its execution”. 73 However, the definition of seditious
intention includes vague, subjective, and undefined terms such as “hatred”, “contempt”,
“disaffection”, and “feelings of ill-will and enmity”. 74 As such those charged with sedition
are “unable to ascertain what sorts of expression are properly restricted and what sorts are
not” under the Crimes Act, in violation of international norms. 75
Legitimate Purpose

Restrictions on freedom of expression “must be applied only for those purposes for which
they were prescribed and must be directly related to the specific need on which they are
predicated”.76 About sedition in the Crimes Act, the only potentially legitimate purpose under
international norms are national security and public order. In State v Waqabaca, 77 the charge
related to an article in the Nai Lalakai newspaper with an agreed English translation with a
seditious intent to promote feelings of ill-will and hostility between different classes of the
population of Fiji. As for State v Karunaratne & Bulitavu, 78 the seditious tendency was
derived from charges for the spray painting of words in public places that brings hatred or
contempt or to excite disaffection against the government.
There is no logical connection between promoting feelings of ill-will and hostility between
different classes of the population through a published opinion in Waqabaca, and national
security or public order. Similarly, it is difficult to establish how bringing hatred or contempt
to excite disaffection against the government (through spray painted words) in Karunaratne
could pose any threat to national security or public order. By extension, in State v Niudamu 79
there is also no connection in how bringing into hatred or contempt or to excite disaffection
against the government by signing a document (Uluivuda Declaration) could impact on
national security and public order.
Necessity

The final limb requires that restrictions on freedom of expression “must be necessary” for the
achievement of the legitimate purpose, and “must not be overbroad”. 80 This is particularly
relevant to matters of public debate or political dissent such as those that are at issue in recent
cases. The broad definition of “seditious intention” clearly violates the international human
rights principle that restrictions on freedom of expression must be “necessary” in a
democratic society, proportional to the harm caused, and not overbroad relative to the
objectives of the restriction. “Seditious tendency” is broadly defined to apply to the
government or the administration of justice in Fiji. Nor are the penalties under the Act
proportional to harms caused, as peaceful expressions of opinions by individuals are subject
to arrest without warrants and imprisonment of up to 7 years.

73
United Nations, above n 15, at Art 19 Comment 25.
74
Crimes Act 2009, s 66(1).
75
United Nations, above n 11, at Art 19 Comment 25.
76
At Art 19 Comment 22.
77
State v Waqabaca, above n 68.
78
State v Karunaratne & Bulitavu, [2018] Criminal Case 1618/2011 (Fiji).
79
State v Niudamu, above n 1.
80
United Nations, above n 15, at Art 19 Comment 33-34.
Finally, the crime of sedition is a strict liability offence, as the Act expressly renders the
defendant’s intent irrelevant to liability. In the above cases, for example, they were convicted
under the Act even if their sole intention was to, for instance, show that the government’s
policies are “mistaken” as provided for under the Act. 81 This independently renders the
Crimes Act overbroad and further violates the UNHR principle that the “mere fact that forms
of expression are considered to be insulting to a public figure is not sufficient to justify the
imposition of penalties. 82

CONSTITUTIONALITY of SECTION 67 of the CRIMES ACT 2009

The right of freedom of expression is guaranteed under section 17 of the Constitution. This
right is not absolute because sub-section 3 provides that “[t]o the extent that is necessary, a
law may limit, or may authorise the limitation of, the rights and freedoms mentioned in sub-
section (1) in the interest of . . .” 83 However, sedition, is not mentioned therein (s 17(3), (a) –
(h)) as one of the grounds justifying reasonable restrictions by law. The question then arises
whether Section 67 of the Crimes Act imposes reasonable restriction on the freedom of
expression guaranteed under Section 17 (1) of the Constitution.
To bring sedition under the ambit of permissible legislative interference with the fundamental
right it must be “to the extent necessary” limited by law in the interests of various matters
listed in section 17(3) (a) to (h) of the Constitution. It follows that such restrictions must be
necessary for the purpose prescribed and must be directly related to the specific need to
which they are predicated. 84 Sedition as a crime is in Part 10 of the Crimes Act 2009 under
the heading “Treason and Other Offences against Government Authority”. As such, sedition
and treason are conceptually connected by acts or words that can subvert established
authority and for this reason; it is often held that sedition precedes treason by a short
interval.85 Therefore, the only potentially legitimate purpose under the Constitution for
sedition to impose restrictions on freedom of expression is national security and public order,
“to the extent necessary”. In other words, the imposition of the restriction should be for the
purpose of suppressing incitements for the actual use of violence, to resist the authority of the
government or to affect a revolution.86
However, seditious offences listed under section 67(1) of the Crimes Act 87 are not only
overbroad and ambiguous, but they lack any connection whatsoever to the use of violence to
subvert the authority of government. Furthermore, the same also applies to section 66(1)
which not only outlines what will be presumed as “seditious intention” but also provides a
deeming provision in subsection (2) – that “every person shall be deemed to intend the
consequences which would naturally follow his conduct at the time and under the
circumstances in which he so conduct himself”.88 Clearly, both the seditious offences under s

81
American Bar Association Center for Human Rights, above n 72, at 20–21.
82
United Nations, above n 15, at Art 19 Comment 38.
83
Constitution of the Republic of Fiji, s 17 (3).
84
Human Rights Committee, above n 19, Comments 22.
85
R v Sullivan, above n 32 (Fitzgerald J).
86
R v Sharkey, (1949) 79 CLR 110, 116 (United States).
87
Crimes Act 2009.
88
Above n 92 s 67(2)
67 and presumed seditious intensions in s 66 of the Crimes Act are extremely wide, and all
are in breach of freedom of expression guaranteed in the Constitution.
The Conflict

The apparent conflict between the sections 66 and 67 of the Crimes Act with the right of
freedom of expression is illustrated in two contradictory decisions by the Court of Appeal and
the High Court, as discussed above. In State v Mua, the Fiji Court of Appeal confirmed that
the seditious intention stipulated under section 65 (the corresponding section in the Crimes
Act is section 66) is an essential element of sedition: 89
Before the Court can convict, it must first look to the intent of the person committing
the act as charged. If that amounts to one or more of the intensions in section 65(1)
(i)-(v) the Court must then consider if paragraphs (a) – (d) may apply.
It appears that the Court of Appeal is advocating a subjective test in determining seditious
intention. In State v Riongi, on the other hand, Justice Shameem ruled otherwise and applied
an objective test. 90
Interesting to note that Justice Rajasinghe, in his prelimanry judgement in State v Waqabaca
chose not to “rely on the interpretation guidelines given by State v Mua” simply “as it was
made pursuant to the then Constitution of 1970”, even though there are no material
differences in the relevant provisions. 91
A similar situation existed in India where the Federal court has held that s 124A (the
corresponding section in the Crimes Act is section 66) that words, “deeds or writing
constituted an offence under s 124A only when they had the intention of tendency to disturb
public tranquillity, to create public disturbance, or to promote public disorder”. On the other
hand, “the Privy Council has taken the view that it was not an essential ingredient of the
offence of sedition under s 124A that the words etc. should be intended to or likely to incite
public order”. The Supreme Court of India observed that “while either view can be taken and
supported for good reasons” it remains that “if the view taken of the Privy Council was
accepted it would be unconstitutional”. 92 To address the anomaly the Supreme Court of India
stated:93
It is well settled that if certain provisions of law construed in one way would make
them consistent with the Constitution, and another interpretation would render them
unconstitutional, the Court would lean in favour of the former construction. Keeping
in mind the reasons for the introduction of s 124A and the history of sedition the
section must be so construed as to limit its application to acts involving intention or
tendency to create disorder, or disturbance of law and order; or to incitement to
violence.
89
State v Mua, above n 66.
90
State v Riogi, [2001] FJHC (Fiji); However in Fiji, where sedition is defined by statute, the prosecution need
not prove either incitement to violence, or the provoking of disorder or violence. In Fiji, the ingredients of the
offence are the 1) the accused, 2) did an act, 3) with 4) seditious intent.
91
State v Waqabaca, above n 66, at [34].
92
See Headnote of Kedar Nath Singh v State of Bihar, above n 61.
93
Kedar Nath Singh above n 95
The Supreme Court of India in its interpretation effectively limited the scope or application of
“sedition intention” to render it constitutional.
Hence any acts within the meaning of s 124A which have the effect of subverting the
government by bringing that government into contempt or hatred, or creating
disaffection against it, would be within the penal statute because the feeling of
disloyalty . . . or enmity to it imports the idea of tendency to public disorder by the
use of actual violence or incitement to violence.
Notably, in Fiji’s case, none of the five seditious intentions listed in section 66(1) of the
Crimes Act is in accordance with the common law requirement of an incitement to violence,
or disorder for disturbing lawfully constituted authority. 94 In Australia for example, “exciting
disaffection” has been interpreted to mean expressing disloyalty. 95 Thus, a seditious intention
as defined in section 66 (1) (i)-(v) of the Crimes Act can catch political criticism and
agitation, as recent cases show, and such provisions can have a chilling effect on freedom of
expression, particularly if it is critical of the government. And as they stand they are
unconstitutional in relation to the right of freedom of expression.
Government Established by Law

Lastly, Kedar Nath Singh v State of Bihar made a clear distinction between the government
established by law from those engaged in carrying out the administration of government.
“. . . [in] reference to security of the State and public order, the section, it must be
noted, penalises any written words or signs or visible representations etc., which have
the effect of bringing, or which attempt to bring into hatred or contempt or excites or
attempts to excite disaffection towards the Government established by law has to be
distinguished from the persons for the time being engaged in carrying on the
administration. “Government established by law” is the visible symbol of the State.
In State v Karunaratne & Bulitavu the accused persons were charged and convicted of
sedition for words spray painted in various public places. The words in question were specific
to the Prime Minster in person as opposed to the government established by law – “PM Out”;
PM Murderer”, PM Liar” etc. The words are far from seditious in that they do not refer to the
“government established by law”, let alone subverting the authority of the government, and at
the very least they are merely graffiti or political dissent.

CONCLUSION

The law against treason and other offences relating to subverting government authority are
adequately covered under the Crimes Act 2009, Part 10, sections 64 - which deals with
treason and section 65 – which deals with urging political violence or inciting communal
antagonism. Suffice to say that despite the presence of the law of sedition previous
governments established by law have been effectively subverted, therefore, the law of

94
Boucher v R, above n 29, following such cases as, R v Burns, (1886) 16 Cox CC 355 (United States); R v
Aldred, (1909) 22 Cox CC 1 (United States).
95
Burns v Ransley, (1949) 79 CLR 110, 112 per Rich J (United States).
sedition serves no purpose in as far as undermining the authority of government. There can be
justified limits on freedom of expression to protect national security and public order if it
encourages violence, but the suppression must be only to the extent strictly necessary to
prevent greater harm. As it is, the wide scopes of seditious offences encompass conducts that
do not incite violence and it is questionable whether they justify interference with freedom of
expression. They create the potential for abuse and if sedition remains on the statute book
governments will be tempted to use them improperly, particularly if the opinion expressed is
critical of the government. In conclusion, sedition is an “anachronistic and an unjustified
interference with freedom of expression” 96 that has no place in a modern democracy and
rightly belongs in the dustbin of history.

96
Palmer and others, above n 14, at 49.
 BIBLIOGRAHY

PRIMARY LEGAL SOURCES

PacLII and cases from other legal information institutes

Boucher v R, [1951] 2 DLR 369 (Canada).
Boucher v the King, [1951] SCR 265 (Canada).
Brandenburg v Ohio, SC 395 US 444 (1969) (United States).
Burns v Ransley, (1949) 79 CLR 110, 112 (Australia).
Coleman v Power, (2004) 220 CLR 1 (Australia).
Dissanayake v. Sri Lanka, U.N. Doc. A/CCPR/C/93/D/1373/2005 (July 22, 2008) (United
States).
Kedar Nath Singh v State of Bihar, 1962 AIR 955 (India).
Lange v Australian Broadcasting Corporation, (1997) 189 CLR 520 (Australia).
New York Times v Sullivan, 376(1964) (United States).
R v Aldred, (1909) 22 Cox CC 1 (United States).
R v Burns, (1886) 16 Cox CC 355 (United States).
R v Caunt, (Unreported, Brikett J, 1947).
R v Chief Metropolitan Stipendiary, ex parte Choudhury, [1991] 1 QB 429.
R v Cooper, (1961) 105 CLR 177 (Australia).
R v Selwyn, (8 June 2006) CRI: 2005-004, District Court Auckland.
R v Sharkey, (1949) 79 CLR 110, 116 (United States).
R v Sullivan, (1868) 11 Cox CC44, 45 (United States).
R v Tutchin, (1704) 14 State Trials (OS) 1096, (United States).
State v Karunaratne & Bulitavu, [2018] Criminal Case 1618/2011 (Fiji).
State v Mua, [1992] FJCA 23 (Fiji).
State v Niudamu, [2017] FJHC 725 (Fiji).
State v Riogi, [2001] FJHC (Fiji).
State v Waqabaca, [2017] FJHC 932; HAC361.2016 (27 July 2017) (Fiji).
State v Waqabaca, HAC 361 2016 (Fiji).
The Case De Libellis Famosis, 77 Eng. Rep 250 (K. B. 1606).

Statutes
Canadian Criminal Code (Canada).
Crimes Act 2009 (Fiji).
Penal Code of India (India).

Constitution

Constitution of the Republic of Fiji (Fiji).

Constitution of India

International Treaties and Declarations

United Nations Universal Declaration of Human Rights (2015).

Abid Hussain Report of the Special Rapporteur on the Protection and Promotion of the Right
to Freedom of Opinion and Expression (E/CN.4/1999/64 1999).
Abid Hussain Civil and Political Rights Including the Question for Freedom of Expression
(E/CN.4/2000/63 2000).
Human Rights Committee General Comments No. 34 Article 19: Freedom of Opinion and
Expression (2011).
Inter-American Commission on Human Rights, Annual Report 1994 Report on the
Compatibility of “Desacato” Laws with the American Convention on Human Rights.
Twentieth Session, Agenda Item 3 Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Expression, Frank La Rue (Human Rights Council,
2012).
United Nations International Covenant on Civil and Political Rights.
African Charter on Human and Peoples Rights (1981).
American Convention on Human Rights.
European Convention on Human Rights.

Law Commission Reports

Australian Law Commission Fighting words (Australian Law Reform Commission, Sydney,
2006).
New Zealand Law Commission Reforming the Law of Sedition (Law Commission,
Wellington, N.Z, 2007).
Law Reform Commission (Ireland) Report on Crime of Libel (1991).
Working Paper, No 72 Second Programme, Item XVIII Codification of the Criminal Law -
Treason, Sedition and Allied Offences (1977).
Canada Law Commission Crimes Against the State (1986).

SECONDARY SOURCES

Books

Eric Barendt Freedom of Speech (2nd ed, Oxford University Press, Oxford; New York,
2007).
David Feldman Civil Liberties and Human Rights in England and Wales (2nd ed, Oxford
University Press, Oxford; New York, 2002).
JS Mills On Liberty (Longmans, Green & Co, London, 1974).
F Schauer Free Speech: A Philosophical Enquiry (Cambridge University Press, Cambridge,
1982).
Bernand L Shientag Moulders of Legal Thought (Kennikat Press, Port Washington, N. Y.,
1943).
James Stephen A Digest of the Criminal Law (4th ed, Macmillan and Co., London, 1887).
James T Stephen A History of the Criminal Law of England (1883) vol 2.
Journals

M Head “Sedition - Is the Star Chamber Dead?” (1980) 3 Criminal Law Journal 89.
Harry Jr Kalven “The New York Times Case: A Note on ‘The Central Meaning of the First
Amendment’” [1964] The Supreme Court Review 191.
C Kyer “Sedition Through the Ages: A Note on Legal Terminology” (1979) 37 University of
Toronto Faculty of Law Review 266.
“Historical Concept of Treason” (1959) 35 Indiana Law Journal 70.
American Bar Association Centre for Human Rights Malaysia’s Sedition Act Unlawfully
Restricts Free Expression (2015).
Geoffrey Palmer Political Speech and Sedition (VUWLRPPC 51/2014 2009).
John Milton Areopagitica: A Speech for Liberty of Unlicensed Printing, to the Parliament of
England. (1644).
M Head “Sedition - Is the Star Chamber Dead?” (1980) 3 Criminal Law Journal 89.
Harry Jr Kalven “The New York Times Case: A Note on ‘The Central Meaning of the First
Amendment’” [1964] The Supreme Court Review 191.
C Kyer “Sedition Through the Ages: A Note on Legal Terminology” (1979) 37 University of
Toronto Faculty of Law Review 266.
“Historical Concept of Treason” (1959) 35 Indiana Law Journal 70.
American Bar Association Centre for Human Rights Malaysia’s Sedition Act Unlawfully
Restricts Free Expression (2015).
 Geoffrey Palmer Political Speech and Sedition (VUWLRPPC 51/2014 2009).
John Milton Areopagitica: A Speech for Liberty of Unlicensed Printing, to the Parliament of
England. (1644).

Reports

Freedom House Annual Freedom of the Press Report 2017.

Twentieth Session, Agenda Item 3 Report of the Special Rapporteur on the Promotion and
Protection of the Right to Freedom of Expression, Frank La Rue (Human Rights Council,
2012).

Websites

Expert Participation “Coroners and Justice Act 2009”

<https://www.legislation.gov.uk/ukpga/2009/25/section/73>.
“Fiji Singled Out Over Political Interference in Judiciary” (February 2018) Radio New
Zealand <https://www.radionz.co.nz/international/pacific-news/349397/fiji-singled-out-over-
political-interference-in-judiciary>.
“Boucher v. the King - SCC Cases (Lexum)” <https://scc-csc.lexum.com/scc-csc/scc-
csc/en/item/2725/index.do>.
“Fiji urged to abandon outdated sedition laws - IFEX”
<https://www.ifex.org/fiji/2017/03/08/outdated-sedition-laws/>.
“Indian Sedition Law: What is it and what does it say | IndiaToday”
<https://www.indiatoday.in/education-today/gk-current-affairs/story/indian-sedition-law-
309015-2016-02-16>.
“Opinion | Free Speech Ends Where Sedition Begins - The New York Times”
<https://www.nytimes.com/2016/03/05/opinion/free-speech-ends-where-sedition-
begins.html>.

View publication stats