IPS-English MEDIA-FIJI: Court Strikes Blow for Right to Information
 
Date: Tue, 06 Nov 2007 15:48:56 -0800

 
Shailendra Singh

SUVA, Nov 6  (IPS)  - Civil society organisations in Fiji have welcomed
a High Court decision giving the media the right to publish a confidential
audit report commissioned by the state pension fund. 


The Fiji National Provident Fund (FNPF) had filed an application
seeking to bar Fiji Television Ltd from airing the findings of a report
by Ernest and Young, the Sydney-based chartered accountants. A statutory
body with 330,000 members, FNPF holds around 3.2 billion Fijian dollars
(two billion US dollars) in workers' savings. As Fiji's largest financial
institution, it holds 60 percent of the nation's gross domestic product,
with 40 percent of the country's financial system under its control.

In knocking back the application last month, Justice Roger Coventry
agreed with the plaintiffs that the findings of the audit were a matter
of public interest. He added that the FNPF failed to prove that the
report was confidential.
In a further ruling on Thursday, he ordered the FNPF to pay FJD 13,500
(8,812 dollars) in costs to the broadcaster.

Justice Coventry said that at heart of the issue was the fact that
the FNPF board was responsible for millions upon millions of dollars
belonging to ordinary people.
He said the board could not seek to prevent the public from knowing
the contents of a report concerning the conduct of its affairs when
it involved the investment of millions of dollars of their money.

Observers say the ruling sets a precedent in giving the media the
green light to publish any government or statutory body information
no matter how it is obtained. This is as long it can be proven that
the information was in the public interest as per the constitution.

The Fiji Media Watch (FMW) and the Citizens Constitutional Forum
(CCF), both well-known civil society groups, say the ruling not only
upholds media freedom, but also underscores the need for the swift
enactment of a Freedom of Information Law.

The patron of the FMW, Father Larry Hannan, said the judgment was
significant in that it upheld the fundamental human right to information.
He said the audit would have been a waste of time and public resources
had the people been denied the freedom to analyse it and raise comments.
 

”People nowadays cannot do without information that is full, consistent,
accurate and true,” said Father Hannan. ”Only if fully informed can
a person assume a responsible and active role in society and be part
of its economic, political and cultural life.” 

Father Hannan also called for the tabling of the FOI bill in Parliament
once parliamentary democracy is restored in Fiji. ”Freedom of information
legislation when fully enacted will enable public bodies to put out
all information voluntarily or upon request so as to keep people informed
on what they are doing and why they are doing it,” he said. ”This
is a fundamental to people's and taxpayers' right to take an informed
position and participate effectively on the functioning of public
bodies.”  

Executive director of the CCF  Akuila Yabaki said they were happy
with the way the courts firmly stood by the Constitution despite the
fact that politicians had not made it a priority to pass the FOI bill
into law. 

”We consider this to be an act deliberate disobedience by past governments,”
said Yabaki. ”What is significant is that although the constitutional
provision has not been implemented by successive governments since
1997, the judge has nevertheless applied the spirit of the Constitution.''

”Once the FOI bill is passed, bodies like FNPF would be compelled
towards disclosure of such vital information in recognition of the
right to know on the part of the public.” Under the FNPF act, all
employers make compulsory monthly contributions to the fund equitable
to 16 percent of their monthly wages. Half of this comes from the
individual employees by way of compulsory statutory deductions from
their wages.

Over the years, media reports of alleged mismanagement at the FNPF
had led to some public anxiety. Weeks after ousting the Laisenia Qarase
government, through a military coup in December last year, the head
of the Fiji Military Forces, Frank Bainimarama, announced that a new
board would be appointed to investigate alleged failure and improper
use of the fund.

Bainimarama said the fund was a ‘national treasurer' that belonged
to the workers of the nation. He said that it must be protected and
preserved in such a manner that it does not meet the same fate as
the failures and collapse of other financial institutions. In January
this year, the fund's CEO and deputy CEO were sent on leave. Their
appointments were later terminated.

Ernest and Young, engaged to conduct an enquiry into the fund in
March,  submitted its report in July. Fiji TV aired excerpts of the
report on Sep. 19, 20 and 21 before a temporary injunction issued
by the High Court  put a stop to the reports.

In its submission, Fiji TV said that the board was a public statutory
body that handled massive amounts of money belonging to the workers
of Fiji.
It said that the way the board operated an invested workers' money
was of the ”greatest public interest”.

To suppress the contents of the reports, said Fiji TV, would be to
stifle the constitutional rights of freedom of expression, and run
counter to the constitutional principals of public interest and in
the accountability of the government and its agents. Fiji TV added
that was not a case where the court could err on the side of caution
by continuing the injunction and then, if the plaintiff was successful,
permitting publication.

This was because news was a ”perishable commodity” and its effect
was lost if there was a delay, particularly in the absence of any
other injunctions restraining other news outlets. In his judgment,
Justice Coventry cited the Fiji Constitution's  ‘Bill of Rights',
which exhorts the courts to ”promote the values that underlie a democratic
society”.

He drew attention to another section in Chapter Four entitled, ”Freedom
of Information” which states that as soon as practicable, parliament
should enact a law that gives the public the right of access to official
documents of the government and its agencies.

”It is now nearly 10 years since the Constitution came into being,”
said Justice Coventry. ”Parliament has not yet enacted a law giving
members of the public rights to access official documents of the government
and its agencies. ”In my judgment, this is a grave shortcoming and
should be rectified at the earliest opportunity.”

Justice Coventry also cited a ruling by Justice Jiten Singh earlier
this year in which he upheld Fiji TV's right to publish a draft audit
report accusing a senior employee of the Fiji Islands Revenue and
Customs Authority of committing fraud.

Justice Coventry said he agreed with Justice Singh that, ”the freedom
of the press assumes greater significance in matter of public interest
at a time when there is no parliament and no usual ministerial accountability
in the Fiji”.

The Pacific Centre for Public Integrity's executive director, Angie
Heffernan, while welcoming the judgment, said it was not for the interim
government to enact a Freedom of Information Law.

”We support the development of an FOI law, but this interim military
regime does not have a constitutional mandate to legislate laws, and
important laws such as FOI will have to wait until an elected government
is in place,” she said.

On the judgment as a whole, she said: ”This ruling is in line with
international best practices of good governments, which recognises
that the public right to access information is key to promotion of
transparent, accountable and responsible governments, and most importantly
it encourages greater citizenry participation.”




(END/IPS/AP/IP/DV/CU/IC/PF/HD/IF/CS/SS/RDR/07) 




 
= 11060817 ORP005
NNNN