Defence Stance A ‘Strange Vision’
Assistant Director of Public Prosecutions Lee Burney submitted in the High Court yesterday that the stance adopted by the defence that The Fiji Times executives did not have any contractual duties was a “strange vision”. Mr Burney likened the position to the abandoned ship the Mary Celeste, an American merchant two-masted sailing vessel which was discovered adrift and deserted in the Atlantic Ocean on December 5, 1872. Mr Burney termed it the “Sloppy Shoulder Defence” that while the accused persons admitted that the letter was published they, however, contended that they had no contractual duty.
He asked: “if the Editor-in-Chief has no duty to ensure editorial standards than who has? If the publisher does not publish then who does?”
He said the contractual duty was in the job titles of the accused persons. Responding to the submission by the second accused’s lawyer, Devanesh Sharma, Mr Burney said just because a statement was factually correct did not mean that it is not seditious.
He said that was not the test of sedition. He said the prosecution did not have to prove that the accused men had actual knowledge.
“Ignorance of the law cannot be defence of criminal law,” Mr Burney said.
He said it was a ludicrous position if an accused claimed that they had no knowledge, thus putting them in the clear.
Mr Burney also stated that the defence did not state that the letter was a verbatim reproduction because it did not read like a letter to the Attorney-General.
He said the disturbance to the tranquility of the State was alluded to by the Permanent Secretary of the Ministry of iTaukei Affairs Naipote Katonitabua and one could get a sense that the letter created a concern during his visits to iTaukei communities. He said under Section 45 the Court could convict Nai Lalakai editor Anare Ravula and The Fiji Times Editor-in-Chief Wesley as principal offenders.
The section states that, “a person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty”. Mr Burney said Mr Corlett’s submission was based on a couple of false premises. He said The Fiji Times publisher Hank Arts was charged with publishing the letter and as per his contract he was the person responsible.
Mr Burney said Arts was the, “puppet master” and he was given that responsibility by the company’s Board of Directors and it was prima facie evidence that he was the publisher.
He said whether Ravula, Wesley or Arts were asleep at the wheel or not the “poisonous narrative” found its way to iTaukei communities.
Mr Burney submitted that there was a strong circumstantial case against the accused men.
He posed the question as to why the letter was circulated in Fiji if it did not have anything to do with Muslims in Fiji, adding that the defence was trying to pass off the letter as some sort of comment on world affairs. Mr Burney said the readership was predominantly iTaukei Christians, adding that the target audience was important to note when taking into consideration the issue of “tendency”.
He said what column writer Josaia Waqabaca did was draw a parallel between what Muslims did in Bangladesh and a scaremongering prediction for Fiji.
“It’s not even coded and there is nothing subtle about that,” Mr Burney said.
He said it was open to the fact finders that the act done by Waqabaca objectively had the tendency to promote feelings of ill-will and hostility between different classes of the population of Fiji, namely between nonMuslims and Muslims, thereby disturbing the tranquility of the State. He said any reasonable person reading the letter could not fail to recognise this. Mr Burney further mentioned that it was irrelevant that Arts did not speak the
iTaukei language in the context that he worked alongside people who did.
“The more you get paid the more responsibility you have,” he said.
Josaia Waqabaca – No Case To Answer
Counsel for first accused Nai Lalakai column writer Waqabaca submitted in the High Court yesterday that the simple act of submitting an article for publication did not render the article or Waqabaca’s action as a seditious act.
Lawyer Aman Ravindra-Singh made oral submissions for a No Case To Answer, seeking his client’s acquittal by Justice Thushara Rajasinghe.
Mr Ravindra-Singh submitted that the article was sent to the Attorney-General of Fiji as a letter of protest and was addressing grievances suffered by the indigenous people of Fiji.
He said the person to whom the letter was addressed did not lodge a complaint.
He said the letter could not be accepted as a legitimate form of communication expressing concerns regarding indigenous land and other issues and on the other hand be treated as a seditious act with a seditious intention when it was published in the
iTaukei newspaper.
Mr Ravindra-Singh said it was contradictory and there was no evidence to support element three of the offence which is, “did a seditious act, submitted an article written by him under the heading “Sa Notisitaki ko Vunilawa” (translated as “Notice to the Attorney-General”) for publication in the Nai
Lalakai newspaper.”
Further, he submitted that there was no evidence to support element four of the offence that Waqabaca had a seditious intention to promote feelings of ill-will and hostility between different classes of the population of Fiji and that was between non-Muslims and Muslims.
Highlighting the evidence of the first prosecution witness, Mr Katonitabua, Mr Ravindra-Singh said the witness gave no evidence to support elements three and four.
He said Mr Katonitabua’s evidence was hearsay evidence, which he picked from his department.
Waqabaca’s lawyer said it was opinion evidence for which Mr Katonitabua was neither qualified nor classed as a person who had any idea about what sedition was about or that he had in-depth knowledge about what constitutes sedition.
“This witness further confirmed that there was nothing hateful in the article against Muslims in Fiji,” Mr Ravindra-Singh said. “This witness further confirmed that the reference to Muslims was regarding Muslims in Bangladesh and that he did not have any idea about what occurred in Bangladesh.”
Mr Ravindra-Singh also mentioned the evidence of investigation officer Inspector Esili Nadolo.
He said Inspector Nadolo did not give any evidence to support elements three and four of sedition.
He said the only thing that Inspector Nadolo confirmed was that he interviewed Waqabaca and that the column writer was co-operative.
“This witness further confirmed that there was nothing hateful in the article against Muslims in Fiji,” he said.
“This witness confirmed that the article referred to Muslim actions in Bangladesh and not in Fiji.”
He said Inspector Nadolo confirmed that there were no complaints of ill-will and hostility between different classes of the population in Fiji namely between non-Muslims and Muslims.
“The prosecution surely needed better evidence to charge the first accused with a serious charge such as the current charge of sedition,” Mr Ravindra-Singh.
He said the letter did not specifically attack Muslims in Fiji or was directed to them.