Fiji constitution would trump any decree in court - Lawyer
Fiji telecommunications attorney says constitution and international convenants on freedom of expression will trump any decree if brought to trial.
A Fiji telecommunications lawyer says the public will have constitutional redress through the courts if their phone or internet is monitored in the lead-up to the election.
Section 63 of the Electoral Decree says any person is prohibited from communicating political messages by telephone, internet, email, social media or other electronic means 48 hours before polling opens.
Violating the decree can result in a 27,000 US dollar fine, or 10 years in jail.
But Salanieta Tamanikaiwaimaro of IT company, Pasifika Nexus, says the constitution and international convenants on freedom of expression will triumph over any decree in court.
SALANIETA TAMANIKAIWAIMARO: Article 19 of the International Covenant on Civil and Political Rights expressly provides for freedom of expression, and limitations on freedom of expression are clearly provided under that article. In terms of section 63 of the Electoral Decree where people have been prohibited from communicating political messages by internet and social media and other electronic means, I would say that the people of Fiji still have constitutional redress through the court if they would like to have an alternative interpretation of that particular provision. They can do that by way of constitutional redress or by way of a judicial review.
MARY BAINES: So do you think the Fiji government or police actually have the capacity to proactively enforce this provision?
ST: Again, the police, as an enforcer, can only enforce if complaints have been brought to them. And again there's a back-hand process to that whereby somebody's lodging a complaint based on evidence. And that evidence can only be extracted from either individuals or persons themselves, or by internet service providers, or any network providers or telcos. And there are already express provisions within Fiji laws by way of extraction of that evidence. And there's due process involved. It's very ambiguous and open to the courts to decide, and as I said before Article 19 of ICCPR clearly expresses limitations to freedom of expression and on what grounds. Firstly I do not think this particular provision meets article 19 of the ICCPR.
MB: Does the Fiji government even have the technological capacity to monitor internet or phones? Is there that kind of surveillance in place?
ST: Surveillance capabilities have long hit the shelf, it's not limited to governments, it's available to anyone on the internet who knows how and where to decode encrypted messages and that sort of thing. But again, in terms of culpability, admissibility of that particular evidence in the court, that's quite another matter. So for extraction to be acceptable it has to be done in a certain way. In an increasingly globalised world we are seeing all sorts of traps to freedom of expression, not limited to Fiji. We've seen Twitter and YouTube blocked in Turkey, we've seen that already happen in Pakistan. So these are trends happening all across the world, and it's also happening in democratic countries. But the point is we need to, the community needs to, reiterate that the International Convenant on Civil and Political Rights, particularly those pertaining to freedom of expression. Criteria and limitations that have been expressly provided, we have to stick to those, and pursue absolute freedom of expression.
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