Part 2: Determination On Complaint Against Fiji Broadcasting Corporation

Continued…. Ashwin Raj is the Media Industry Development Authority’s (MIDA) chairperson. This is Part 2 of 2 of his statement. Part 1 was published in yesterday’s edition. continued… fundamental building
04 Dec 2016 12:18
Part 2: Determination On Complaint Against Fiji Broadcasting Corporation
Ashiwn Raj

Ashwin Raj is the Media Industry Development Authority’s (MIDA) chairperson. This is Part 2 of 2 of his statement. Part 1 was published in yesterday’s edition.


fundamental building block of a democratic society.

Secondly, to encourage a rational, robust and responsible discussion on race that does not descend into racial vilification.

This is critical given the fact that Fiji is emerging out of the detritus of institutionalised racism and given our political history, race remains a highly sensitive issue that is susceptible to politicisation.

The Authority, therefore, considered the following threshold for incitement:


Content and form of speech:

An assessment of the extent to which the speech was direct and provocative;

– The form in which the statements were constructed and disseminated;

– The style and tone in which it was delivered; and

– The nature of arguments made and whether there was any balance in these arguments



– A consideration of the prevailing social, economic and political context in which the speech act was made.


Position and status of the speaker:

– The position or status of the speaker and or the organisation; and

– Influence of the speaker or the organisation in forming public opinion that promotes intercultural understanding or has the potential to create a negative climate that can have the effect of incriminating communities and individuals.



– The limitations set out under Article 20 of the ICCPR on freedom of expression on the grounds of propaganda for war as well as advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, must as a first principle comply with Article 19 of the Covenant.

Article 19 provides that everyone has the right to hold opinion and freedom of expression, freedom to seek, receive and impart information and ideas, respect of the rights or reputations of others and the protection of national security, public order, public health or morals.

The limitations to these rights set out in Article 20, therefore, cannot be arbitrarily invoked but require intent – an explicit advocacy and incitement to hatred – rather than mere negligence or recklessness as sufficient grounds to deem a speech act to be criminally prohibited.


Extent or reach of the speech:

– An assessment of the public nature of the speech by examining whether the statements were widely accessible to the public;

– Nature and size of the audience;

– Means through which the speech was transmitted or disseminated;

– The frequency and the extent of the communication;

– Whether there is an entrenched pattern of hostility towards particular ethnic or racial groups; and

– Whether the audience had the means to act on the incitement.


Likelihood, including the imminence of incitement:

– Whether there is a reasonable probability that the speech act would succeed in inciting actual violence against targeted communities.

The nature of statements made in the programme lacked balance and substantiation.

Given the standing and ability to influence a wide spectrum of society as a public figure, responsibility lies greater on the journalist particularly given the sensitive nature of the subject matter.

The tone, however, was not provocative and the language was not inflammatory. There was no overt call to violence.

A close examination of the programme shows that there is no pattern of hostility towards any community.

On the contrary, the programme has had a strong multicultural impetus in promoting values of pluralism, racial harmony and diversity through language.

The journalist has offered a public apology in all of the three major languages admitting negligence on his part as the producer and presenter of the programme.

The broadcaster has also taken several remedial steps: the FBC launched an internal investigation, issued a public apology, terminated the contract of the producer and presenter of the programme and strengthened the quality control of the programme.

Hate speech stifles the possibility of equal participation with dignity and equality in a pluralistic democracy.

The jurisprudence on hate speech, however, is equally instructive in that it draws a careful distinction between expression that is repugnant and offensive from that which is abhorrent.

In the Canadian case Saskatchewan v. Whatcott, the Court observed that the idea of a morally repugnant expression which causes an affront, ridicules or belittles is an insufficient ground to consign a speech act as hate speech.

Rather, the determination must be based on the effect of the expression in its ability to expose groups to hatred and incite other members of society.

Historically and politically, race has served as an important signifier for the mobilisation of rights and privileges in Fiji that easily descends into racism through the privileging and institutionalisation of one racial category as preponderant over others.

Despite the salutary efforts to erase the ignominy of institutionalised racism from our public memory through legal reforms as evidenced in our constitutional provisions on common and equal citizenry, the intuition to race as a dominant structure of apprehension still persists and so does the cartography of racial anxiety.

How we evacuate race from the vicissitudes of racism and speak openly about human differences with civility is important.

This is particularly important because we are not moving towards a non-racial political future premised upon a pretention that race does not exist.

The Preamble of the Fijian Constitution after all begins with the recognition of our diversity.

The Constitution equally challenges us to think about a post-racial future where differences can co-exist with dignity and equality.

It is equally important, therefore, that we condemn all acts of racism and racist hate speeches and not selectively the ones that suit our agenda.

Fiji’s long history of racial intolerance, institutionalised racism and abuse of special affirmative action measures has taught us that the media plays an instrumental role in either perpetuating racism or promoting racial understanding and cohesiveness.

Discrimination is nourished on negative stereotyping. Negative stereotyping over a sustained period of time contributes to a culture of racism.

Discrimination is premised on a distinction, exclusion or preference based on prohibited grounds of discrimination such as race, gender, ethnicity, religion or belief, disability, age, sexual orientation, gender identity and expression, nationality, primary language among other markers of difference, as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) instructs us, has the effect of impairing ones capacity to enjoy human rights and fundamental freedoms on an equal footing in the political, economic, social and cultural spheres of public life.

The media in this context has a positive obligation to promote values of equality, diversity and pluralism.

In light of the principles enunciated in the jurisprudence on freedom of expression in the context of the complaint, the programme fails to meet the threshold for inciting communal discord.

The matter, therefore, will not be referred to the Media Tribunal.


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