Friday, April 03, 2009

Council dismisses Fiji judges’ complaint

Council dismisses Fiji judges’ complaint - 03/04/2009

The Australian Press Council has dismissed the main burden of a complaint brought by Fiji High Court judge Jocelynne Scutt against The Australian newspaper.On March 10, 2008, the newspaper ran an article ‘Judge criticised over Fiji posting’ on Justice Scutt’s acceptance in November 2007 of her judicial appointment.It noted that Justice Scutt was among High Court judges used to fill gaps in the Court of Appeal in the wake of the resignation of six expatriate judges. It quoted comments critical of Justice Scutt made by the Fiji Women's Rights Movement and two prominent barristers. Additionally, it quoted a spokeswoman for the Australian Foreign Minister as saying the state of the Fijian judiciary was a matter of concern, as evidenced by the fact most expatriate judges, including a number of Australian nationals, had resigned or had refused to renew their contracts "and are urging the Fijian interim government to return Fiji to democracy and the rule of law". In a later edition on March 15, 2008, the newspaper featured comments from Angie Heffernan, executive director of the Pacific Centre for Public Integrity, a body described in the article as "Fiji's democracy lobby". Heffernan was reported as saying that acceptance by members of the Australian legal fraternity of "illegal appointments in the Fiji judiciary" was "deeply unfortunate and ethically unconscionable". Justice Scutt however complained that the articles were "highly critical", "highly defamatory" and "damaging", and sought a retraction of the published materials and the publication by the newspaper of an apology. A key point made by Justice Scutt was that the newspaper was wrong in asserting that she had accepted a judicial appointment "from the military-backed regime". She pointed out that such an assertion is inaccurate because her appointment was made by Fiji's President Ratu Josefa Iloilo. She asserts that judicial appointments in Fiji "are not political" as they are made by the President on the recommendations of the Judicial Services Commission. The newspaper has however described this assertion as "disingenuous" and said various members of the Judicial Services Commission had been replaced by the military regime since the coup. The newspaper today said it justifies its focus on Justice Scutt on the ground that the other expatriate appointees lack the public profile of Justice Scutt, who is an internationally known feminist and a former anti-discrimination commissioner in Tasmania. “There is no doubting that Justice Scutt is a public figure, and that her acceptance of a judicial appointment in a country under the control of a military regime is a newsworthy story of public interest,” the newspaper says. Justice Scutt said also that she found it surprising the articles were written and published at all, given that the matter of judicial appointment in Fiji is currently sub-judice. The Australian further reported that in the Council's view, this provides no effective or convincing justification for her complaint. The Council, it said, is critical of what appears to be inadequate attempts by the newspaper to obtain comments from Justice Scutt before publishing the first article. “But when an adequate opportunity was provided to her to address questions about her acceptance of the judicial appointment, she declined to comment.” “This refusal by Justice Scutt to provide comments based on her belief that, as a judge she was "not able to speak on the matter", did not preclude the newspaper from continuing to report and comment on her appointment.” The Council however concluded that the newspaper went too far in statements such as that the complainant had "links with Fiji's military rulers" and "is involved with the military regime", statements that incorrectly implied collaboration with and/or personal connections with members of the military regime. The newspaper offered no evidence to justify these statements.

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