Court awards penalties, not the SOE or EC: Saneem

Fiji’s Supervisor of Elections (SOE) Mohammed Saneem has refuted a news article that suggested that along with the Electoral Commission they have powers to fine and jail persons publishing materials that undermine public confidence in their duties and functions.

That is incorrect. That is [neither] the role of the SOE nor the Electoral Commission…That is the role of the court, Saneem said after reading out section 144A of the Proposed Bill 50 of 2020 during a presser in Suva today.

Bills 50, 51 and 52 of 2020 which are currently being reviewed by the Fijian Parliamentary Standing Committee on Justice, Law and Human Rights collectively outlines 56 proposed changes to the country’s Electoral Act 2014, Registration of Voters Act 2012 and the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013 respectively.

Saneem said penalties outlined in Section 144A of Bill 50 – of a fine up to $50,000 or imprisonment for a term not exceeding five years or both – will only apply if the person or political party does not remove or correct the information when directed to do so, and maintains the same to be true even after having exhausted the review mechanism provided under the same section.

“It must be noted that the provision must be read in its entirety to be able to grasp the true interpretation of the same. This proposed provision makes it an offence for a person or political party to publish information in or outside of Fiji and is accessible in Fiji knowing or having reasons to believe that the information is false and could likely influence the outcome of an election or diminish public confidence in the performance of any duty or function of the SoE and EC,” Saneem said.

“In such situation, the SoE could rectify the issue by directing the person, including a service provider or political party to remove or correct the statement or information that was published. The person directed must action with immediate effect. If the person or political party does not agree with the SoE’s decision they could appeal to the EC who would review the decision of the SoE within 24 hours.

“Now, section 144A (4) makes it an offence for a person or political party to be publishing information that is false. If the SoE has reasonable belief that the information is false and could diminish his function as well as the function of the EC, the SoE could either rectify the issue right there and then or under section 18 of the Electoral Act, 2014 lodge a complaint to FICAC who would conduct its own investigation into the matter.”

Electoral Act, 2014

“Section 18 – If the EC or SoE becomes aware at any time of the probable commission of an election related criminal offence including criminal offence prescribed in this Act, it must immediately report the matter to the Fiji Independent Commission Against Corruption [“FICAC”] and all election officials must fully cooperate in the investigation of any election related offence.” 

“If the person or political party is charged the Court would rely on section 144A (4) to determine the suitable penalty for the accused.  The explanatory note of this provision clearly indicates that section 144A (4) is there to allow the “Court from awarding penalties best suited to the circumstances of the offending”. “

This does show that section 144A (4) is meant for the Court and does not provide powers to the SoE or EC as suggested, Saneem said.

Last week, the parliamentary committee carried out another round of public consultations on the bill, after two earlier rounds of the same during which it received submissions from individuals and groups including five of seven registered political parties as well as submissions from the EC, Fijian Elections Office (FEO), as well as Dialogue Fiji.

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