In a judgment delivered on Tuesday 22 November 2022, the High Court of Fiji held that Mr Naidu had scandalised the Court when he pointed out on Facebook a spelling error in a court judgment. He is scheduled to be sentenced on 5 January 2023. The charge of contempt for scandalising the court has been repealed in many parts of the Commonwealth, in recognition of its chilling effect on freedom of speech in the context of judicial error and misconduct.

Mr Naidu is a senior Fijian lawyer who has worked in the area of human rights and upholding freedom of speech and expression. The contempt of court charges were brought by Fiji’s Attorney General, Hon. Aiyaz Sayed-Khaiyum in June 2022. In the months preceding the charges, Mr Naidu had appeared at political opposition rallies, leading to speculation he may run for political office.

The Law Council of Australia sent Mr Nicholas Cowdery KC as an observer to the proceedings. He reported that Mr Naidu was denied procedural fairness and was not afforded a fair trial. He raised concerns about the bona fides of the proceedings, the attempted reversal of the onus of proof and Mr Naidu’s inability to test the evidence against him. The Court ruled against Mr Naidu’s request to cross-examine the sole witness, the Attorney-General.

Given both the stringent requirements of the offence of scandalising the court and its potential impacts upon freedom of speech, the Law Society is concerned at the decisions to charge and to convict Mr Naidu.  The Law Society is also concerned that the Court’s refusal to allow Mr Naidu to test the evidence against him appears to be in breach of Article 14(3)(e) of the UN International Covenant on Civil and Political Rights and section 14(2)(l) of the Constitution of the Republic of Fiji. Both instruments guarantee the right of an accused to examine and challenge the witnesses and evidence presented against them. Such breaches constitute an unfair trial.