Bill a contemptuous challenge to the judiciary

  • 21st May 2005
  • 2005
  • // Display comment count + link

The Fiji government is bent on tabling in Parliament a highly controversial Reconciliation and Unity Bill which is seen by the Fiji Labour Party, other Opposition parties and civil society organisations as a contemptuous challenge to the judicial system and its determinations.

Contrary to its name, the proposed Bill is seen as a major source of disunity should it be enacted. In essence, it allows for the setting up of a Commission of Reconciliation and Unity to deal with the terrorist activities of 2000 and the overthrow of the democratically elected Labour government.

Its insidious motive appears to be to enable perpetrators of the coup to seek amnesty and a general pardon on the assumption that political crime should not be seen as a criminal activity.

As it stands, the proposed Bill is inconsistent with the provisions of the Constitution in several respects; it has serious repercussions on issues pertaining to the Rule of Law, good governance, human rights and the sustenance of the judicial system within Fiji.

Several clauses of the Bill are repugnant to the sense of justice of the ordinary people of Fiji. One does not have to stress that any move to excuse political criminal activities on a favourable level will simply invite further coups and destabilisation campaigns. As such, it understandably raises serious apprehension about what may happen following the 2006 general elections.

The Bill has been widely condemned by the Fiji Law Society, the Fiji Human Rights Association and it is understood, the judicial system is also very unhappy about it. There was no prior discussions with Opposition parties on the proposed legislation despite its far-reaching consequences on national stability and multi-racial harmony in Fiji.

The Labour Party has done some work on analysing the provisions of the proposed Bill. A paper on it is reproduced below:

Preliminary comments on Promotion of Reconciliation Tolerance and Unity Bill 2005. (“PRTU Bill” hereinafter)

Background

1. There have been a number of notable prosecutions under the provisions of the Penal Code against persons for their participation and complicity in the events of 2000 and particularly the attempted Coup, the taking of hostages, the violence and the gross violation of human rights committed during this period.

2. Several individuals who have been convicted of offences arising out of these prosecutions are currently serving custodial sentences, including terms of life imprisonment; although

3. As a result of the administrative decisions by the Attorney General and Minister of Justice, some high ranking chiefs have had their prison terms commuted to serve extra murally and/or are out of the prisons on Compulsory Supervision Orders.

4. Several members of the Peoples Coalition Government who were taken hostages have certain civil claims pending before the High Court of Fiji for damages and compensation arising out of the unlawful actions of the perpetrators.

5. The Police investigations into the unlawful activities of other perpetrators are ongoing and there is a strong likelihood of further arrests and prosecutions of these persons.

6. The Qarase Government has created a Ministry of Reconciliation charged with the responsibility of reconciliation and is seeking the unity of the people of Fiji.

The PRTU Bill

The key Objectives

3. – (1) The objectives of this Act are –
a) To provide for the establishment of a Reconciliation and Unity Commission and a Promotion of Reconciliation, Tolerance and Unity Council, their respective compositions, powers, functions and procedures;

b) To provide for mechanisms, measures, criteria and procedures for the promotion of reconciliation and the fostering of understanding , tolerance and unity of all people of the Fiji Islands;

c) Based on the principle of restorative as opposed to retributive justice, to provide for measures, mechanisms, criteria and procedures for granting reparation to the victims of gross violations of human rights and civil dignity during the designated period;

d) Based on the principle of restorative as opposed to retributive justice, to provide for mechanisms, criteria and procedures for the granting of amnesty to persons who make full disclosures of all facts relevant to acts associated with a political, as opposed to a purely criminal, objective committed during the designated period;

e) To provide for measures and mechanisms aimed at promoting and fostering tolerance and genuine unity among the people of the Fiji Islands, and the making of recommendations thereto aimed at preventing the perpetration of politically-motivated violations of human rights in future.

(2) In this section “restorative justice” means

a) Redefining crime by shifting the primary focus from being an offence against the State to being a violation against human beings, as injury or wrong to a person;

b) Reparation aimed at a process of reconciliation between victims and offenders and their families and the restoration of human dignity within the community through understanding and not vengeance, reparation and not retaliation, forgiveness and not victimization.

c) Encouraging victims and offenders and the community at large to be directly involved in resolving conflict with professional facilitators; and

d) Supporting a criminal justice system that aims at the offenders’ accountability through full participation of victims and offenders and making good and putting right what is wrong.

Principle of restorative justice

The PRTU has opted for the South African model of the Truth Reconciliation Commission. In fact, the PRTU Bill is itself a lift-out of a similar legislation in South Africa.

The South African model does not have any parallels to Fiji. The South African legislation is a consequential legislation to meet specific requirements of the South African Constitution.

The Constitution states that in pursuit of national unity, the South African citizens require peace and reconciliation for the reconstruction of the society.

In furtherance of the above purpose, the Constitution of South African states, that there is need for understanding, not vengeance, and a need for reparation and not retaliation, and in further pursuit of the above objectives, amnesty shall be granted in respect of acts or omissions connected with political objectives in the course of conflicts of their past.

It is immediately apparent that the South African model was established as a result of genuine negotiations between all the peoples of South Africa. There was a genuine resolve to attain peace and reconciliation.

The PRTU has had a very different origin. The legislation has been imposed unilaterally by the Qarase Government. There has been no meaningful consultations with the people directly affected by the events of 2000.

There has been no consultation with the victims or their political representatives on the proposed legislation.

The legislation has been sprung on the country without any proper notice of the contents of the Bill. The requirement for gazettal of the Bill prior to the meeting of the House of Representatives has not been followed.

The Government will have to seek a suspension of the Standing Orders of the House to introduce the Bill in its May meeting.

The urgency, and the surreptitious manner in which the Bill was drafted, and the lack of public debate on the contents of the Bill, reflect the total lack of consensus of the peoples of Fiji to its contents.

A free and healthy public discussion and debate sets the bench-mark for any legislative framework, especially if the objective is to reconcile and achieve unity amongst the fractured communities in the country. The people of Fiji have been denied this opportunity by the manner of the Bills inception and presentation. Simply put, the Bill has been imposed.

Restorative Justice Vs Penal Code Offences

The Bill attempts to re-define the criminal actions of the perpetrators. A very large number of the perpetrators have submitted to the established court jurisdiction and have been dealt with by the courts under the Penal legislation.

The Bill seeks to find an alternative to the court system.

A Retrospective Legislation

The PRTU Bill is retrospective in nature. It attempts to re-define the conduct that was criminal under the Penal Code as acts of politically motivated violation of human rights.

As a matter of principle, a retrospective legislation is shunned upon by all law-abiding and fair minded citizens in any country, including Fiji. It is most objectionable that what was considered to be criminal acts against the State and its peoples are now redefined as politically motivated violations of Human Rights. At the time of the commission of the offences the Penal Code classified these offences as criminal. With the passage of this Bill, what is considered to be acts of terrorism in the contemporary world, will be given another description; and with an added advantage of an amnesty for this conduct.

Creation for a haven for “terrorists”

The PRTU Bill by its redefinition of the criminal acts under the Penal Code, is creating a haven for terrorists in Fiji. A good starting point for the definition of a terrorist is the Financial Transactions Reporting Act 2004 Qarase Government was the initiator of this Act in 2004. The Act defines:
“terrorist act” means-

(a) an act or omission in or outside the Fiji Islands which constitutes an offence within the scope of a counter terrorism convention
(b) an act or threat of action in or outside the Fiji Islands which –

(i) involves serious bodily harm to a person;

(ii) involves serious damage to property;

(iii) endangers a person’s life;

(iv) creates a serious risk to the health or safety of the public or a section of the public;

(v) involves the use of firearms or explosives;
(vi) involves releasing into the environment or any part thereof or distributing or exposing the public or any part thereof to any dangerous, hazardous, radioactive or harmful substance, any toxic chemical, or any microbial or other biological agent or toxin;

(vii) is designed or intended to disrupt any computer system or the provision of services directly related to communications infrastructure, banking or financial services, utilities; transportation or other essential infrastructure;

(viii) is designed or intended to disrupt the provision of essential emergency services such as police, civil defence or medical services; or

(ix) involves prejudice to national security or public safety; and is intended, or by its nature and context, may reasonably be regarded as being intended to-

(A) intimidate the public or a section of the public; or

(B) compel a government or an international organisation to do, or refrain from doing, any act; or

(C) seriously destabilize or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation;

but does not include an act which disrupts any services, and is committed in pursuance of a protest, demonstration or stoppage of work if the act is not intended to result in any harm referred to in subparagraphs, (i), (ii), (iii) or (iv);

“terrorist group” means-

(a) an entity that has as one of its activities or purposes committing, or facilitating a terrorist act;
(b) a specified entity; or
(c) an organisation that is prescribed by regulation;

It will be clear to the simplest of mind that the actions of the perpetrators of the attempted Coup of 2000 fall within the above definition.

By its re-definition the PRTU is giving relief and shelter to terrorists.

The Qarase Government is reneging on its international commitments.

A Reconciliation Commission Vs Courts

It is significant to note that such commissions are established in countries where the legal system has been perverted, one way or another, in such a way as to permit the human rights abuses to occur.

Secondly, a commission may be an alternative to the established court system where the legal system and other institutions are so laden or the institutional capacity is unable to cope with the influx of cases before it or the judicial system cannot or is unable to right the past wrongs through the concept of Rule of Law.

Truth Commissions, therefore, represent a compromised and imperfect vehicle but politically viable alternative way to examine the shortfalls in the practice of human rights in their legal system and the security forces.

The court system in Fiji has vindicated itself and stood the test of time. The Supreme court has heard and determined a number of matters on the construction and interpretation of the Constitution . In fact, the Supreme Court was instrumental in upholding the validity of the Constitutional of Fiji in the landmark Chandrika Prasad Case.

The trial and conviction of the persons accused of criminal activities in the events of 2000 have been conducted strictly in terms of the Constitution of Fiji. There are no allegations of denial of human rights or departure from the established principles of fair trial.

In the circumstances, it is imprudent to turn to an alternative and untried system of the Reconciliation and Truth Commission to found jurisdiction to deal with the offenders for the event of 2000.

There is, therefore no clear rationale or political justification to advocate an alternative to the court system.

Improper Purpose/Motives

The proponents of the PRTU Bill have not advanced any plausible arguments for the enactment of the legislation. There is a lack of empirical evidence to justify such an Act at this late stage. The real motive appears to be veiled – the political undertaking by the Qarase Government to one of its coalition partners to grant an amnesty to the perpetrators of the attempted Coup of 2000 and to provide relief from prosecution and sentence to its political affiliates.

The Constitutional Powers of the Director of Public Prosecutions

The office of the Director of Public Prosecution is created by Article 114(1) of the Constitution of Fiji. Article 114 (4) (a), (c) provides,

(4) The Director of Public Prosecutions may:

(a) institute and conduct criminal proceedings;

( c) take over criminal proceedings that have been instituted by another
person or authority; and

It is a matter of common knowledge that the Qarase Government has been unsympathetic to the continued prosecution of the perpetrators of the attempted Coup and the terrorists acts of 2000. The Qarase Government has acted in an ambivalent manner when certain high ranking chiefs and its cabinet ministers were charged and convicted of offences relating to the events of 2000. The Qarase Government has, through the administrative actions of its Minister of Justice, released several chiefs from custody to serve their prison sentences extra murally or under Compulsory Supervision Orders.

Section 21(1) of the PRTU Bill provides:

(1) Any person who wishes to apply for amnesty in respect of any act or omission committed during the designated period, on the ground that it related to an act associated with a political objective, and not purely criminal in context, shall submit his or her application to the Commission in the prescribed form.

(2) In dealing with applications for amnesty, the Commission shall give priority to application from persons in custody.

(4) In this section, an “act associated with as political objective”: means an act or omission the commission or omission of which is directly related to or made for the fulfillment of a political purpose or
objective.

(5) If the act or omission which is the subject of an application for
amnesty under this section constitutes the ground of claim in any
pending civil proceedings, the court before whom the civil claim is
pending may at the request of the Commission, suspend those.

The PRTU provides in Section 9 (2) (3)

9.- (2) The function of the Amnesty Committee is to inquire into any
application for amnesty from any person referred to the Committee by the Commission in respect of any act or omission committed or omitted by the applicant in connection with any politically motivated gross violation of human rights during the designated period.

(3) After hearing an application under subsection (2), the Committee shall prepare and submit to the Commission a full report containing the Committee’s findings on which the Commission shall make recommendations to the President with advice on whether or not an amnesty should be granted to any person under this Act.

Thus, powers conferred on the Commission directly conflict with those of the DPP.

Under the Constitution, the DPP and he alone takes a decision to institute proceedings or the termination thereof.

The powers of the Director will be curtailed under the PRTU Bill. The provisions of the Constitution granting professional independence to the DPP will be restricted. This is an unwarranted interference with the Constitutional office of the DPP.

Query? In the event, the DPP refuses to terminate the proceedings, would the directive to the Commission prevail?

The Bill will interfere with and bring about uncertainties in the constitutionality of the independent decision of the DPP. The provisions of the PRTU Bill are unconstitutional.

Amnesty

Section 21 (10) of the RTU Bill states,”

21.- (10) Upon receiving the report of the Commission the President shall
act on the advice of the Commission on whether or not to grant the amnesty applied for, and the granting of an amnesty shall by order of the President be published in the Gazette setting out the full names of any person to whom amnesty has been granted.

The operative word in the provision is that the President shall act on the advise of the Commission.

The requirement is mandatory. The President does not have any discretion whatsoever. This needs to be contrasted with the provision of Article 115 – (1) of the Constitution, which provides,

115 (1) the President may

(a) grant to a person convicted of an offence under the law of the State a pardon or a conditional pardon;

(b) grant such a person a respite, either indefinitely or for a specified period, of the execution of the punishment imposed for the offence;

The use of the word may denotes a discretion. The discretion is eroded by the PRTU Bill. It is worthy of note that under the above Article of the Constitution, the President has powers to pardon once the offender has been convicted.

Under the PRTU Bill, the amnesty or right of pardon is purportedly exercisable prior to conviction.

There is no provision in the Constitution to empower the President to grant pre-conviction amnesty or pardon.

The PRTU therefore, is ultra-vires the powers of the President as contained in the Constitution.

Other Extra-Constitutional Provisions

Article 96 (1) of the Constitution provides,
“Subject to subsection (2), in the exercise of his or her powers and executive authority, the president acts only on the advice of the cabinet or a Minister or of some other body or authority prescribed by this constitution for a particular purpose as the body or authority on whose advice the President acts in that case”.

The Constitution provides for the advice to be tendered to the President by the cabinet, a Minister or some other body or authority prescribed by the Constitution.

The Constitution does not provide for an advice from the Amnesty Committee under the PRTU Bill. Therefore, no constitutionally valid route has been established for this advice to the President by PRTU Bill; and any advice as provided for in the PRTU Bill is extra-constitutional provisions, and therefore, unconstitutional.

Further Erosion of the Constitutional Powers of the President and DPP

The PRTU Bill states,

9 .- (1)This section establishes the Amnesty Committee consisting of –
(a) a retired judge or a legal practitioner who is qualified for appointment as a judge, as the chairperson; and

(b) 2 members, appointed by the Commission with the approval of the Minister.
(2) The function of the Amnesty Committee is to inquire into any application for amnesty from any person referred to the Committee by the Commission in respect of any act or omission committed or omitted by the applicant in connection with any politically-motivated gross violation of human rights during the designated period.

(3) After hearing an application under subsection (2), the Committee shall prepare and submit to the Commission a full report containing the Committee’s findings on which the Commission shall make recommendations to the President with advice on whether or not an amnesty should be granted to any person under this Act .

The power of appointment of the Amnesty Committee is vested in the hands of the Minister.

The constitutional safeguards provided as set earlier for the President to exercise his prerogative of mercy, the rendering of the advice and the exercise of the discretion; and the constitutional safeguards and the independence of the DPP, are seriously compromised by the PRTU Bill.

The appointees of the Minister , in practice , cannot be expected to exercise such discretion fairly, and will be open to political manipulation.

This will expose the whole process to public odium and contempt. The corollary to this will be , that the victims of the coup will feel more isolated and aggrieved at this perceived injustice.

The Right To Sue

Fiji citizens, in keeping with the traditions of the British legal system, have enjoyed a right to sue the tortfeasors for the wrongs committed by them. The citizens, independently or through institutional agencies like the Human Rights Commission have had a right to seek redress for the violation of their human rights.

It is a commonly known fact that many of the hostages have brought claims against the hostage takers and the other institutions like the Fiji Military Forces and the State for damages for their unlawful acts of terrorism.

The PRTU Bill in section 21 (11) provides,

” No person who has been granted amnesty in respect of an act or omission shall be criminally or civilly liable in respect of such act or omission and no body, group or organization or the state shall be liable either directly or vicariously for any such act or omission”

The PRTU Bill takes away the fundamental rights of the victims. It unduly favours and protects the hostage-takers.

The PRTU Bill then adds insult to this apparent injury by restricting the claims for compensation against the State to the award under the Workers Compensation Act. This confines the award to a figure of $24,000.

This is ironical. The Workers Compensation Act provisions reserve a right to a claim under common law where there is no ceiling to the damages.

The option for the statutory award is an option that can be exercised as an alternative to the common law claim.

The PRTU Bill does not preserves the common law right of the victim to sue. This seriously erodes the victims right to seek redress in a Court of Law.

This is a curious provision in a Bill that professes to promote unity amongst the people of Fiji; and by it provisions, is denying the fundamental rights of the victims in preference to the oppressors.

Commentary From Others

The views expressed above are preliminary and not exhaustive.

Appended, hereto, are initial reactions of the Director of the Human Rights Commission and the Media Release from the Fiji Law Society.

Reconciliation and Unity ?

The Prime Minister has been the minister in charge of national reconciliation for several years. There are no reports forth coming from the department to show its success rate.

The enactment of the PRTU Bill, without proper consultation and assent of the victims of the coup, leaves the perception in the minds of those adversely affected that the legislation is designed primarily for political purposes, that is, a grant of amnesty to the perpetrators and the speedy release of the convicted prisoners.

The Opposition Parties believe that the Bill:

1. has the potential to seriously undermine the internal institutions established by the constitution including the office of the President, the DPP, the Commissioner of Police, and the workings and pronouncements of our independent judiciary.

2. has the effect of granting amnesty to the hostage-takers under the pretext of a politically-motivated violation of human rights. This will negate Fiji’s international commitments to the UN-sponsored International Convention against the Taking of Hostages, 1979.

3. has the effecting of derogating Fiji’s international commitments to the rule of law, good governance and human rights under the EU/Cotonou Protocols, and the letter and spirit of the Commonwealth’s Harare Declaration as well as the Biketawa Declaration of the South Pacific Forum.

4. has the effect of interfering with the due process of law and the independence of the judiciary and the concept of separation of powers between the executive arm and the judiciary

5. is a recipe for further fragmentation of the peoples of Fiji and further disunity and polarisation of the races

6. breaches the basic provisions of redress under the Constitution for human rights abuses