Open letter to the Prime Minister from Opposition
Leader
[posted 8 June 2005, 13.30]
The Prime Minister recently put out four-page
advertisements in the newspapers, at heavy cost to the taxpayer. These
attempt to justify the SDL government's decision to proceed with the
so-called Promotion of Reconciliation, Tolerance and Unity Bill despite
widespread public criticism.
The PM's statement contains serious errors and
misrepresentations on the purpose and substance of the Bill. These need to
be corrected in the public interest. As Leader of the Opposition, I wish
to highlight the more blatant aspects of the disinformation contained in
the Prime Minister's statement.
The PM says: " … there is no intention whatsoever
of granting a general pardon for those implicated in the insurrection of
2000…there is to be no blanket amnesty"
The Truth is, Mr Prime Minister: several provisions of
the Bill provide a 'legitimate' means by which a pardon/amnesty can be
granted, whether selective or general. A person implicated in the violent
and unlawful overthrow of the democratically elected government in 2000
and other acts of terrorism will qualify for amnesty or full pardon.
The Truth of the matter, Mr. Prime Minister, is that any
person implicated in criminal acts of terrorism - mutiny, murder, arson,
seizure of and damage to property, extortion, intimidation and physical
violence - will be entitled to walk free without being brought to justice.
In any civilised society, any act that involves serious
violence against a person, serious damage to property, endangers a
person's life or creates a serious risk to the health or safety of the
public, is an act of terrorism.
The truth is any use or threat of action that is
designed to intimidate the public or to advance a political, religious or
ideological cause is an act of terrorism. (UK Terrorism Act 2000).
Mr. Prime Minister, through the Bill, you are
deliberately removing the criminality of these acts of terrorism. You are
now re-defining acts of terrorism as legitimate, politically-motivated
activities. The interpretation section of the Bill makes this crystal
clear.
This is what the Bill states on amnesty:
· In Clause 9 (1)& (2), the Bill provides that
anybody who has been charged with and/or convicted for "any
politically motivated gross violation of human rights" can now apply
for an amnesty. What an outrage!
· Further, under Clause 21 (9) the Reconciliation and
Unity Commission is empowered to recommend amnesty/pardon for persons
associated with "politically motivated" activities.
In fact, despite what the Prime Minister claims, Clause
21 (9) is so wide that it legitimises an amnesty for any terrorist who can
claim political motivation.
These clauses together are tantamount to a "general
pardon" or "blanket amnesty".
The PM says: "We will make sure that the
legislation finally passed meets the requirements of the Constitution and
does not compromise the Office of the President."
The truth is, Mr. President: Section 21 (10) of the Bill
states that on 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…"
This clearly makes it mandatory on the President to
grant the amnesty, if so recommended by the Commission. It removes the
President's existing constitutional right to exercise his discretion on
whether or not to grant pardon/amnesty.
The Bill provides for communication directly by the
Commission to the President on the question of the granting of amnesty.
Additionally, the Commission usurps the powers of the Prerogative of Mercy
Commission, an office set up under the Constitution to advise the
President on whether or not to grant amnesty/pardon.
All these provisions are in direct violation of the
Constitution (Article 96) which clearly states that the President can only
act on the advice of: the Cabinet or a Minister, any other body or
authority prescribed by the Constitution. The Reconciliation and Unity
Commission is not a body set up under the Constitution.
Moreover, the powers of the President are circumscribed
under the Constitution (Article 115) in that he can only exercise the
right to grant a pardon, after conviction by a court of law. Under the
Bill, however, the pardon may be granted even before the court has given
judgment in the case.
There is no such provision in the Constitution to
empower the President to grant pre-conviction amnesty or pardon.
- Undermining the DPP's Office
The PM says: "There can be, and there will be, no
interference with the authority and independence …of the DPP…"
The truth is, Mr. Prime Minister: Under the Constitution
[Article 114 (4) (a)], the DPP has powers to instigate and terminate
criminal proceedings. It is an independent constitutional office,
protected from political interference.
Now, under the Bill, the powers of the DPP are
undermined. A politically appointed Reconciliation and Unity Commission
will be able to suspend criminal proceedings [Clause 21 (b)]. This
provision usurps the powers of the DPP and, as such, stands in breach of
the Constitution. It manifestly threatens the independence of the DPP's
office, an important office that functions as guardian of law enforcement.
So to suggest that there will be no interference with
the authority and independence of the DPP, is blatantly false.
The PM says: "There can be, and there will be, no
interference with the authority and independence of the courts…"
The truth is, Mr. Prime Minister: Clause 21 (6) empowers
the Commission to directly interfere with matters before the court, in the
same way as it undermines the independence and powers of the DPP. The
Clause states: "…the Commission may request the Court to postpone
the criminal proceedings pending the consideration and disposal of the
application for amnesty."
In addition, Clause 21 (12) allows a person granted
amnesty for a crime for which he has been convicted and is serving a term
of imprisonment, to be "released from prison forthwith on a warrant
issued by the President".
Clearly, this again has the effect of overturning or
undermining a lawful decision of the Court. The Prime Minister is
therefore deliberately misinforming the public when he says there is no
interference with the courts.
Under Clause 21 (2), the Bill even goes so far as to
give "priority" to amnesty applications from "persons in
custody". Furthermore, the Commission's right to grant amnesty is in
itself a direct and blatant interference with a court judgment.
Overall, the Bill emphatically empowers the Commission
to overturn a judgment of the court. This is totally unconstitutional.
The PM says: "It is about choices. This legislation
relies on voluntary participation by victims and wrongdoers alike. The
ordinary criminal and civil processes are left to the Courts".
The truth is, Mr. Prime Minister: the Bill takes away
the fundamental rights of victims of terrorism to pursue a civil action in
court.
Refer to Clause 21 (11) of the Bill. According to this
provision, once a person has been granted amnesty, he or she will no
longer be liable in a civil court. In fact, the exoneration granted to
terrorists extends to criminal liability for damages.
Instead of giving choices to the victims, as you assert,
the Bill gives them no choice at all. Victims will be stripped of their
right to legal redress. This is further evidence that their rights are
curtailed under the Bill.
Mr. Prime Minister, the Bill is offensive in that it
denies victims effective and equal access to justice.
Instead, offenders' rights take precedence under the
Bill, as they have the choice of going to the Commission to seek a pardon,
and in turn the right to have civil proceedings against them terminated.
Where is the justice in this?
Mr Prime Minister, in your lengthy advertisements, you
have gone to great lengths to defend what is demonstrably indefensible.
The contents of the Bill directly conflict with what you
claim, and you have disingenuously drawn on the noble concept of
restorative justice to justify an abhorrent piece of legislation.
Let there be no mistake. The Bill can never create the
basis for restorative justice. It will only open the floodgates to more
acts of terrorism. It will not build harmony but will sow the seeds of
greater distrust and instability. It will not heal the wounds of 2000, but
deepen them.
Mr Prime Minister, you take as your starting point for
this Bill the fact that "Fiji has a divided, polarized society."
Rest assured, this Bill will 'further' divide and polarize our society. It
can never provide the basis for peace and reconciliation. It will take us
'further away' from achieving both these goals.
If you and your government sincerely wish reconciliation
and peace to take root in our society, then you should begin by showing
this through your actions and leadership. You should begin by listening to
the voice of the people, and taking heed of the overwhelming public
opposition to this Bill. You say, "we are not deaf. We are
listening". But are you really listening?
For the discerning public, it is very clear that your
main concern is to facilitate the early release of those implicated in the
2000 coup and others under investigation. Despite your repeated claims,
this Bill paves the way for "general pardon" and "blanket
amnesty".
Mr. Prime Minister, by condoning terrorism, this Bill is
itself an act of terrorism. It must be withdrawn. |