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”.
- Powers of the President
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 Judiciary
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.