RECONCILIATION BILL AN INSULT TO VICTIMS OF FIJI COUP

Commentary

By Sanjay Ramesh

HONOLULU (Pacific Islands Report, June 8) – On 1 June 2005, the new Racial Tolerance and Unity Bill was introduced in Fiji Parliament. The Bill is aimed at providing amnesty to a number of convicted Government Ministers, their supporters and those yet to be charged for the insurrection of May 2000. As a result, the Bill is a gross violation of the human rights of the victims of the coup and has been condemned by the out going United States Ambassador to Fiji, David Lyons, on 30 May 2005.

I wish to highlight some of the areas of the Bill that are causing grave concerns in the Indo-Fijian community both in Fiji and abroad.

The preamble of the Bill states that the political events of 1987 and 2000 were occasioned by a widespread belief among the indigenous Fijians that the 1970 and the 1997 Constitutions were inadequate in protecting and preserving indigenous rights. This preamble of the Bill pre-empts to a certain extent the legal definition of political crimes. For example racial attacks on Indo-Fijians in rural areas of Dawasamu, Muaniweni, Korovou, Tailevu, and parts of Northern Levu were inspired by the events unfolding in Fiji Parliament, where armed men took the Peoples’ Coalition Government hostage for 56 days, because the Coalition had, according to the hostage takers, "failed indigenous Fijians."

Not only did the politically motivated violence affected Indo-Fijians, it impacted on indigenous Fijians, including those who stood steadfast on law and order. The coup makers whipped up flames of provincialism and went after late Ratu Mara. There were scores of indigenous Fijians who were laid off as a result of the events of 2000. The most telling problem with the Unity Bill is the definition of victim. Under the Interpretation Section, victim is defined as a person who suffered harm as a result of a politically motivated crime. However, under Part 4 of the Bill on Applications for Relief, reparation is only payable to victims when an amnesty has been granted to a perpetrator.

The Bill does not provide any policy parameters for the measures, criteria and mechanisms for promoting and fostering racial tolerance. The only guiding principle being restorative justice, which essentially means restoring those who have been injured or harmed as a result of a crime.

The Prime Minister of Fiji plays a major role in establishing the Reconciliation and Unity Commission. He is required to consult the leader of opposition but it is up to the discretion of the Prime Minister to decide whether he wants to accept any of the outcomes from the consultative process. This very much reflects the sad saga of the interpretation of Section 99 of the 1997 Constitution. Prime Minister of Fiji contended after a prolonged court battle that he will consult the opposition with respect to the composition of the Cabinet but will only offer irrelevant ministries, because the Government and the opposition has opposing party policies. The problem with Part 2 of the Unity Bill is that the Commission effectively becomes a political appointed entity solely under the purview of the Prime Minister. Even the process of replacing a Commissioner cannot proceed until the Cabinet is consulted. The procedural framework for setting up the Commission is thus unfair and does not take into consideration the ethnic division and racial intolerance prevalent in Fiji’s community. Furthermore, the Victims and Repatriation Committee and the Amnesty Committee under the Unity Bill have majority of its members (2 out of 3) appointed by the Minister.

Whilst the Prime Minister of Fiji, Laisania Qarase, has condemned the 1997 Constitution for failing indigenous Fijians, he still wants the Unity Commission to be guided by the principles enshrined in the Compact and the Bill of Rights. Under Section 5 of the Bill, the Human Rights Commission may provide views and recommendations to the Commission but it is up to the Commission to be guided by these views. The problem is that the Deed of Cession preamble in the Unity Bill may be used by the politically appointed Unity Commission to define restorative justice within the context of indigenous Fijian customary practices and this may undermine the promotion of reconciliation, because the crimes, even though politically motivated or inspired, were largely racial in nature and the victims were mostly Indo-Fijians. As it stands no consideration what so ever is given to victim groups or their representatives.

The most troubling perhaps is the powers of the Commission with respect to public hearing. The Commission has powers to hold sessions behind close doors and witness testimony before the Commission will be privileged. Such privilege may be militated when a Commission is convinced that the testimony elicited will produce new or vital facts that would otherwise be unavailable or to allow a witness to implicate persons of greater rank or authority. In the case of the Unity Bill, no witness may be compelled to incriminate the witness’s spouse, parents, children, or relatives. The witness is further allowed legal representation at the discretion of the Commission. However, it would have been in the interest of the public to have a Commission with powers to investigate further into witness statements until all relevant facts about the events of 2000 are uncovered. The Applicability of Privilege will protect perpetrators and their source and may not bring any form of closure to the victims thereby defeating the primary objective of the Bill.

The Minister will use tax-payers money to fund compensation and reparation under Special Fund provision in Section 20 of the Unity Bill. This means that the perpetrators of politically motivated crime will easily shift the burden of compensation and reparation to the state. This will encourage politically motivated racial crimes in the future, despite the analysis and recommendation of the Commission.

The most devastating of all perhaps is that the Application for the Amnesty provision under Section 21 subsection 3 of the Unity Bill. Ordinary reading of the section imputes that the Commission could coach a perpetrator of a politically motivated crime to perfect his or her application to the Amnesty Committee, whereas the same provision is not available for victims under the Reparations Committee. This is a gross and systemic violation of the rights of the victims within the Unity Bill. Furthermore, the Commission has powers to suspend criminal and civil proceeding for politically motivated crime and following the granting of amnesty discharge the perpetrator of all related offences. Even prison sentences for known coup masters will be abrogated on the receipt of amnesty and their convictions erased as if the crime was never committed. The provisions in Section 21 takes its queue from the amnesty granted to the perpetrators of the 1987 coup.

Section 21 of the Unity Bill is most interesting because there are a number of coup related civil and criminal cases pending as well as a number of Government Ministers charged, convicted or are yet to be convicted for their roles in the 2000 coup. Fiji Police and the Fiji Military Forces have already expressed concern that the discretionary powers vested in the Commission will allow coup conspirators to claim amnesty without any meaningful reconciliation with the victims. This will further divide the community.

Part 5 of the Unity Bill establishes a Unity Council with 20 members. Just about half of the nominees are government appointed. 1 from the Ministry of Reconciliation (CEO), 1 from Ministry of Education, 3 indigenous Fijian Confederacy members nominated through Fijian Affairs, 3 Indian Advisory members nominated by the head of the National Advisory Council where Prime Minister is the Chairman, and 2 experts.

The Bill as it stands has provided a caveat for the coup perpetrators while it locks the victims in a nightmarish bureaucratic process where they have to prove to the Commission "gross" human rights violations as a result of political inspired violence. The Prime Minister stated that the perpetrators have to prove "political violence", but the preamble effectively sets the stage where perpetrators both in and out of prison and those waiting prosecution gets a licence from the Government of Fiji to escape Fiji’s justice system, because all politically motivated actions and omissions were based on the perception that the 1997 Constitution was inadequate to effectively protect and preserve the rights and interests, values, customs, way of life and economic well being of indigenous Fijians.

The Unity Bill, therefore, must be condemned by all segments of community both in Fiji and abroad. Representations by concerned groups must be made to their respective Governments with diplomatic relations with Fiji and it must be communicated to the Government of Fiji that the international community will not tolerate efforts to violate the rights of the victims by rewarding coup makers with amnesty.

Sanjay Ramesh is a frequent commentator on political issues in Fiji.

June 8, 2005-06-07Pacific Islands Report (www.pireport.org)

 

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