A PLEA FOR RESTORATIVE JUSTICE

Commentary

The following is a speech made in the Fiji Parliament by Prime Minister Laisenia Qarase on June 2, at the second reading of the Reconciliation, Tolerance and Unity Bill.

By Fiji Prime Minister Laisenia Qarase

SUVA, Fiji (Fijilive, June 16) - Mr Speaker, Sir, in my absence on Tuesday, the Honourable Attorney General and Minister for Justice spoke on my behalf when he moved the first reading of the Reconciliation, Tolerance and Unity Bill. I now present the second-reading introduction of this Bill.

There is an enormous amount of public interest in this Bill. All sorts of claims and criticisms are being made, which is to be expected given the nature of the proposal. Let it be known today, that we are not deaf. We are listening. I have to say, however, that I take strong exception to what appears to be blatant misrepresentation and deliberate distortion.

It is again evident that Fiji has more than its fair share of people and groups ready to make hasty, shallow and ill-informed pronouncements on complicated issues. We are fortunate to be living in a society where people are free to express themselves, even when they mislead. They would more effectively serve the public interest if they were better informed. Some of them should know better.

I suppose when people get excited and carried away, and hop onto a bandwagon, they are inclined to say all sorts of things that don’t stand up to close scrutiny. For instance, there is a constant claim that the legislation is just a device for offenders from 2000 to be released from prison. That claim is a serious departure from the truth.

On the day I announced our decision to proceed with the legislation, I said this: "Let me make it absolutely clear that there is no intention whatsoever of granting a general pardon for those implicated in the insurrection of 2000. People who participated with criminal intent, as established by the Police, will continue to be subject to the full force of the law." The Bill is not intended to provide relief for those who used the Coup for their own gain or other criminal intent.

I also repeat what I told delegates at the annual meeting of the Soqosoqo Duavata ni Lewenivanua Party last week. There is to be no blanket amnesty. Amnesty will only be granted in individual cases on the specific advice of the Reconciliation and Unity Commission, assisted by an Amnesty Committee presided over by a judge.

Additionally, it is to be available only to those who decide to apply.

I give another assurance. There can be, and there will be, no interference with the authority and independence of the Courts, the Director of Public Prosecutions and the Police. We are taking advice from senior counsel to ensure that the integrity and independence of these institutions are maintained.

Similarly, we will make sure that the legislation finally passed meets the requirements of the Constitution and does not compromise the Office of the President.

I make a further observation here. In all the public outpourings I have not detected any significant opposition to the ideal of restorative justice, upon which this Bill is based. That is encouraging. I will be speaking about restorative justice later in this presentation.

Members opposite may ask why we are presenting the draft Bill at this stage. The answer is that the Government believes this matter is urgent and necessary. The timing is right. Furthermore, we are referring the Bill to the appropriate Parliamentary Sector Committee, comprising members from Government and Opposition. Those involved will be backbenchers, not Ministers. This will provide for a good measure of bipartisan consideration. It is for the Committee to invite the people of Fiji to make their views known on the Bill. The Committee will have a full mandate to hold public consultations, so that the voices of our citizens are heard.

I would encourage important groups and institutions such as the Fiji Human Rights Commission, the Churches, non-Government organizations, professional bodies and provincial and tikina councils, to make submissions. Government will be consulting the Great Council of Chiefs when it meets in July. I hope the Judiciary, the Police and the Office of the DPP will also share their thoughts with the Committee. We look forward to receiving the report of the Sector Committee, which will, of course, be given full consideration. Members of the House who have difficulties with the Bill should make their views known to us. We are ready to listen. Already interesting and varied views are coming through; these will help us to perfect the Bill.

Before publicly announcing the Bill, I met with a number of important community groups to inform them about our intentions. I thank them for agreeing to meet with me at short notice and for their general support for what was proposed. These meetings were, however, not full consultations. I assure those parties that they, too, will be given full opportunity to present their views in more detail. I make special mention of the existing Council for National Reconciliation & Unity.

I thank all those other groups and individuals who have stepped forward to support us. They may not be as well organized with their media publicity as a lot of the non Government organisations. But their views are just as important. I particularly appreciate the unanimous backing from my own SDL Party. Delegates to the Party’s annual conference last week came out strongly in favour of motions supporting the Bill. Those motions represent a very large body of opinion. They stressed our Government’s intention to listen to all the views expressed for, and against, the legislation so that we can perfect the mechanisms and procedures set out in it. Note that wording. We are ready to perfect the mechanisms and procedures of the Bill if, in the light of public debate, we think this is necessary and consistent with the core objective of this proposed legislation.

At this point, Mr Speaker, Sir, let me clear the air, once again, on allegations that I denied there was to be a Reconciliation Bill. There was an impression in certain sections of the media, and elsewhere, that the Government was planning legislation to pardon all political prisoners, including chiefs. When I was asked about this, I said, No. When I said no, I meant no. There was no Bill to grant a general pardon.

Mr Speaker, Sir, when I first briefed the media on the Bill on May 4, I expected it would be controversial. It deals with a subject that arouses powerful emotions, so it followed that the legislation itself would similarly produce strong responses. That in itself can never be justification for a Government going weak at the knees and abandoning its beliefs. A Government that cannot stand firm over what it believes, betrays the mandate granted to it by the people. Our Government is in office to govern. We prefer to seek common ground and consensus when this is possible.

I obviously hope that some common agreement will emerge over this Bill as the dialogue and debate goes forward. While we must always be ready to respond to loud dissent and to give consideration to what is being said, we will never bow to threats or intimidation. As a Government we have the responsibility to weigh all points of view on whatever policy we are promoting. Then we have to take some decisions. Adjustments and amendments might be made, and, in fact, often are. But, in the end, we must have the courage to remain true to what we believe is right for the country. It is like that with the Reconciliation, Tolerance and Unity Bill.

The Bill is based on certain principles and considerations which are valid for helping Fiji come to terms with, and overcome, the differences that separate the nation and its people. We see an opportunity now, through this legislation, for Fiji to take an unprecedented step into new realms of reconciliation. This will complement the continuing national efforts to bring people together in a spirit of forgiveness and togetherness. It is in fact a continuation of what we started last October during eight days of reconciliation in association with Fiji Week.

There have been many programmes and initiatives aimed at achieving greater understanding and unity amongst the people. I have consistently, and frequently, referred to the need for forgiveness and friendly co-existence. Many citizens have responded and made their own contributions to narrowing ethnic divisions and creating harmony. I have been heartened by their willingness to reach across ethnic barriers. But sadly, and understandably, many of those who suffered in 2000 are not yet able to reconcile. Their hurt goes deep. We cannot ignore this. So long as this hurt exists, we will never have lasting peace and stability.

Through restorative justice, Fiji will search for the truth behind the tragedy of 2000, and about the issues, problems and injustices, which might have contributed to it.

We now know one of the reasons for delays in coup investigations is public reluctance to provide the Police with evidence. This initiative will hopefully encourage people to come forward and tell the nation the truth about those responsible for what happened in 2000.

The country will also benefit by hearing from those who took part and why they did what they did. Justice will be available for the victims, who have an opportunity to publicly express their anger and hurt in a legally constituted forum set up especially to hear them. They are free to seek compensation. Arrangements can be made for them to meet with those who caused them harm and violated their rights. The offenders have a chance to apologise, to restore relationships, to seek forgiveness and appeal for amnesty. That amnesty may, or may not, be granted. I will return to this again shortly.

Mr Speaker, I think we have to briefly look at our modern history to understand why we are considering this legislation. The starting point is that Fiji has a divided, polarised society. Although our diversity gives the country its unique character, it also presents us with some real challenges in nation building. Now some people are not comfortable with this reality and would perhaps prefer not to confront it. I will speak about this in a little more detail later.

The Fijians and the Indians, two distinct ethnic groups, with quite different cultures and religious beliefs, were put together in the same islands for reasons of colonial expediency. But they were then separated and disconnected. Colonial policy imposed divide and rule. I give you some illustrations of this. Look through old Crown lease documents and you will find that parts of Suva, such as Vatuwaqa and Samabula, were designated as Indian settlements. Mead Road and Nabua were largely for Fijian and part- European housing. At Lautoka and Vatukoula, it was company policy to segregate the different communities into different housing areas, with Fijians and Indians at the bottom of the pile. In education, the Indian community was compelled to operate their own schools; separate schools were set up for Fijians. The Chinese community established their own schools. Suva Grammar School was exclusively for European and part- European children until the early 1960s.

I mention all this because it partly explains why our communities tend to vote communally, and find comfort in the familiarity of their own cultures and with their own political leaders. There is another factor about racial behaviour. This related to changes in population numbers. As the Indian population began to grow, the Fijians increasingly acquired a sense of political and social insecurity. They had an understandable fear of political and economic domination, of losing their inheritance and host status as the indigenous community, or Taukei of Fiji. That fear intensified when they found themselves outnumbered by the descendants of the original settlers from India, whose leaders kept pressing for common roll – a one-person, one-vote method of voting. To the Fijian mind, that was a democratic device for the indigenous Fijians’ political oblivion. It was said they feared common roll like the devil. This was why they strongly opposed it.

From the political pronouncements of Fijian chiefs in the 1960s, it was clear their support for moves to self-government and independence was reluctant. The demographic trend moved in favour of the Fijians in the 1990s. Once more they were in the majority. The insecurities of the Fijians, however, continued, compounded by difficulties in competing economically and commercially. They were left behind in education, in business, the professions and municipal affairs. Indian farmers dominated in what was formerly Fiji’s main commercial enterprise, the sugar industry. Most of the Fijians’ best land was leased out to others.

This is part of the backcloth to the upheavals of 1987 and 2000 and the terrible consequences that flowed from them. Our biggest challenge Mr Speaker, Sir, is the lack of political assimilation, which is most evident at election times. Each election becomes essentially an ethnic power struggle; an unhealthy contest between the Fijians and the Indians. The election results of 1977, 1987 and 1999 demonstrated that Fijians could lose power and the national leadership. The Fijians, as the indigenous community and the majority, naturally want to retain political leadership.

Now, a great many Fijians do not think these aspirations are radical or wrong. They believe they are just and reasonable given our history, racial divisions, the present day majority numbers of the Fijians, their ownership of the land and their indigenous identity. There are only about 450,000 Fijians on this earth. They are conscious of the fate of indigenous peoples elsewhere. They have no intention of becoming a marginalised, dispossessed, dying race.

In view of what has happened to other indigenous groups, the fears and insecurities of the Fijians should be easy to understand. For them, loss of political control and leadership is more than just an election result. It is a reflection of their worst nightmares. It will remain that way until there is a much higher level of inter-racial trust, cooperation and understanding.

The Fijians feel that since the advent of party politics, they have tried hard to persuade our Indian citizens to join with them politically. But it has not happened, and naturally the Fijians are aggrieved by this. They feel the hand of co-operation and friendship they have extended has been rejected. Our Indian community is legitimately concerned about equality and their rights. They ask, what are we doing wrong? They feel discriminated against – although I have to say the discrimination argument cuts two ways.

Our Indian and minority communities have worked hard and contributed to Fiji’s development. They are citizens and feel genuinely that national leadership is also their birthright.

The essence of what I have been explaining is that there is a political gulf which all of us have failed to bridge. It is the consequences of this, and other elements of our history and social and economic situation, which have created a wounded country. There is a sorry example of a weeping wound in the long-standing issue of expired leases on native land. I have always said that this is an economic matter which could be easily resolved. The Government and the NLTB have put forward sensible and just proposals for a solution. But our progress towards this is being obstructed by politics among the Indian leadership. They are fearful about reaching agreement in case they lose votes. Meanwhile, the cane farmers continue to suffer from the division over land.

I believe, Mr Speaker, Sir, we must deal with entrenched attitudes of bitterness and distrust. These exist in both the Fijian and Indian communities, although, as I have said, not to the degree of intensity experienced in other ethnically-mixed nations. These attitudes must be faced honestly and openly. There is no point in pretending that everything is all right when it is not. I say this because there is a tendency to gloss over and deny our differences. A manifestation of this is that anyone drawing attention to the realities of our racial divisions is immediately branded a racist. This kind of political correctness and denial is unhelpful and even dangerous.

Mr Speaker, Sir, the Bill is not that long. Members will find the gist of it in their attachments. But I deal now in some detail with the amnesty provisions, the concept of political prisoners and other vital questions relating to the Bill. The Reconciliation and Unity Commission will possess the powers to make recommendations to His Excellency the President on the granting of amnesty to applicants. It would only be given in cases of violation of human rights judged to be politically motivated. The sections of the Bill dealing with this were not conjured up locally. They have been taken from legislation adopted and successfully used elsewhere. I should mention here that around 20 countries have chosen to establish Commissions as a means of dealing with human rights violations. These include: Chile, Argentina, South Africa, Guatemala, El Salvador, Uganda, Sierra Leone, Chad, Haiti, Nigeria, Brazil, Honduras, and Timor Leste. Some of these were created by international organizations like the United Nations.

There are, of course, different interpretations of what is meant by political crimes. Governments of all types have held political prisoners. Even in the U.S., there are allegations that some offenders there are in this category. Generally, someone who was jailed for a wrong committed in pursuit of certain political ideals, beliefs, purpose or objective, could be classified as a political prisoner. Much would depend on the specific circumstances of the case.

I should imagine that in Fiji someone who took part in certain activities out of a traditional sense of duty and obligation but without criminal intent would qualify to be categorized as a political prisoner. It would be for the Commission to make that decision after due consideration of a particular application and the facts of the case.

I stress that there will be no blanket categorization of what constitutes a politically inspired offence. It will be for individuals to apply to the Commission and for the Commission to make a determination after considering all the relevant facts. Mr Speaker, Sir, despite the differing views on this issue of political prisoners, there can be no denying it has significant international acknowledgement. It applies, in particular, to countries that have experienced deep-seated and destructive internal division and dissent, based on such things as class, ethnicity, and ideology.

There are disturbing differences between our major communities in relation to perceptions of the Fijians who became involved in what happened in 2000. The Indian point of view, as articulated so often by the Honourable Leader of the Opposition, appears to be that it was an outbreak of terrorism and law-breaking, plain and simple. Those implicated were criminals, thugs and opportunists. That perception, Mr Speaker, Sir, is far too sweeping and simplistic.

How many times have we heard it said that virtually anyone who visited the Parliamentary Complex in Suva at the time of the hostage-taking was either a terrorist, or complicit in the coup? People went into that compound for many reasons. Some were answering a traditional call based on clan and village loyalties and obligations. Rightly or wrongly, they were hearing the tagi ni taukei, or the Cry of the Fijians; a cry they felt was not being heard. They believed they were standing for indigenous rights. It could be said that they are the victims of a legal system which does not recognise the customary aspect. Others were seeing relatives, or hoped they might be able to exercise a moderating influence. They did not necessarily support the takeover, or the holding of hostages.

One of our leading citizens – a non-Fijian – felt villagers from the interior who came to Parliament at that time identified with the attempts to usurp power because they felt left out and left behind. They had nothing and, therefore, nothing to lose. I do not believe they deliberately embarked on a planned criminal enterprise. There is simply no getting away from the fact that many of those involved were influenced by Fijian customary values.

There was a similar reaction by a lot of Fijian chiefs and their people in 1987 when they backed Fiji’s first coup. I ask the House to consider the situation of the Macuata chiefs who were caught up in the 2000 turmoil. They were called to those barracks because they were chiefs, not because they were criminals. There is a strong indigenous argument that they were there to fulfill traditional obligations, and that they were a moderating influence. They were seen to be responding to the cultural standard of the vanua – the chiefs, the people, and the land – as a cornerstone of Fijian society.

Permit me to mention here, Mr Speaker, Sir, that there is still a legacy of bitterness among the followers of those Vanua Levu chiefs over their treatment by the Military. I am reliably informed they were forced to crawl and violently handled. Some of those chiefs have been convicted and are serving their sentences. Justice has been done. But we are still left with an issue that is of concern to us all because it relates to the long-term peace and stability of our country. I am referring to the continuing undercurrents of unhappiness and discontent among the traditional followers of those chiefs. For the sake of fairness and equality of treatment, it is important that those who ill-treated them must now face justice. No one is above the law. Some of those involved can use the machinery provided through this legislation to ask for forgiveness and clear their conscience.

I anticipate, of course, that our critics will say that I am making excuses for what happened, and that I am condoning the breaking of the law. That is not the case at all. What I am doing is explaining a context which has very real significance for our country. It relates to the clash between democratic principles, which were only introduced in the mid 1960s, and indigenous customary politics and beliefs.

There is an inclination to dismiss this as being of little or no account. Again, Mr Speaker, Sir, this is an example of a lack of understanding of Fijian thinking. These Fijian attitudes and feelings will change. In fact, that is happening right now as people become better informed. There is a growing appreciation of the democratic rule of law, as distinct from customary law. But there is still conflict between the two systems.

We, in Government, have always emphasised that the law laid down in our Constitution, must take its course. We respect the independence of our judicial and law enforcement authorities. We seek a continuation of justice according to the laws of Fiji. There can be no compromise on that. But for the purposes of dealing with the legal issues of 2000, we will embrace a concept of justice more helpful to our wider national objectives.

I would like to here commend the Commissioner of Police and members of the Force for what they have achieved so far in coup investigations. They are doing their best. Inquiries so far, have implicated more than 2,500 citizens. Recent statistics indicated 705 civilians had been convicted and many others were still under investigation. Trials of some politicians have resulted in convictions, and other investigations continue. According to information from the Police, investigations are on-going and include the actions of certain civil servants. Nine Police officers have been charged. Actions have been filed in the Courts by some of the victims for financial compensation. Our law enforcement authorities are being stretched to the limit, and as I have already said, there is unwillingness amongst the public to offer evidence.

From the Government’s perspective, the length of time investigations are taking is hindering our progress towards greater unity as a nation. Wounds are reopened when cases go to Court and there are convictions. Further tensions and resentments are created which inevitably affect race relations. As investigations and Court hearings drag on, with so many still to be concluded, there will be further strain, uncertainty and apprehension. The healing of Fiji will be delayed. We cannot bring the people together, and concentrate all our energies on developing the country, when the agony of 2000 is continuously hanging over us.

There is also a specific legal aspect to this. The Constitution requires that every person charged with an offence, has the right to have the case determined within a reasonable time. People are entitled to ask whether that always happens.

Mr Speaker, Sir, it is time now for the bold, and comprehensive legal approach which we are proposing in this Bill. This approach is increasingly finding favour elsewhere, and is endorsed by organizations such as the United Nations. As in most countries today, our justice system is based on retribution. It is about an eye for an eye, and a tooth for a tooth. Offenders get what is coming to them. They receive their just deserts. What we are proposing to operate, alongside the concept of retributive justice, is a system that goes beyond simply meting out punishment.

Restorative justice seeks to reconcile the victims and the offenders, and their families. It aims to restore human dignity within the community through understanding, and not vengeance, reparation and not retaliation, forgiveness and not victimisation. It is concerned with repairing broken relationships and establishing lasting peace, instead of lasting hurt or conflict. It involves the victim, the offender, and the community. Healing is regarded as crucial, not just for victims, but also for offenders who must be rehabilitated and integrated into society. An underlying theme is that crimes or wrongdoings are violations of people and relationships, rather than offences against the state. Acceptance of responsibility is required before the process of restoration can begin. Victims may use the process to obtain answers, or to express their anger and seek compensation.

Archbishop Desmond Tutu, who was chairperson of South Africa’s Truth and Reconciliation Commission, is a great proponent of restorative justice. It was this principle which guided the historic work of the Commission as it helped South Africa come to terms with its past. Some people at the time were critical of what was proposed and, in particular, argued that the amnesty provisions would encourage crime. But it was pointed out that this showed limited appreciation of the procedure. There were restrictions on what cases qualified for consideration of amnesty. Furthermore, it was a temporary aid applied to a difficult situation.

We identify very much with these comments, and also with Archbishop Tutu’s statement that his country had to balance the requirements of justice, stability, peace and reconciliation. The same can be said of Fiji. It is time for us now to bring a greater degree of closure to a tragic period of our history. We must not forget what happened in 2000, but we must turn our eyes more to the future. We must spur efforts for accomplishing justice and reconciliation, as other countries have done, by taking special measures appropriate to our situation.

The Government has been thinking about this for some time. Members of Fiji’s legal profession might remember that I raised the issue of restorative justice at an International Bar Association Conference at Nadi, in February 2002. I said I thought we should explore this concept, and how it might be adapted to Fiji. We needed to be concerned about regenerating a damaged society. I was interested then in what Archbishop Tutu had to say about restorative justice, and spoke about this. My view was that the reconciliation we required was not just about paying for crime. The perpetrators had to be prepared to express sincere contrition for their deeds. Those who were injured in whatever way, had to be ready to accept that, and forgive and show mercy. I suggested this formula to those legal experts: justice plus forgiveness and reconciliation, equals peace. I will say that again: justice plus forgiveness and reconciliation, equals peace. I asked the lawyers at the conference to discuss reconciliation and mercy as a legal tool. I invited them to employ their vast collective experience and knowledge to consider how the law could be best exercised to help us as a nation emerging from a supreme trial. We had undergone an ordeal of violence and fear, of broken relationships between races, and instability within the Fijian community itself. There was no response at the time to what I said. The lawyers have remained silent on this for well over three years.

Mr Speaker, the House, and perhaps the critics, will be interested to know, that the idea of restorative justice as embraced within Fijian tradition, is actually provided for in the Constitution. Section 186 says Parliament must make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes. In doing so, the Parliament must have regard to the customs, traditions, usages, values and aspirations of the Fijian and Rotuman people. This is an important consideration because it clearly gives constitutional authority for what we envisage.

There are two key parts to the Bill. They are of equal importance, although the critics are largely ignoring the second part. The first establishes an Independent Reconciliation and Unity Commission. The other forms a Promotion of Reconciliation, Tolerance and Unity Council.

The Unity Commission will not be permanent. It is likely to function for just 18 months, with the mandate of dealing with specific aspects of the aftermath of 2000.

The Reconciliation, Tolerance and Unity Council is to be a permanent statutory body with membership representing a cross-section of society. It will progressively take over the role and functions of the existing Council for National Reconciliation and Unity. The new Council will have many obligations including adopting and implementing a national policy on reconciliation, again designed to strengthen unity among the people. It is important then to consider the totality of the Bill, and its two parts, rather than taking a narrow perspective. The Commission is Phase One. The Council will launch Phase Two.

Most of the current criticism is directed at the Reconciliation and Unity Commission with particular focus on the amnesty provisions. I have touched on some aspects of this already. I repeat here, that the principle of immunity from prosecution is already addressed in our Constitution. Immunity clauses from the 1990 Constitution, which were connected to the coups of 1987, were carried through into the current document. They received Parliamentary approval. While they do not have direct relevance for 2000, these clauses, nonetheless give recognition to the principle of immunity or non-prosecution. I have seen claims that the Bill will muzzle freedom of speech. Presumably these allegations are in relation to clause 14. This states that the hearings of the Commission are open to the public, but the Commission will, however, have the powers to hold proceedings behind closed doors if it felt this was in the interests of justice or preventing harm coming to someone as a result of the proceedings being public. Holding some hearings in private is an accepted part of the conventional justice system.

Under the proposed legislation, the power to grant amnesty is vested in the President. His Excellency would not be exercising a presidential prerogative as provided under the Constitution. He would be exercising a statutory power. On granting of amnesty in individual cases the Commission will submit its advice to the President in exactly the same way as the Prerogative of Mercy Commission gives its advice to His Excellency for the granting of a pardon in individual cases.

Mr Speaker, the pronouncements against amnesty create the impression that it is some kind of alien idea to be resisted and rejected at all costs. Well, we did not pluck it from thin air. The principles of amnesty are well known and accepted internationally. They have been applied many times to offences considered to be political in nature, even when these have involved acts of extreme and persistent terrorism. The anti-amnesty campaigners here favour the strict application of punishment as retribution or revenge. There is apparently no room in their thinking for amnesty as an ingredient of restorative justice. They do not believe that the offenders are deserving of any form of mercy and forgiveness.

Let me cite here, Mr Speaker, Sir, the constitutional case in South Africa (Azanian Peoples Organization (AZAPO) and Others v the President of the Republic of South Africa and Others) when the South African Truth Commission Act was challenged in the country’s Constitutional Court in 1996. The Court subsequently handed down a ruling which had direct relevance to the amnesty provision of this Bill. It held firstly that amnesty for criminal liability was permitted because without it, there would be no incentive for offenders to disclose the truth about the past atrocities; Secondly, it ruled the truth might unfold with such an amnesty, assisting in the process of reconciliation and reconstruction; Thirdly, such an amnesty was a crucial component of a negotiated settlement; Fourthly, amnesty provisions are not inconsistent with international norms and did not breach any of the country’s international obligations.

Here in Fiji, to the Fijians, the ideals of restorative justice are not new. They are built into their culture and reinforced by their Christian belief in unconditional forgiveness. In the traditional context, the whole community takes part in finding solutions to problems and imposing sanctions. This is reflected in customary practices such as veisorosorovi, and mataganisau. It is about recognising that a wrong has been committed, and asking for forgiveness. All the parties, the offender, the victim and the whole community, are involved. At the end of it, amicable relationships, dignity and mutual understanding are restored. A new start is made.

Mr Speaker, Sir, I now address some more of the specific aspects of the Bill. In doing so, I re-emphasize that we are not introducing restorative justice as a replacement for the current system of retributive justice. The two systems will operate alongside each other and complement each other. As I have said retributive justice is concentrated on giving punishment for the offence committed. Restorative justice goes beyond that. It aims to reconcile the offender with the victim and the community at large. The foremost objective is to restore harmony in society, which is vital for orderly progress and development. I, again, lay emphasis on the fact that retributive justice treats an offence as a crime against the State. Restorative justice, by contrast, focuses on people and, in particular, the wrong committed against a person. Restorative justice means not only giving justice to the victim but also restoring his or her dignity. The offender admits wrongdoing and asks for forgiveness.

The Reconciliation and Unity Commission will be made up of persons of commitment and integrity. They would be independent in carrying out the Commission’s duties without outside interference. The Commission will also be given a specific time frame to consider and complete the cases that come before it. This will initially be for eighteen months, as I have indicated, but with flexibility for a six-month extension if this is necessary. So, you see the Commission will not be a permanent entity. It is set up for a special purpose and will then be wound up. It will have two special purpose Committees. One of them is a Victims and Reparation Committee. The second is an Amnesty Committee. The Victims and Reparation Committee will consider any reference to it by the Commission. There will be two types of applications. The first is an application seeking a declaration that a person is a victim. The second is an application for compensation.

The Amnesty Committee will hear and consider applications for amnesty. Both of these Committees will submit reports on individual cases they consider to the full Commission. The legislation will provide certain guidelines for the granting of compensation to those declared to be victims. The Workmen’s Compensation Act will be one of those guidelines. This does not mean the Commission will be exclusively bound by the Act. The Act will just be used as a bench mark. To facilitate the payment of compensation, the State is to set up a fund. Questions have been asked on why tax payers should pay for this. The answer is to enable speedy and agreed settlements on compensation to be made, in the interests of the victims and society as a whole. There have been questions about why priority is to be given to amnesty hearings to persons in custody. I make just two points. This is not something we have drafted up especially for our Fiji situation. It is drawn from other legislation overseas. Secondly, those who have been charged and detained also have their own human rights. They are entitled to have their cases dealt with speedily. The same applies to those convicted particularly if the offence for which they have been imprisoned, is accepted as being of a political nature.

I stress Mr Speaker, Sir, that the Commission will have no power to summarily take a case out of the court system. It will have to lodge an application to the Court and it is for the Court to decide on that application. So on that basis, allegations of the scope for interference in the judicial system have no foundation. We will also consult closely with the Office of the DPP and the Commissioner of Police to ensure that nothing is done in this legislation to affect the exercise by them of their independent authority, under their respective legislations. Their express consent will be required for any particular cases to be dealt with by the Commission which might impinge on their statutory powers and authority. The existing Council for National Reconciliation and Unity is to become a standalone independent body rather than an extension of a Government department. It has a number of functions including: to initiate, develop and adopt a national policy for the promotion of national reconciliation; to facilitate, promote and co-ordinate public awareness and education on matters specified in the national policy; to facilitate any implementation of any recommendation of the Tolerance and Unity Commission aimed at promoting and fostering reconciliation, understanding, tolerance and unity among the people of Fiji. The Council will give priority to cultural, customary and traditional means of promoting and achieving unity in a spirit of tolerance and unity. It will have power to facilitate and co-ordinate the making of arrangements and agreements among individuals or groups for promoting tolerance, understanding and unity among the people.

As I begin to close Mr Speaker, Sir, I come back to the provisions for amnesty. I ask the House to consider carefully the issues that will confront someone wishing to apply. Applicants must be willing to give a full and truthful disclosure of all the relevant facts. They will, of course, be testifying under oath. That is a great incentive to tell the truth. If a lie is told, then perjury is committed. If applicants do not give this full disclosure, Mr Speaker, they will not get amnesty. They must serve the rest of their sentence. Certain of those who were convicted, may be prepared to make a clean breast of things. Others who have up to now maintained a silence, for whatever reason, could choose not to come forward. They will keep their secrets and remain in custody, with no amnesty. It is about choices, Mr Speaker, Sir. This legislation relies on voluntary participation by victims and wrongdoers alike. The ordinary criminal and civil processes are left to the Courts. Citizens who do not wish to take advantage of the legal machinery of this Bill are at liberty to pursue their grievances through the judicial system operated by our Courts. It is their choice. There is no question of them being forced to take their case to the Commission. But they might very well feel that it is an alternative that will give them a faster and less costly means to attain justice.

It is stated often that the Bill, by offering amnesty, will encourage future coups. Let me offer some observations on this. A critical responsibility of the Commission is to make recommendations aimed at preventing future upheavals and the violent removal of democratically-elected governments. Fiji has been prone to coups. There are reasons for this. We need to concentrate more than ever before on identifying and isolating those reasons, and then taking action to remove them. We will look to the report prepared by the Commission, in the light of its hearings, to assist in this. I am sure the Commission will make many recommendations, some of which might be legislative. For example, in terms of our security legislation, the best we have at the moment is the Public Order Act. It might be that there is a need for a stronger law to protect our internal security. Let us wait to see what the Commission says about this.

Mr Speaker, Sir, please permit me to dwell a little here on the concept of forgiveness which is one of the principles involved in this legislation. Forgiveness is sometimes difficult. It comes up against some of the strongest human emotions. It’s been said that many promising reconciliations have broken down because, while both parties came prepared to forgive, neither party came prepared to be forgiven. We can put that another way: People may feel there is little need to repent of past actions, and to ask forgiveness for past wrongs. After all, they say, if I am "not to blame", I don’t need to be forgiven. In the Christian tradition, however, and in other faiths as well, forgiveness is central to belief. Being forgiven by God, and learning to forgive, are essential experiences at the heart of the Christian faith. If we do not forgive, we will not be forgiven. When we pray the Lord’s Prayer, the very words Jesus Christ gave us for speaking to His Father, we ask God to forgive us our sins, as we forgive those who sin against us.

There was a most powerful example of forgiveness for all us in the reaction of one of the victims of 2000. Three men were sentenced to life for killing a Police officer and a soldier. The soldier’s widow, Mrs Claire Weleilakeba, said she realised that the only way to gain peace is to forgive. This was a woman whose husband had been shot down in cold blood. But she had forgiven the culprits in the interests of peace, and in keeping with her religious convictions. Her first thoughts, after the sentencing, were for the families of the convicted men. She said her heart went out to them, because they too were victims. For Mrs Weleilakeba, it was not about vengeance and revenge. She had the grace and largeness of spirit to rise above her terrible loss. She wanted peace in her life, and for Fiji. There was no bitterness and hatred in her heart. She had forgiven, and had freed herself. Two soldiers who survived the ambush, which killed Private Weleilakeba, and his Police colleague, were reported as forgiving the killers. The example these citizens gave, should give us all cause to pause and think further about the healing of Fiji, and the place of forgiveness in this.

Achieving reconciliation in our multi-ethnic and multi-cultural society is a continuing process. It must be nurtured all the time and requires broad community commitment. I, again, make the point that the two necessary ingredients for national reconciliation are justice and forgiveness. There must be justice for victims. There must also be a willingness to show mercy to the wrongdoer when that wrongdoer is willing to acknowledge and confess guilt.

This, Mr Speaker, Sir, is the approach contained in this proposed legislation. I recall the inspiring words of our late President and Prime Minister, Ratu Sir Kamisese Mara, as he accepted Fiji’s instruments of Independence on October 10, 1970. He said that in accepting Independence, we were taking on responsibility not only for ourselves but also for each other. This Bill is another step towards our goal of national unity, created in the spirit of mutual respect, tolerance and care. Mr Speaker, Sir, I commend the Bill to the House with the recommendation that it be referred to the relevant Sector Committee to allow for wider public consultations, and for the Committee to report back to this Honourable House in the new session, starting in August. Tuesday, 02nd June, 2005

June 17, 2005

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