The Reconciliation Toleration and Unity Bill 2005, Fiji Islands: A Bill to Subvert Democracy and the Rule of Law?

Beyond the postcard image of white sand and shady palms, the reality of the Pacific is less than picturesque. Fiji has experienced three coups since independence and the Solomon Islands erupted into civil war in 2000. The combination of fragile and new democracies, coupled with hierarchical chiefly systems is often a recipe for human rights violations.

Background to the Reconciliation Toleration and Utility Bill 2005

1874: Fiji chiefs ceded sovereignty over the Fiji Islands to Britain. 1879: British brought Indian labourers to work on the sugar plantations.

1970: At independence, the indigenous Fijian and Indo-Fijian populations were roughly equal in population.

1987: After 17 years of rule by the indigenous, chiefly backed Fijian Alliance Party, elections brought the first Indo-Fijian majority government to power. Tensions increased between indigenous Fijians, largely heading the government and the military sector, and the Indo-Fijians, perceived to be dominating the economic sectors. Backed by hard-line Fijians nationalists, Lieutenant Colonel Rabuka staged the first military coup in the Pacific in May. Rabuka declared Fiji a republic and withdrew the country from the Commonwealth. In September, he mounted a second coup and repealed the Constitution. A law was passed by decree of the military backed unelected interim government, granting a full pardon and amnesty to Rabuka and his supporters.

1990: Rabuka imposed a constitution that guaranteed indigenous Fijians a perpetual parliamentary majority by reserving 37 of the 70 seats in the House of Representatives for them.

1997: Parliament unanimously passed a constitutional amendment ending the guaranteed parliamentary majority. This amendment gave equal rights to indigenous Fijians and Indo-Fijians, however the majority of seat allocations are based on race. The 1997 Constitution contains a progressive Bill of Rights that allows the application of international human rights conventions where relevant. The Constitution provides protection against all types of discrimination and established a Human Rights Commission.

1999: The first elections under the new Constitution resulted in Mahendra Chaudhry, becoming Fiji’s first Indo-Fijian Prime Minister.

2000: On 19 May, Fijian supremacists led by George Speight, took the Prime Minister and his party hostage, some for 54 days. Following the coup, unrest took hold for many months and Indo-Fijians suffered ethnically motivated attacks. There were riots and looting and a number of people were killed. An interim government was installed by the military, and rights to free speech and movement were temporarily suspended. Curfews were imposed. In November 2000 there was an attempted mutiny in the military and some army officers attempted to kill Commander Bainimarama who had secured the release of the hostages. During 2000 and 2001 there were attempts to redraft the Constitution. The attempted abrogation of the 1997 Constitution was successfully challenged in the Courts by civil society (Chandrika Prasad v The Attorney General of Fiji & Ors, 2001, Court of Appeal), paving the way for general elections in late 2001. The interim government permitted election observers from the UN, Commonwealth and the European Union.

2001: The general election in September saw the return of the Interim Prime Minister, Laisenia Qarase, whose party (SDL) rules together with a hard line nationalist coalition partner (CAMV), set up by Speight supporters. Observers stated that the elections were free and fair.

2006: There is stability and the rule of law is generally complied with. Many of those who committed treason or coup-related crimes are serving prison sentences including Speight, prominent members of the Government coalition parties and some traditional chiefs. Some have been released. Some prosecutions are still pending. General elections are due in September.

The Reconciliation Tolerance and Unity Bill 2005

In May 2005 the Government tabled the Bill, which created huge tensions. It has some laudable aims but its main political objective is to secure amnesties for coup makers and supporters. Civil society groups have lobbied against the Bill arguing that the release of such prisoners will reinforce the coup cycle and will sanction the illegal removal of democratic governments.

The Bill sets up a Commission and two subordinate Committees, one to grant reparations to victims and the other to grant amnesties. The President, upon the advice of the Prime Minister, appoints members of these various bodies after “consultation” with the Opposition. Victims of “gross violations of human rights” are eligible to apply for reparations.

The Amnesty Committee can grant amnesties via the Commission and the President to those who make full disclosure of their “political” crimes which must amount to gross violations of human rights – an excessive violation as declared by the Commission. A person may apply on the grounds that the crime was “associated with a political objective, and not purely criminal in content” and was not committed out of personal malice or gain. The crimes must fall within the designated period of 19 May 2000 to 15 March 2001. Priority is to be given to those already in custody. The Commission can require the Court to suspend civil and criminal proceedings.

The Amnesty Committee recommends whether amnesty should be granted. The Commission is not to be subject to control of any other authority, not even a court of law. The bodies will operate for 18 months and may be extended for another 6 months. The Bill states that – “The President shall act on the advice of the Commission as to whether amnesty should be granted”. Unlike South Africa, at no time is a perpetrator required to face a victim. The Commission grants “forgiveness”, not the victim. Indeed, the Bill cannot compared to that of South Africa whose reconciliation law was born out of entirely unique circumstances.

The Effect of the Bill on Human Rights, Democracy and the Rule of Law

The Bill is objectionable on many human rights grounds and violates the Constitution. It undermines the separation of powers by removing the power of the Director of Public Prosecution to institute and withdraw criminal proceedings and the Judiciary to decide on guilt and punishment. It removes the discretion of the President to grant pardons under the Mercy Commission. It seeks to deny constitutional rights of access to the courts of law by all victims.

Fiji has worked hard to bring back respect for the rule of law and democracy. The Bill undermines this respect, as the law of treason would be rendered ineffective in Fiji for the designated period. The amnesties on coup supporters will sanction the illegal actions of criminals who remove elected governments by the power of the gun and who attempt to illegally abrogate the Constitution. By pardoning Rabuka in 1987, the coup cycle gained its impetus. If the Bill is passed there will be no effective legal deterrent to coups that the Prasad decision attempts to reverse.

The Bill will seriously erode the nascent but growing culture of human rights as it seeks to protect perpetrators from the grossest forms of human rights violations. Internationally sanctioned amnesties do not permit amnesties for gross violations of human rights. It perpetuates economic and class discrimination because it privileges criminals who commit politically motivated crimes (some Chiefs and prominent party members) over crimes that are motivated, for example, out of poverty by ordinary Fijians. It sanctions race-based crimes by forgiving crimes committed by indigenous Fijians against non-indigenous Fijians. The Bill will also undermine the work of organisations that are attempting to build race relations using genuine principles of restorative justice.

The Bill also encourages terrorism because it seeks to excuse politically motivated crimes. Ultimately the Bill will also weaken indigenous rights. Placing indigenous Fijian rights over the rule of law weakens Fijian rights itself. The rule of law is necessary to secure Fijian rights.

The Bill will be tabled in Parliament in 2006 having undergone some public consultations. The powerful Fijian Great Council of Chiefs has given cautious support to the Bill but has asked the Government to “consider” the views of civil society. The Bill is in direct violation of all major universal international human rights standards contained in the United Nations core conventions, all of which, acting in concert, promote non-discrimination, equality, democracy and the rule of law. Where is it written that in the far off Pacific Islands live a lesser people who deserve less than that?