The Reconciliation Toleration and Unity Bill 2005, Fiji Islands:
A Bill to Subvert Democracy and the Rule of Law?
Human Rights Advisor, Pacific Regional Rights Resource Team (RRRT)
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
to the Reconciliation Toleration and Utility Bill 2005
chiefs ceded sovereignty over the Fiji Islands to Britain. 1879:
British brought Indian labourers to work on the sugar plantations.
independence, the indigenous Fijian and Indo-Fijian populations
were roughly equal in population.
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he mounted a second coup and repealed the Constitution.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
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.
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
first elections under the new Constitution resulted in Mahendra
Chaudhry, becoming Fiji’s first Indo-Fijian Prime Minister.
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.
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
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.
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