Subverting Democracy

Last May, the Fiji government tabled the Reconciliation, Tolerance and Unity Bill 2005. The bill has some laudable aims but its main political objective is to secure amnesties for 2000 coup leaders and supporters, mostly indigenous Fijian nationalists currently sentenced for treason and other coup-related crimes. The tabling of the bill has created huge tensions in Fiji. NGOs, civil society and even conservative groups such as the Fiji Law Society and the Fiji Institute of Accountants have lobbied against the bill. They argue that the release of such prisoners will reinforce the coup cycle in Fiji and will send the wrong message to a nascent democracy that to remove democratically elected governments illegally is acceptable. The message in this for the rest of the fragile Pacific region is equally ominous.

The bill sets up a commission and two subordinate committees, one to grant reparations to victims and the other to grant amnesties. Members are appointed by the president upon the advice of the prime minister after "consultation" with the Leader of the Opposition. Victims of "gross violations of human rights" are eligible to apply for reparations. The maximum amount is F$23,000 for physical injury or death and is enforceable against the state, not the perpetrator.

The bill is objectionable on many human rights grounds and is in violation of the 1997 Constitution. It undermines the separation of powers doctrine 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 Prerogative of Mercy Commission. It seeks also to deny constitutional rights of access to the courts of law by all victims of crimes.

Fiji citizens have worked hard to bring back respect for the rule of law and democracy as the preferred method of governance. The bill undermines the rule of law as the law of treason will be rendered ineffective for the designated period if the bill is passed. The effect of the amnesties on coup supporters will be to sanction the illegal actions of criminals who remove democratically elected governments by the power of the gun and who attempt to illegally abrogate the Constitution. If the bill is passed, there will be no effective legal deterrents to coups.

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. The bill perpetuates economic and class discrimination because it privileges criminals who commit politically motivated crimes (some are chiefs and prominent party members) over crimes that are motivated for example out of poverty by commoners and ordinary Fijians. It sanctions race-based crimes by forgiving crimes committed by indigenous Fijians (the perpetrators of crime during the designated period) against non-indigenous Fijians. Ultimately, the bill will also weaken, not strengthen, 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 again tabled in Parliament having undergone 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 groups in any potential amendments. Fiji has an obligation under customary international law to effectively investigate the facts, to prosecute those responsible for the violations or crimes and to punish them appropriately. The bill is in violation of universal international human rights standards contained in the United Nations core human rights 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?

Imrana Jalal is a human rights lawyer, a founding member of the Fiji Women's Rights Movement (FWRM), the Human Rights Adviser at the Pacific Regional Rights Resource Team (RRRT), a board member of the Geneva-based International Council on Human Rights Policy (ICHRP) and a former Fiji Human Rights Commissioner.