Postdate: 5/ 11/ 2005
The Fiji Times Editorials headed “If only” (FT 05/05/05) and “Political Correctness” (04/05/05) on the issue of the Government’s proposed Reconciliation and Unity Bill were excellent in outlining the background issues of what happened to the victims in 2000 and how the proposal now threatens the credibility of the rule of law in Fiji. It will be recalled that only recently when the news media first published information about the intention of the Government, the Prime Minister and Attorney General Qoriniasi Bale both denied it. A.G. Bale in fact blatantly lied, saying he had no knowledge of the proposal. And then two days later the Prime Minister said this was the idea of the SDL Party, and not because of pressure from the CAMV. This is an indication that perhaps more remains hidden and still to be revealed if the Government Billl is passed.
The Prime Minister’s statement is confusing at least on a number of issues. On the one hand he says the proposed Bill will not grant pardons to persons already convicted but, on the other hand he says the proposed Commission will recommend to the President “amnesty “in cases of violation of human rights judged to be politically motivated”. Unconstitutionality The Concise Osborne’s Law Dictionary say “amnesty” is a pardon for offences by an Act of Parliament. So in effect pardon and amnesty amount to the same thing in effect. Under Section 115 of the Constitution only the Prerogative of Mercy Commission has the power to recommend to the President pardons or conditional pardons for convicted offenders. The distinction between pardon for convicted offenders and amnesty for those who merely volunteer to confess and apologize to the proposed Commission (without conviction) is basically a technical one to try and get around the Prerogative of Mercy Commission. Legal advice that CCF has obtained says that the proposed Reconciliation and Unity Bill may be inconsistent with the Fiji Constitution on three grounds. First, Section 115 of the Constitution prevents the President from exercising the power to grant pardons, except on the advice of the Commission on the Prerogative of Mercy.
Secondly the proposal to grant immunity from prosecution for individuals who committed coup related offences but have not been charged or convicted may constitute an unlawful letter upon the discretion of the Director of Public Prosecutions to prosecute offenders. Thirdly the grant of pardons or immunity to individuals, based on the proposed Commission’s Judgment that the offences were politically motivated may be in breach of Section 3 of the Constitution that guarantees equality before the law and defines the categories of unfair discrimination. Furthermore, how will the Commission be able to separate “political motivation” and, the senses of “performing traditional obligations”, from criminal intention in an act that constitute serious violation of human rights? Attorney General Bale has already admitted publicly this difficulty in his proposed legislation. This also raises the question why a claim of political motivation should be an excuse for a criminal act, or “serious violation of human rights” for that matter? We are still to learn what category of human rights violations will be covered by this Bill, and, also what the word “serious” means in law. Commision to Release Prisoners? Persons already convicted and sentenced for coup related offences had an element of political motivation. Both Prime Minister Qarase and A.G. Bale have not ruled out the people now in prison having access to the Commission so they can also be pardoned under the legislation. Last week a person who was already widely known to be a prospective candidate of the SDL in a vacant constituency told me he was not going to be a candidate because he had been told a former MP now in Jail, is going to stand for his Constituency again! Indeed there are a few people now in Jail that want release so they can stand for the SDL or CAMV in the next Election! It seems to me that the Government wants this Commission not just to stop further investigations and prosecutions, but also to enable those now under sentence or in Jail to confess to the proposed Commission the political motivation for their crimes and therefore be recommended for pardons, ostensibly because their intention was “political” rather than criminal! Fijian Restorative Justice? Prime Minister Qarase refers to the concept of “restorative justice” as part of this alternative approach and he claims this has been endorsed by the United Nations. He says (quote): “It involves the victim, the offender and the community.
The underlying theme is that crimes or wrong doing are violations of people and relationships, rather than offences against the State” He also says restorative justice is not new, it is built into Fijian culture as practice of “veisorosorovi” or “matanigasau”. There are some important elements of Fijian restorative justice that Qarase’s statement fails to mention and which are also important to the incorporation of this in the modern criminal justice system. First of all, in the Fijian culture, matanigasau or veisorosorovi are only undertaken after there has been prior agreement between the perpetrators and the victims, and especially the latter, that such a procedure is appropriate, to avoid rejection, shame and deepening the injury. It also means acceptance by the perpetrator that a serious wrong had been committed, that had damaged relations between the individuals, the families and communities. The offender cannot force the offended to accept matanigasau. The spirit of this custom was not observed by Government in the Reconciliation Week programme last year. It’s proposed Reconciliation and Unity Commission is also not the product of reconciliation with the victims. It has not consulted the victims first. The Prime Minister arguing that restorative justice in the traditional sense was reinforced by the Christian sense of forgiveness without condition is misleading and misses the point. Justice is what the victims wants so that forgiveness can be achieved individually and communally.
If the victim does not believe that the process of reconciliation will achieve justice justice for him, his family and community, then neither forgiveness, healing of the hurt and mending of relations will be achieved. Contrary to the Prime Minister’s claim, restorative justice in the modern context is not a replacement alternative to the Criminal Justice system, especially major crimes and serious human rights violations. In countries where restorative justice is pursued as a policy alternative, the Police and the Courts remain to enforce the law when the restorative justice system fails to achieve the objective of reconciling and mending relations. The idea of a Truth and Reconciliation Commission was first advocated by the CCF and the NGO Coalition on Human Rights in June 2000 but no political party, including Qarase’s Interim government, took it up seriously as an alternative then. Why now? In 2000 the CCF sought the advice of Pius Langa, then Commonwealth Envoy to Fiji, on the idea of a Truth and Reconciliation Commission
He said the Truth Commission was appropriate for South Africa but not for dealing with coup related offences in Fiji. Justice Langa said all that is needed here is an independent Judiciary and effective investigation and prosecution by the Police and DPP, enforcing the rule of law. The proposal of the Government has been rejected by all political parties as merely a General Election ploy to win votes and maintain its coalition with the CAMV. This is understandable because the Government had made no attempt to consult these other parties, representing the victims, first for their support before the Bill is introduced. The Government could have avoided the slant being given to the initiative had it consulted the Opposition FLP and made it a bipartisan Bill. Not one religious organization from the Indian community has been consulted. Finally what incentive is there for those who are still being investigated and have not been charged yet to agree to go through a process of public confession and reconciliation with the victims through the Commission? The lack of corroborative evidence to charge them? In what sense did funding of the May 19 activities, or plotting of the overthrow behind the scene, constitute serious violation of human rights? While the world currently is concerned about politically motivated acts of terrorism and human rights abuses, the Government of Fiji with this Bill, (so far as we can learn from the Prime Minister and the Attorney General’s statements) is intent on introducing a law that can be used to grant amnesty to terrorists. Civilized law has never allowed legal excuse for ideologically motivated or justified criminal acts. Fiji, if this Government has its’ way, will probably be the first country to allow this under the guise of restorative justice and observance of traditional obligations to the Chiefs.