Postdate: 17/ 08/ 2005
I read the statement of the Prime Minister in Parliament about the Reconciliation, Tolerance and Unity Bill published in all three news papers. One wonders what is the point of publishing such a long and expensive statement which not likely to be read by most people. There are some fine quotations from the Bible and a good example of the spiritual basis of reconciliation in this statement. However, there is much I disagree with. I wish to focus only on a few issues. First, there is nothing in this statement on the possible unconstitutionality of certain provisions of the Bill. Any proposed legislation; however well intentioned, must first be consistent with the relevant provisions of the supreme law of the land.
Our legal advisers at CCF say the Bill conflicts with some provisions of the Constitution and these aspects of the RTU Bill cannot be amended to avoid that conflict. I wonder if the Prime Minister and the Attorney General will support a referral of their Bill to the Supreme Court for its opinion under Section 123 of the Constitution? Secondly, the Bill according to the International Commission of Jurists Submission is also in breach of Fiji’s obligations under international human rights laws. The Bill excludes as victims, the immediate family, contrary to the UN Declaration on Basic Principles of Justice. Further, amnesties for gross human rights violations are prohibited under international laws that bind Fiji. Amnesties are also prohibited for individuals who committed crimes that impair the enjoyment of fundamental human rights. The Bill allows this. Fiji is obliged under international law to investigate, prosecute and punish gross human rights violations. The Fiji Bill proposes to free those already convicted and stop investigations and trials of perpetrators who are still to be charged. These are obligations that Fiji had assumed as a member state of the United Nations.
Thirdly, the RTU Bill was conceived without consultation with the main victims of the upheavals in 2000. Members of the deposed Coalition government, people who lost their businesses, farms and relatives of those who lost their lives or were seriously injured. If Mr Qarase really cares about the feelings of the victims, he should have had the decency to have sought their support first for the legislation. Such an approach would have meant honest and constructive dialogue based on expert advice, leading to agreement about the contents of the Bill before its introduction into Parliament. That would have avoided the political and communal divisions that emerged and have now hardened into unyielding confrontation for and against the Bill. The argument that the Government merely exercised its right to introduce Bills into Parliament is not acceptable. This Bill is different in that it is aimed to heal deep hurts of individuals and communities. It goes to the heart of the basis of Fiji as a multi-ethnic nation and our future together. The process of making the Bill should have been based on serious attempt at consensus building reconciliation and unity between our political leaders from the beginning. That is before the introduction of the Bill to Parliament of a legislation. Mr Qarase has engaged in public humiliation of the victims by condemning them for their decision to boycott the Parliamentary Committee considering the Bill. He cannot expect genuine reconciliation to occur when in his public utterances he continues to blame the victims.
This only hardens their belief that the process offered in the Bill is loaded against their interest and intended to treat them unjustly. The victims are entitled to have their dignity respected. The victims also regard the Bill as dictatorial, demeaning and insensitive. Its provisions benefit the perpetrators and promises little that the victims can regard as just to them. These victims will probably not participate in the structures for reconciliation provided in the Bill. I guess Qarase will then still continue to accuse the Fiji Labour Party as being unreasonable and unwilling to reconcile with the Fijian community. This will further contribute to the racial polarization before the General Elections. The Bill appeals to the authoritarian and demanding element of indigenous Fijian ethnic nationalism. It also reinforced the feeling of the Indo-Fijians as victims. The government is offering the Bill as fait accompli – that FLP either must accept it as the only way forward possible towards reconciliation with Fijians who supported the coup. To the Fijians, the government says it is Fijian traditional restorative justice and reconciliation. But in reality there is no provision for that in the Bill Through this Bill, the government demands unconditional forgiveness from the victims to the perpetrators. It says this is the Fijian and Christian basis of reconciliation. Behind that is the threat that if the victims do not express forgiveness through the mechanisms of the Bill, then they are not worthy of any respect or justice. The message is you support this Bill or you are not going to get anything at all. Is that consistent with principles of Fijian reconciliation customs of “matanigasau” and “veiserrovi”? That the party that does the wrong demands unconditional forgiveness from the victims as the price for reconciliation? Under this Bill, the perpetrators are not even required to contribute any form of recompense to the victims as in customary reconciliation.
The state will pay and it is a very small sum. If the Prime Minister were to include himself amongst the perpetrators, because he and most of his colleagues were the main beneficiaries of the overthrow of the Government in May 2000, perhaps he might take a different view. He could actually lead the pursuit of Fijians reconciliation and restorative justice with the victims. The Bill is not needed for this to happen. But he will not accept that he had been a central player amongst those who had done wrong to the victims in 2000. This is the whole problem. Deep down, contrary to his words, the PM and his colleagues still believe that the overthrow of the Coalition Government in 2000 was justified. That is why the Bill provides for grant of amnesty to those who want to confess to the Commission that they were “pursuing political ideals and beliefs”. The ideal and belief in this case was the violent overthrow of a democratically elected government. Yet the Prime Minister rejects the argument that this is justifying the coup on behalf of the perpetrators, and therefore encouraging the “coup culture”. In other words the Governments notion of reconciliation is also based on acceptance by the victims that their overthrow was justified. Another question is who are the perpetrators that Mr Qarase expects to go before the Reconciliation Commission to confess their sins and ask for forgiveness from the victims? And what happens when most of the victims of May 2000 do not turn up to receive the apologies? Will the Commission then still proceed to grant amnesty to all those who claim to have committed politically-motivated crimes in 2000? Under the definition in the RTU Bill, Osama bin Laden could come to Fiji and claim amnesty and protection of the Fiji law because he could argue that his purpose and objective were political and not criminal. Indeed how will the Commission distinguish between a defense of intent to commit politically motivated crime (to be excused) from a criminal intent to merely gain personally from the overthrow of the Government and the events that followed? What is the difference? I have spoken to a good number of the persons who led the overthrow of the FLP in 2000 and who have been released from jail. None of them say what they did was wrong. They have not repented and I doubt they will find the proposed Reconciliation Commission of any use to them. They believe what they did was right and they would do it again if a similar situation arises in future. If the perpetrators believe what they did was justified, how can genuine reconciliation take place with them? As for the families of people who died in the shoot out at FMF barracks, why should they be asked by the Commission to forgive those who caused their loss, and accept as well that the murderers will be freed. And the record of their crimes legally wiped out as if they never happened? Indeed, why should the law completely exonerate the criminals of 2000 but leave thousands of other convicts still having their records preserved. It seems the purpose of legally wiping off criminal records is to enable some to stand again in Parliamentary elections.
After the Appeal Court ruling ordering the retrial of the soldiers convicted in the Court Martial, there are I believe only about eleven people in jail now in coup related offences. May be four of them will want to stand for Parliament again when freed. It will now cost about $1 million in my estimate, for this Bill to be pushed through Parliament. All that expenditure for the freedom of 11 men serving court sentences. END