The Commander and the White Lady

By an Anonymous Contributor
Special to Intelligentsiya,

“In January 1979, Bainimarama embarked on the Chilean naval training ship, the Buque Escuela Esmeralda, which spent six months circumnavigating South America. On his return to Fiji in August, Bainimarama was appointed Executive Officer of HMFS Kiro.”

The passage from the Commander’s entry in the on-line encyclopedia, Wikipedia, is unremarkable, unless one should click on the hyperlink “Buque Escuela Esmeralda” (pictured). Then it becomes interesting.

"That immediately after the military coup of September 11, 1973, the training ship, "Esmeralda" was utilized by the Chilean Navy as a center of detention and torture in Valparaíso harbor has been incontrovertibly demonstrated by the Inter-American Commission of Human Rights of the OEA (report 24/Oct/74), Amnesty International (report AMR 22/32/80), the United States Senate (resolution 361-16/June/86), and the Report of the (Chilean) National Commission of Truth and Reconciliation (Third Part, Chapter I, Section 2 f.2.). The testimonies that the "Esmeralda" was effectively used as a floating chamber of torture are many and in mutual agreement."

Following the military coup on 11 September 1973, the military junta which seized power immediately embarked on a program of systematic and large-scale repression, exerting absolute control over the resources of the State, and using these to commit human rights violations. Constitutional guarantees were suspended through more than 3,500 decree laws and four "constitutional laws" passed over several years. Congress was dissolved, and a country-wide state of siege declared, under which hundreds of people were detained and countless more extrajudicially executed, a state policy of "disappearance" put in place, and torture was used systematically.

In October 1974 the Inter-American Commission on Human Rights published a report on a visit to Chile which had taken place between July 22 – August 2 of the same year, and less than a year after the events which it investigated. Members of the Commission had been able to visit a number of facilities and to speak to the inmates, male and female, some of them minors, and from all social classes and backgrounds.

In the course of interviews with prisoners, both in the capital city, Santiago and outside the capital, in the north and in the south, of Chile, the Commission noted that of the large number who stated that they had been subjected to torture, in some cases brutally with visible marks remaining, most of them asserted that the torture was not applied in the establishments where they were or had been detained, but in other places where in the course of interrogations, a wide range of physical and psychological torture was employed. The Commission lists five locations which “[w]ith significant unanimity, in widely-separated establishments” were places used for torture. The fifth in the list is “e) The Navy ship “Esmeralda”.” (A stark white sailing vessel).

Substance was given to those accounts by the fact that “that similar descriptions have been given of those places by prisoners widely separated from each other.” The possibility of collusion and fabrication could accordingly be excluded. Both men and women were tortured, in the case of women in the form of sexual abuse including repeated and multiple rape and humiliation. Although the Commission members had been promised identification cards which would have enabled them to carry out surprise visits, these were not forthcoming. In a number of cases there was evidence of the establishment having been ‘sanitized’ immediately prior to their arrival. Finally when members of the investigation tem expressed their intention to visit the five installations identified as places of torture, they were told that such a visit could not be made, because the installations had recently been declared “military areas”. As the Report noted:

"This refusal prevented completing a task of utmost importance, namely, comparing the descriptions, which agreed with each other, of the alleged torture rooms, with the various locations in the buildings mentioned."

From all of this it is clear that by the end of 1974, that is to say five years before the Commander’s arrival, if the dates in the Wikipedia are correct, the reputation of the “Esmeralda” as a place of torture was well established. The repressive Pinochet regime was to last for sixteen years until 1990. When the ship ceased to be a place of torture is unclear. According to the Wikipedia it continued until the regime collapsed. According to an Amnesty International Report it was not used for that purpose beyond 1973. The second date may be the more reliable.

However, as the second Report of the Commission, dated 28 June 1976 recorded, while there had been some quantitative reduction reflected in a reduction of complaints of human rights abuses, extrajudicial killings, disappearances, torture, and other serious human rights abuses continued in substantial numbers throughout the period covered by the report.

By the time of the Third Report dated 11 February 1977, the non-cooperation of Chilean authorities rendered the task of the Commission virtually impossible. The Report noted that although the number of denunciations of homicides imputed to Chilean authorities through an abuse of power had declined, in the cases being processed in the Inter-American Commission on Human Rights, the Chilean Government, while not denying the events, contended that the action taken by the authorities had been justified. However the Government did not provide the evidence needed by the Commission to make a judgment identifying responsibility for those deaths, which the claimants impute to the Chilean authorities. The Commission continued to receive denunciations with regard to individuals detained, missing or presumed dead. These findings were confirmed by the Truth and Reconciliation Commission, (the “Rettig Commission”), set up after the fall of the dictator Pinochet. So much for the country as a whole. It is now time to turn to the specific issue of the “Esmeralda”.

The Amnesty International Report, ‘Torture And The Naval Training Ship The "Esmeralda"’, published in 2003, confirms that following the military coup on 11 September 1973, the military junta which seized power immediately embarked on a program of systematic and large-scale repression, exerting absolute control over the resources of the State, and using these to commit human rights violations. Constitutional guarantees were suspended through more than 3,500 decrees and four "constitutional laws" passed over several years. Congress was dissolved, and a country-wide state of siege declared, under which hundreds of people were detained, and countless more extrajudicially executed. A state policy of "disappearances" was put in place. Torture was used systematically.

With the return to civilian rule in 1990, two bodies were created at different periods to gather information establishing the truth about "disappearances", extrajudicial executions and deaths resulting from torture by State agents. The combined findings of the two Commissions officially documented 3,197 cases of victims of "disappearances", extrajudicial execution and death resulting from torture. This figure did not include the victims of torture who survived their ordeal. According to the Rettig Report, published in March 1991, aboard the "Esmeralda", a special group of Navy officials "installed a unit for the interrogation of detainees. Such interrogation included, as a general rule, ill-treatment and torture". Over the years, Amnesty International has documented and published the accounts of a number of victims tortured on the "Esmeralda". Torture techniques included the use of electric prods, high-voltage electric charges applied to the testicles, hanging by the feet and dumping head first in a bucket of water or excrement.

It is only recently that the Chilean Navy has admitted that detainees were in fact tortured. The Navy’s Admiral Miguel Ángel Vergara said in 2004 that the navy “profoundly regrets” the abuses. However, Vergara did not acknowledge, that the Navy as an institution was at fault, saying, “Those personal and ethical responsibilities are strictly personal.” However in May 2006, the Navy’s new leader, Admiral Rodolfo Codina Díaz, conceded in an interview with La Nación that it was not just a matter of personal responsibility on the part of those responsible, and that there were orders from direct supervisors. However, he continued to deny that the order came from highly ranked superior officers.

While there is no evidence that such conduct aboard the “Esmeralda” continued up until January 1979, it is likely that at least some of those involved were still serving on the “Esmeralda” at the time of Bainimarama’s claimed arrival, and almost certain that most, if not all of them were still serving officers in the Chilean Navy. It is not plausible that, if he did not know of the reputation of the vessel before his arrival in Chile, a little short of his 25th birthday, he did not learn of it shortly thereafter. By the end of 1978 the status of the “Esmeralda” as a centre of detention and torture, at least in the immediate past, was well established. While such abuses may no longer have been occurring aboard the vessel, they were certainly occurring ashore. The Rettig Commission found evidence of extra-judicial killings by government agencies, and “disappearances” occurring well beyond the period of Bainimarama’s stay in Chile. This gives rise to the obvious question: why was a young naval officer sent by Fiji for training in a Spanish-speaking country with a current and notoriously appalling human rights record? There is no obvious answer.

A feature of the present coup is the existence of physical and psychological abuse of those unlawfully taken into detention by the RFMF. Few have spoken of their ordeal. Most have not, presumably because of threats of similar treatment of family and associates. This was not a feature of the Rabuka coup in 1987, where there were unlawful detentions, but little if any serious mistreatment of detainees. There has never been any suggestion that Rabuka has been involved in physical mistreatment of any kind. Bainimarama, on the other hand, notwithstanding denials by militarily compliant police officers, remains a person of interest in the investigation of the killing of members of the CRW unit, some of whom had attempted to oust him from command, and possibly kill him in October 2000. There is evidence that he was present in person when at least one detainee was assaulted and humiliated. Far from acting to prevent such abuses by his subordinates, if he has not encouraged them, he has at least condoned them.

As a consequence of the making of a recent Canadian documentary, directed by a Chilean refugee from the excesses of the Pinochet regime, titled “The Dark Side of the White Lady”, and featuring interviews with survivors of torture aboard the “Esmeralda”, and relatives of those who did not survive, the vessel’s history and that of its officers is again a live issue in Chile. The events aboard in 1973 are also the subject of a judicial investigation. However, in an interview published in January this year one of the survivors, Professor Sergio Vuskovic Rojo, expresses his disappointment that the Catholic Church has not become more involved in the lawsuit, an omission which he finds particularly puzzling as one of its priests, Father Michael Woodward, was tortured to death aboard the “Esmeralda” He concludes: “I am not very optimistic about the issue of this lawsuit.” As with the events aboard her in Chile in 1973, in Fiji what the Commander knew, when he knew it, and what he learned from it when training in Valparaiso and aboard the White Lady. may remain yet another dark secret. However, recent events in Fiji, including criminal acts of detention, beating, and humiliation, appear to demonstrate that he learned something to pass on to his subordinates.

Condolences for Rabaka

The tall, beautiful and bold
As the relatives of Sakiusa Rabaka prepare to bury the 19-year-old on Friday (March 2) youths around the country mourn the young man.

While members of the Young Peoples Network try to meet with interim ministers in the hope that young people will spared the brutality dished out at military installations nationwide, an email from another Nadi youth looks at the happy boy Sakiusa was.

Writing on behalf of her family, Amanda Edwards sent condolences to the friends and family of mourning the death of a person she described as "definitely one on the most funniest and awesome guys i was eva blessed to hav known. Even thou you arnt wit hia us physically we know that your soul will live amongst us for eva boy!" (sic)

Young Mandee remembers Sakiusa from the bus ride home from school and said he was the type of boy who would always "put on that lovely smile" for all to see.

"Yep! boy i can still see that full set of teeth, today. We spent short days together but everyday i'd cherish till i meet you again, RABAKA."

"Will luv you forever as a friend and as a brother."

Anger mounts over death with calls for Shaista Shameem’s head

Anger has began to mount among the population – at least as visible in the blogosphere – over the death of yet another civilian at the hands of soldiers.

Also mounting are calls for the head of the Fiji Human Rights Commission director, Dr Shaista Shameem.

On Intelligentsiya, an anonymous writer, in response the post of 19-year-old Sakiusa Rabaka’s death from head injuries sustained after he was bashed up by soldiers in Nadi, says, “In all my years growing up in Fiji, I have heard of such stories happening elsewhere.... stories of people being taken by military personnel, authorities and tortured and treated inhumanely.”

Another anonymous writer says: “The question for the military is why they are condoning these acts. (Bainimarama) cannot distance himself from this brutality.”

The writer goes on to say, “I hope that those soldiers who are responsible do the honourable thing and resign their commission, speak the truth and take the consequences like a man.”

On Fiji Village Talk forum, a frenzy of messages – some vulgar – have been posted under a string called “Shaista Shameem must resign!” most posters say Shameem should bow out now.

A poster nicknamed HighCommander begins the topic: “Shaista Shameem is no longer capable of exercising absolute independence in her role as the executive head of the Fiji Human Rights Commission. Her recent comments about the EPG report and the largely irrelevant objections that she made were absolutely incredible. It certainly was not worthy of an executive of a supposedly independent organisation. She has clearly demonstrated that she cannot independently and dispassionately assess matters that affect FHRC. Time to step down, Shaista!”

Travp says: “No let her stay. She’s so totally crapped on the reputation of the FHRC that it will no longer hold any credibility as an institution no matter what. The whole organisation will need to be reconstituted under some different name. It's lost credibility domestically and internationally. Feed her a bit more wine and cheese and let her wallow in it.”

And some news from Intelligentsiya collaborator Keep-the-Faith: “Take heart good people, there is a major exodus in the FHRC - 4 or 5 at last count within 3 weeks. Good on you guys for making principled exits!! As for the remaining suckers ---- time is of the essence and each passing day taints you more.”

Blood on their hands

Interim Labour Minister Bernadette Rounds-Ganilau has said she is “devastated” at the death of a 19-year-old youth who was assaulted by soldiers and who she visited while he was in hospital.

In a message to youth activist Peter Waqavonovono, who has been campaigning against military human rights violations and who was himself assaulted by soldiers on Christmas Eve, Rounds-Ganilau said Sakiusa Rabaka’s death should not have happened.

“I truly am sorry, in fact I'm devastated. It shouldn't have happened and this cannot happen again,” said Rounds-Ganilau. She said interim Attorney-General Aiyaz Sayed-Khaiyum would make a statement on the death on behalf of the interim government.

Waqavonovono told Intelligentsiya in an email today that he has been “bombarding” Rounds-Ganilau and interim Youth Minister Adi Laufitu Malani with “requests to do something” about the continued abuse of human rights by the military.

“Human rights abuses must stop,” Waqavonovono said. “Most citizens taken into military custody are youths and youths are the vulnerable members of society. And during these times youths should be consulted and not abused and humiliated.”

“I consider Sakuisa a hero. And for generations to come he will be remembered
for what he went through and how he followed through till the very end. I have been touched by his story right from the start. When we visited him in the hospital, I thought that he was in a bad shape, but he had a strong will.”

Sakiusa’s story was first reported on Intelligentsiya. He was arrested by six soldiers and a policeman on January 28 for what the police said was possession of marijuana and taken to the army barracks in Nadi where they were made to strip naked, carry heavy sacks and run up a hill. All the while they were being beaten.

Sakiusa returned home early the next morning badly injured and later in the week started developing headaches. He was taken to Nadi hospital, then Lautoka and then to Suva’s Colonial War Memorial Hospital where he underwent brain surgery.

He returned to Nadi last week after he was discharged. But on Saturday he collapsed while with friends and was taken to Nadi hospital where he died. His death was also first reported on Intelligentsiya late on Saturday night.

Sakiusa’s mother, Alanieta, before his death and during his admission in hospital that he was “at the wrong place at the wrong time” and was about to start a course in hospitality studies.

“Yet another murder…the killing continues,” somebody wrote in a comment on Intelligentsiya. “No prizes (for) what Berandette will now say when ‘sorry’ was all she could manage when responding to the senseless beatings this young man endured at the hands of RFMF rogue thugs who dare still call themselves soldiers.

And finally, from a poster claiming to be Sakiusa’s brother: “Thank you for sharing my brother's story. We his family around the world are able to know the loss of our beloved brother. I hope that the citizens of Fiji will come out and share their stories (so) that it may end the exploitation of human rights and bullying tactics by the military.”

Sakiusa’s death brings to two (publicly acknowledged) the number of people who have died at the hands of military personnel.

Nimilote Verebasaga of Nakaulevu Village in Nakelo, Tailevu was delivered dead to the army hospital at Queen Elizabeth Barracks in January after being badly assaulted.

Mainstream media catch on

Reactions to Intelligentsiya's posting of international lawyer James Crawford’s opinion on the legality of the appointment of Justice Anthony Gates as acting Chief Justice by the military-installed interim regime have began to trickle into Fiji’s mainstream media.

Legend FM news reported on Saturday that interim Attorney-General Aiyaz Sayed-Khaiyum said Crawford’s opinion originated through the “misguided” direction from the anonymous Fiji lawyers who asked for his opinion.

Also on Saturday, the Fiji Sun in an article on Page 3 reported the contents of Crawford’s report first posted on Intelligentsiya on February 21.

Titled “Academic says CJ unconstitutional”, the report written by Cheeriann Wilson led off with Crawford’s pronouncement that the process of Gates’ appointment was constitutionally flawed.

The Fiji Sun report even carried word-for-word portions of Intelligentsiya’s posting introducing Crawford, without crediting the blog.

Over the week, several different aspects of Crawford’s report have been repeated in the local media.

Crawford’s opinion has been downloaded more than 25 times since Intelligentsiya posted it on February 21.

On the Intelligentsiya blog, comments have also flowed in about Crawford’s legal viewpoint. The majority of people commenting have applauded the legal opinion, while some have accused him of glossing over war crimes committed by the United States, Australia and the United Kingdom over the war in Iraq and the nuclear programmes of the US and UK.

Somebody sympathetic to Crawford’s legal stand said: “I confess that I am no expert in legal opinion but if Crawford's comment is something to go by, I'd like to suggest that we do something constructive out of it.”

A sceptical poster said: “If it is convenient for an overseas legal expert to adjudicate Fiji's situation, then it is appropriate for Fiji to judge Crawford's perception on real abuses of international law.”

Meanwhile, in a rather confusing story on Page 4 of Saturday’s Fiji Times headlined “State of Emergency comes to an end”, an un-credited reporter writes that a legal notice (The Government Gazette) by the interim government on February 12 says the state of emergency was cancelled on February 4.

Yet in the following paragraphs its quotes interim Attorney-General Sayed-Khaiyum as saying that President Ratu Josefa Iloilo declared the Public Emergency Regulation active from February 5.

Presumably, what the article is talking about is the extension of the “state of emergency” period, which the interim administration is using as justification for the limiting of citizens’ fundamental rights such as free speech and freedom of association (public sector unions have been warned against strike action over unsettled grievances with the state on the grounds that they would be in breach of the regulation).

Our Condolences...

Intelligentsiya extends its sincerest and heartfelt condolences to the Rabaka family who tonight lost their son, Sakiusa Rabaka.

Sakiusa, 19, was recovering from surgery at home after he was detained along with his friends and brutally assaulted by soldiers on January 28.

He had returned to Nadi after an operation in Suva and was with friends when he collapsed. He was taken to the Nadi hospital but died from what his mother said was brain haemorrhage.

Intelligentsiya first reported Sakiusa’s case on Friday, February 16, but it was not reported in the mainstream media (as far as we know), although Fijilive did a follow-up report on Monday in which they named Sakiusa and quoted his mother.

Intelligentsiya also sought comments from interim Labour Minister Bernadette Rounds-Ganilau who visited Sakiusa while he was in Suva's Colonial War Memorial Hospital for brain surgery.

Sakiusa's mother Ala had asked Rounds-Ganilau to visit them and the interim minister later filed a report on his case with army spokesman Major Neumi Leweni.

SUNDAY UPDATE: Fijilive has followed up the story of Sakiusa's death quoting his mother as saying "soldiers killed my son" .

"He was just having a good time with some of his friends when he suddenly collapsed and started having convulsions. His wound opened. He began bleeding again. We rushed him to hospital where doctors tried to revive him, but nothing could be done...we lost our beloved son," Fijilive quoted his mother as saying.

Fiji TV carried still images of Sakiusa's injuries after he was released from the Nadi military barracks and a heartfelt plea from his mother, Alanieta, for the military to stop brutalising the nation's youth.

Watch this space!

Intelligentsiya is preparing to break a story regarding the military.

We are trying to confirm our story from independent sources before posting it.

Check back here later.

There are spies among us…

It should not have been a surprise, but Fiji’s military has admitted to using government vehicles carrying private number plates and having spies posted around the country.

Army spokesman Major Neumi Leweni told Fiji Television’s 1 National News on Friday that the military and some government departments have been using official vehicles bearing private plates and that plain-clothe military intelligence officers are posted across the country.

Leweni said it should be expected that the military would have intelligence agents reporting back to them and played down the use of private-plate vehicles.

The military has been depending on “intelligence” from its agents and enthusiastic members of the public in its various raids (bootleg, marijuana raids) and arrests (like the case of former Labour Minister Kenneth Zinck, arrested twice in two different pubs for making anti-Bainimarama statements).

Bainimarama probe “shelved”

Meanwhile, the acting Police Commissioner Romanu Tikotikoca announced in a press conference on Friday afternoon that police had “shelved” an investigation into army commander Commodore Voreqe Bainimarama that began before the military ousted the government.

Bainimarama’s threats against Prime Minister Laisenia Qarase’s government late last year prompted a sedition investigation that was underway when the army commander staged his coup on December 5, 2006.

That investigation has now been called off in the interests of “national security”, Tikotikoca said.

“At this moment, one must understand that national security supersedes all other issues. Therefore the concern of the police is the interest of public safety and security and our efforts at the moment is directed towards the maintenance of peace and stability in this nation and facilitate the return of democratically elected government.”

Arms shipment investigation

In another development, Tikotikoca revealed the files of the investigation into the army’s removal of 7.5 tonnes of ammunition from the Suva wharf in November last year is now with the Director of Public Prosecutions.

Police Director of Economic Crime Ravi Narayan said after the investigation “they realised a technical issue had been overlooked,” according to Legend FM.

He said they are now trying to get a “legal opinion” on whether the military have the authority to import arms without a license.

The importation of the ammunition from Korea in late November put then Police Commissioner Andrew Hughes and Bainimarama at loggerheads and thrust the animosity between the two into the spotlight.

Detention of police officers

Tikotikoca also labelled the arrest and six-day incarceration by the military of senior detective Waisea Tabakau who was involved in investigating Bainimarama’s seditious comments as a “misunderstanding” (as Legend FM puts it).

“Apparently this is an internal matter that we are going to solve and hopefully we will come to a mutual understanding,” Tikotikoca said.

Tabakau was being questioned at Queen Elizabeth Barracks before his release on Thursday.

The military were also searching for other police officers involved in investigating the military over its threats to oust Qarase.

And in other news…

Meanwhile, after all the gloomy news out of Suva, some comedy…

Fijilive reports that the military is investigating the source of rumours that Land Force Commander Colonel Pita Driti and army commander Commodore Voreqe Bainimarama had a “fist-fight”.

Colonel Driti laughed at suggestions he had an argument with Bainimarama, according to Fijilive.

“I heard rumours like that too last week that we had a fight following a heated argument. There was nothing like that,” he told Fijilive.

“We know that a group of people are spreading rumours. We are investigating.”

The rumour has been circulating on the Fiji Village Talk forum since last week after somebody posted a message saying Driti had been admitted to hospital after a “punch up” with Bainimarama and his bodyguards.

The “group of people” Driti is referring to is probably the anonymous users of Fiji Village Talk.

Rounds-Ganilau 'sorry' for youth's assault by soldiers

Interim Minister for Labour Bernadette Rounds-Ganilau has expressed regret at the assault of a Nadi youth by soldiers last week which resulted in severe head injuries and surgery, as first reported by Intelligentsiya.

In response to questions from Intelligentsiya about the incident, Rounds-Ganilau confirmed she visited Sakiusa Rabaka, 19, in hospital after his mother asked to see her and appeared to distance herself from the actions of the military.

“I am sorry for what has happened to Sakiusa,” Rounds-Ganilau told Intelligentsiya. “I was informed last week that a young lad was in hospital who had been beaten up in the West at Black Rock and his mother wished to see me. I visited them both that same day and took their report and sent this to (military spokesman) Major (Neumi) Leweni when I secured Mrs Rabaka's permission to do so.”

“I visited them both again on Monday after young Sakiusa had had his operation and Mrs Rabaka reported that he was feeling quite alright. In fact they had the go ahead from the doctor to return to the West if they wished and Mrs Rabaka was happy to do that.”

They are expected to return to Nadi today.

Sakiusa was arrested by soldiers during what they say was a drug raid but his mother, Ala, says he was at the “wrong place at the wrong time,” Fijilive quoted her as saying.

Intelligentsiya first reported Sakiusa’s case on Friday, February 16, but it was not reported in the mainstream media (as far as we know), although Fijilive did a follow-up report on Monday in which they named Sakiusa and quoted his mother.

“He was hanging out with two other friends in Votualevu, when they were picked up by seven military officers and a policeman who took them to the Nadi army barracks where they were told to strip naked and carry loads of sands on the backs,” Ala Rabaka told Fijilive.

She said Rabaka and his friends were told to run around a playground before being made to do press-ups on the road.

“While carrying the bag of sands they were beaten up. As a result my son sustained severe head injuries.”

She said that she did not recognise her son when he was brought home the same day due to the injuries he sustained.

Meanwhile, Fijilive quoted army spokesman Major Neumi Leweni on Monday saying that he is “unaware of the incident and needs time to verify the claims”.

But Rounds-Ganilau has this to say: “I emailed Major Leweni on Friday morning after my visit on Thursday evening and it bounced back so resent it on Monday morning 19th February.”

It appears Leweni was lying to Fijilive or he just doesn’t check his email (or as somebody mentioned in a comment, the email could have bounced a second time).

Top international lawyer discredits Gates' appointment

Intelligentsiya has obtained legal opinion that the appointment of Justice Anthony Gates as acting Chief Justice was unconstitutional and unlawful.

Professor James Crawford (SC), of the University of Cambridge in the United Kingdom was asked to give his legal opinion on the validity of Justice Gates’ appointment by some senior local lawyers. (Click on image to download brief)

He was also asked to comment on the suspension of Chief Justice Daniel Fatiaki.

“If evidence was available of judicial misconduct against Justice Fatiaki, the appropriate step was for the President to use the process provided for in section 138 of the Constitution,” Professor Crawford wrote in his 13-page brief.

“Military intervention to place him on forced leave was contrary to section 118 of the Constitution, and was not cured by the doctrine of necessity.”

Professor Crawford said the entire procedure of Justice Fatiaki’s suspension and Justice Gates appointment was unconstitutional.

“…[T]he meeting on 15 January 2007 was improperly constituted since Justice Shaheem, who chaired the meeting and signed the recommendation, was not a member of the Commission,” Professor Crawford.

“In the circumstances this non-compliance with section 131 of the Constitution was material and it was not cured by the doctrine of necessity.”

• Crawford is Whewell Professor of International Law at the University of Cambridge and Chair of the Faculty of Law. Crawford has an extensive practice in international law and international arbitration, appearing before the International Court of Justice , International Tribunal for the Law of the Sea, International Centre for the Settlement of Investment Disputes and International Criminal Court tribunals.

• Read more about Professor Crawford’s credentials
• Download Crawford's opinion here
  

Pacific Forum Eminent Persons' Group report on Fiji

Intelligentsiya has obtained a complete copy of the confidential report by the Forum Eminent Persons’ Group (EPG) on Fiji’s political crisis, in which it called for the lifting of the state of emergency and the appointment of a civilian prime minister.

The report is marked “For Forum Eyes Only” and “Confidential” and is supposed to have been presented to the Forum Foreign Affairs Ministers when it meets next.

To download the report, click here (PDF 710kb)

The report will be discussed by the Forum Council of Ministers before it is released officially.

The report says the majority of those people the group consulted did not agree with the grounds on which Bainimarama seized power and his interpretation of the doctrine of necessity.

The EPG highlighted suggestions that elections could be held with 15 months and two years.

The Fiji Human Rights Commission’s ability to fulfill its mandate, the EPG heard, was “undermined by internal disputes and politicisation”. The EPG said because New Zealand had suspended funding, the commission would be entirely dependent on state funding thereby opening it up to the “possibility of political interference”.

Today, Bainimarama said in a statement that his office would not comment on the report as a “matter of policy, procedure and protocol.”

“The Pacific Island Forum Secretariat was the implementing agency for the visit of the EPG and co-ordination of Report preparation. It is only proper that the (Forum Foreign Affairs Ministers) get to consider the Report first. The Interim Government will let its position on the Report known directly to FFAM.”

The director of the Fiji Human Rights Commission, Dr Shaista Shameem, however, condemned the report saying the observation were not put to the acting chairman Rodney Acraman and the deputy director Kitione Radrodro first when they appeared before the EPG.

Reactions to EPG report:

• Dr Shaista Shameem lambasts the report and accuses the one of its members of conflict of interest: See FijiVillage report. Another take on Shameem's reaction (it appears she sent out a press release) is over on Fiji Times Online.
  
• The Fijian wing of the Fiji Labour Party has a rather colour description of the report. Its secretary Maika Moroca labels it "rubbish" and says the EPG can "go to hell". See Fiji Times online report.

**********************

Meanwhile, in other news today…

Investigator in military custody

The military has confirmed it continues to hold in detention a senior detective who was involved in investigating the 2000 coup and mutiny – and who had been investigating the latest coup.

Acting director of the Criminal Investigation Department Waisea Tabakau has been in custody since his arbitrary arrest last Friday (February 16).

While it was being widely reported on radio during the day (attributed to Land Force Commander Colonel Pita Driti) that Tabakau was being held because he had been investigating the commander over the deaths of five Counter Revolutionary Warfare soldiers after the November 2, 2000 mutiny, the army’s spokesman Major Neumi Leweni told Fiji TV’s main evening bulletin that he could not confirm why Tabakau was being held.

Driti told Legend FM they were looking for other police officers who had been investigating the military for its overthrow of the Laisenia Qarase government on December 5, 2006. He said the officers should not be investigating them because they had already been granted immunity by President Ratu Josefa Iloilo.

SDL lawyer’s car vandalised

It may be a total coincidence, but police are searching for three men who damaged a vehicle belonging to the lawyer bringing a case on behalf of the ousted Prime Minister Laisenia Qarase and his Soqosoqo Duavata ni Lewenivanua (SDL) government against Commodore Frank Bainimarama.

Tevita Fa was awoken in the early hours of this morning to the sound of a breaking windscreen and while security guards gave chase, they were unable to catch the culprits.

Meanwhile, the military-backed acting Chief Justice Anthony Gates will preside over the case in which Qarase and other claimants are seeking several declarations from the High Court that the overthrow was illegal, among other things.

Digitaki and other activists deny illegal protest charge

Business woman Laisa Digitaki came out of hiding on Monday to face the court on charges of unlawful procession for protesting outside the venue of the Great Council of Chiefs’ meeting in December calling for a return to democracy.

Digitaki and the other four, Jacklyn Koroi, Pita Waqavonovono, Unaisi Dimaru and Tura Lewai, all pleaded not guilty to the charge when they appeared in the Suva Magistrates Court. A hearing has been set for June 2.

And in case you missed it (or couldn’t believe your ears):

Senior army officer educates students in the gentle art of military persuasion

Land Force Commander Colonel Pita Drita made this comment (broadcast on Legend FM) in a speech at the Rishikul Sanatan College’s prefect induction ceremony on Monday:

“In the military we have a very common definition of leadership. It says it is the art of influencing and directing people to achieve willingly the team or organizational goal. That clearly shows that you don’t have to be forceful and be a tyrant or a dictator, you don’t have to be feared, you don’t have to see that you are forcing those under your special authority to do things that you, on behalf of the institution, want done.”

Fair enough. But Intelligentsiya is keen to ask what happened to that “art of leadership” in early December to prompt an overthrow of the government at gunpoint.

Gun-shy or something else?

By Dr John Cameron
Special to Intelligentsiya

This is the photograph (right) which reduced Australian Prime Minister, Bob Hawke, and countless others to runny-nosed tears, in the case of the Prime Minister on national television. Tank Man, or the Unknown Rebel, is the name commonly given an anonymous man, who became internationally famous, when he was videotaped and photographed during the Tiananmen Square protests on 5 June 1989. Several photographs were taken of the man, who is seen to positioning himself in front of a column of Chinese tanks, preventing their advance. Video footage taken by the BBC and CNN was also shown world-wide. It shows the lead tank attempting to go around the man, who moved sideways in order to block its forward movement, before climbing onto the tank, and speaking to a person presumed to be the tank commander. He then climbed down, and was hustled away by persons, who could have been ordinary bystanders, or equally likely plain-clothed security personnel. Some accounts have him executed by firing-squad, others still in hiding in mainland China. In April 1998, the United States magazine TIME included the "Unknown Rebel" in its 100 most influential people of the 20th century.

In the West, pictures of the Tank Man were presented as a symbol of the Chinese democracy movement; a Chinese youth risking his life to oppose a military juggernaut seemed a fitting representation of students bravely and spontaneously protesting against the authoritarian rule of the Chinese Government. The image resonated within democracies as a symbol of an individual's power to halt government and force a change in direction.

In the China, on the other hand, the image was used as a symbol of the care of the soldiers in protecting the Chinese people: despite orders to advance, the driver of the tank refused to do so if it meant injuring a single citizen. Tank Man was presented as a social delinquent, a symbol of irresponsible opportunist rioters during the Tiananmen Square protests, and as a possible agent provocateur of Western governments. As with most matters related to the 1989 protests, the Tank Man topic later became, and still remains, a political taboo in mainland China and unknown to most Chinese.

Recent events in Fiji have not produced a Tank Man, and are unlikely to do so. When questioned about the underlying reason for their passivity in the face of the unlawful assertion of power, most citizens refer to the guns held by the RFMF. However, the power of the image of the Tank Man tends to mask the common decency of the commander of the lead tank. He did not run the Tank Man down, as others were to do in following days in Tiananmen Square. He was prepared to lose face rather than take a life. Do citizens here really believe that ordinary members of the RFMF are lacking that same decency and would fire on an organized demonstration? Is it that which prevents the public protests, which would no doubt occur in other countries if democracy was ousted by force, or is it something else?

In his book Trust: The Social Virtues and The Creation of Prosperity, United States scholar and economist, Francis Fukuyama examines the impact of culture on economic life, society, and success in the new global economy. He argues that the most pervasive cultural characteristic, influencing a nation's prosperity and ability to compete, is the level in that society of trust or cooperative behaviour based upon shared norms. In comparison with low-trust societies (China, France, Italy, Korea), which need to negotiate, and often litigate rules and regulations, high-trust societies like those in Germany and Japan are able to develop innovative organizations, and hold down the cost of doing business. Fukuyama argues that the United States, like Japan and Germany, has been a high-trust society historically, but that this status has eroded in recent years.

Whether the cause can be traced back to colonial policies of “Divide and rule”, or to even more longstanding tribal rivalries in indigenous communities, it seems undeniable that in Fiji a high level of the trust referred to by Fukuyama is absent, not only within communities, churches, social and professional organizations, but even within families, and Fiji is paying a high economic price for the deficiency, not only in terms of economic development, but more recently in the failure to oppose in an effective and reasoned way the recent assertion of military force in a manner which has caused, and will continue to cause economic hardship to its people. Attributed to 18th Century politician, Edmund Burke, and probably wrongly, is the much and variously-quoted maxim: ‘All that is necessary for the triumph of evil is that good men do nothing’. So long as the good men, and women of Fiji, cannot trust each other, it is unlikely that anyone will have the courage to do anything. The absence of a Tank Man is not a function of the absence of tanks, but of the absence of trust.

• The author, Dr John Cameron is a lawyer who has visited, worked in, observed, and otherwise enjoyed Fiji for in excess of forty years.

Justice Delayed

This posting was written by anonymously by lawyers reviewing the military's appointment of Justice Anthony Gates as acting Chief Justice:

By Anonymous Contributors,
Special to Intelligentsiya

Every party charged with an offence and every party to a civil dispute has the right to have the case determined within a reasonable time

Constitution, section 29(3)

It is a legal, if not a general, truism that “justice delayed is justice denied.” The Canadian Charter of Rights and Freedoms contains a provision similar to that in Fiji’s Bill of Rights set out in Chapter 4 of the Constitution. In considering how long was too long the Supreme Court of Canada held that, where a trial judge had taken eleven months to rule on a motion for a directed verdict in a criminal trial, the rights of the accused under the Charter had been infringed. Over the period of eleven months there were no fewer than nineteen adjournments. The Supreme Court on appeal ordered a stay of the proceedings, which put an end to the prosecution. Courts may be somewhat slower to grant relief in civil matters, but the general principles apply. Delays in the delivery of an interlocutory ruling are less excusable, since they tend to interfere with the fair conduct of the hearing.

Fiji has since 2002 had a Code of Judicial Conduct, which is available on the Internet.. As the Chief Justice noted in his Foreword: “Since 1972 almost every major judiciary has adopted a code of conduct or ethical principles for the guidance of its judges and magistrates.” Fiji’s Code reflects the Bangalore Principles of Judicial Conduct which are now widely accepted as defining the international standards for ethical conduct by members of the judiciary. It sets out a number of principles under a series of headings. Under the heading Competence and Diligence Principle 6.3 it is provided that:

A judicial officer should perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.

A judge who does not deliver a decision with reasonable promptness is in breach of the Code of Conduct, and also in breach of the breach of the rights of the parties under the Constitution, which he or she has sworn to uphold. The judicial oath provides:

I, AB, do swear that I will well and truly serve the Republic of the Fiji Islands, in the office of [….]. I will in all things uphold the Constitution, and I will do right to all manner of people in accordance with the laws and usages of the Republic, without fear or favour, affection or ill will. So help me God.

Under the provisions of section 138 of the Constitution a judge may be removed for “misbehaviour”. While unreasonable delay in the delivery of the occasional decision, for reasons which are explicable, would not in the ordinary course amount to “misbehaviour”, a repeated pattern of such delays, in the absence of reasonable explanation, almost certainly would.

On 7 January Commodore Bainimarama instructed the Chief Justice, Daniel Fatiaki to go on leave or be dismissed. If the office of chairperson of an independent service commission is unable to preside, the remaining members may elect on of their number to preside: section 144(1). There is provision for the appointment of an acting member by the President on the advice of the Prime Minister after the latter has consulted with the Leader of the Opposition: section 144(2). Clearly no such advice can have been and was given. However on 16 January Justice Shameem called and purported to chair a meeting of the Judicial Services Commission, the chairmanship of which under the Constitution is reserved for the Chief Justice, The same day she wrote to the President, Ratu Josefa Iloilo, recommending that her colleague and close friend, as well as another outspoken critic of the Chief Justice, be appointed Acting Chief Justice. Justice Gates was sworn in by the President, the ceremony being delayed to accommodate the presence of the military commander and Interim Prime Minister, Commodore Bainimarama. Leaving to one side the question of the legitimacy of the appointment, and whether the oath taken by His Lordship was of the same character as that which caused Justice Shameem to consign Ratu Rakuita Vakalalabure to prison for six years, later reduced by the Supreme Court to four years, after an ill-fated attempt by the Judge to intervene in the appeal, an attempt which the Supreme Court characterized as “unheard of” and “unprecedented”, the choice of Justice Gates as Acting Chief Justice was curious to say the least, having regard to the purposes of the appointment, which included introducing efficiency in the legal system.

It is curious because in the context of delays in the delivery of decisions, His Lordship is outstanding as the worst offender, having reserved in excess of forty cases for decision, either for ruling or judgment, and having failed to deliver a decision within what by any standards could be considered a reasonable time. In one such matter he adjourned for a ruling on notice in December 1999. In over half of the cases, the adjournment was for a ruling. The most recent of these was in mid 2004, but most date from the period 1999 to 2001. Decision is awaited on all of them.

A ruling frequently does not dispose of a case with finality, as does a judgment, at least so far as court of first instances is concerned. It is doubtful whether a case which has been picked up part-heard by counsel and by the presiding Judge after a period of years can be determined fairly, and this is without regard to the practical prejudice to either or both parties occasioned by the delay in the delivery of a decision, whether that be a ruling or a final judgment. Take, for example, an action for possession by the owner of a rented property. The tenant has not paid rent, or has trashed the premises, or both. The owner takes action to regain possession. The Judge sits on the decision for a period of years, while the tenant continues the failure to pay rent, or the trashing of the premises, or both. Where the proceedings are for the custody of a child , three parties are involved not least of whom is the child. The child may remain in the custody of a wholly unsatisfactory parent while the Judge sits on the file, and all parties remain in a state of uncertainty. In one matter before his Lordship the plaintiff sought an injunction preventing the payment of land rents to the recently decided head of a Fijian mataqali and yavusa. His Lordship heard this straightforward matter in early January 2000. The judgment, which ran to a mere sixteen paragraphs, was delivered towards the end of June 2005. Presumably the parties were kept out of their money in the meantime, or perhaps they simply gave up and settled it between themselves, vowing never again to return to court.

In another case in which his Lordship presided, the matter was heard on 9 November, and 15 December 2000. Judgment was delivered on 19 August 2005. On appeal, the Court of Appeal observed:

No explanation has been advanced for such an inordinate delay. To the hapless appellant it must have seemed the least straw in a case that had, by then, dragged on for fifteen years os that the six year old victim is now of woman of twenty four or five and still seeking some finality in her claim. No delay of this magnitude can be justified but a final delay of nearly five years after a hearing waiting for judgment is the antithesis of justice and deals a heavy blow to public confidence in the court system as a whole.

Does such a pattern of delay on the part of a Judge if established constitute “misbehaviour” for the purposes of removal.? It almost certainly does, and surely merits the referral of the conduct of the Judge to the Tribunal, which is to be established to look into the conduct of the Chief Justice. Failure to do so will bring the system of justice into disrepute. It has already been the subject of comment that, notwithstanding the assumption of the onerous responsibilities of Acting Chief Justice, which have led him to move the hearing of all his listed criminal trials to another Judge, and notwithstanding the substantial backlog of long outstanding decisions, the Acting Chief Justice still found time to entertain in chambers, not in open court, applications brought by the Human Rights Commission on behalf of suspended military lawyers, and the son of Interim Finance Minister, Rajesh Chaudhry, represented by Justice Shameem’s sister, and his former employee, the much criticized Dr Shaista Shameem. Why the Human Rights Commission should be representing lawyers, with the resources to instruct private practitioners, and whether it is within the statutory mandate of the Commission to do so is a question for another day. Today’s question has to be:

Quis custodet custodes?

So far as the rights of citizens under the Constitution are concerned, who does watch the watchdogs?

• The authors are practising lawyers. In the interests of themselves, their colleagues, and their clients, it is considered prudent that they should remain anonymous.

A Polemic Rant about Coup-Coup-Coup Land

What is it about this coup that just tears at the heart of the people of Fiji?

Is it really that we are pissed off about the illegal overthrow of a democratically elected government? Is it because the new political players did not make it at the polls and are now throwing their weight around like they did? Is it the definite deterioration of the state of our economy and its impact on our ability to put food on the table? Is it because it is now "3rd time unlucky"? Or is it just because it is the change of power that has rocked our world?

I would submit that it is all of the above. Not withstanding the legal considerations—and jeengers that’s another heck of another long rant which I will leave to the courts to unravel—to a simple citizen like myself, this is simply about what is right and wrong.

Of course I’m upset about the SDL Government falling asleep on their watch. But it does not justify an illegal take-over no matter how thick they sugar-coat it.

But what really gets me is that at a time when you expect certain independent institutions in our country to remain steadfastly focused on their legal obligations to our society, they have disappointedly remained “polemic”. And I suspect these institutions will remain that way until a totally new government is put in place.

I suppose this whole façade is just something we just have to ride out. But the up’s and down’s with each passing week cannot even begin to compare with the worst of roller-coaster rides.

And now we have another round of new evidence about vote-rigging from investigations into the Elections Office, which was directed by the Military Council of all things (did the President decree them with any special powers?)!!! I wait the findings with bated breath and can hear Donna Summer singing “this time I know it’s for real” in my head. I know in my heart that I will be yet again disappointed.

Just as a coup is a coup is a coup. The cloud of illegality that hangs over this administration seeps into every single attempt they make to move Fiji forward—from policy, legislative to the investigative.

And the only polemic rant I would have about that is the pilfering away of more taxpaying dollars while the bread and butter issues remain unresolved.

Soldiers beat teenager senseless

A teenager was admitted in a serious condition at the Colonial War Memorial Hospital on February 12 after being beaten up by soldiers. The reason for the 19-year-old's assault is unclear.

The teenager was admitted with grave head injuries but the incident has not been reported in the mainstream media.

The teenager's family is fearful of further military retaliation and the young man's mother sought advice on whether on she should lodge a complaint with the Fiji Human Rights Commission as she was extremely fearful of the repercussions from the military.

The 19-year-old was reportedly visited by a female member of the interim administration on the evening of February 15^th. It is unclear as to what her next course of action, as a member of the interim administration will be.

Meanwhile, the Lautoka High Court was abuzz with the unprecedented joint visit by the acting Chief Justice and the interim Attorney General this week.

PS: Following our post on the topic on February 16, Fijilive reported on February 20 that the 19-year-old was Sakiusa Rabaka of Nadi who was recovering from surgery. He was arrested by soldiers on allegations of peddling drugs, but his mother said he was at the "wrong place at the wrong time".

EXCLUSIVE: Shaista Shameem’s ‘long poem of praise’ for the military savaged by dissenting group of lawyers

A group of lawyers has anonymously written an eight-page report systematically discrediting the infamous monograph authored by the Fiji Human Rights Commission’s director Dr Shaista Shameem in December in which she justified the overthrow of Prime Minister Laisenia Qarase’s government by the military.

(The entire dissenting report appears after this summary.)

The scathing analysis was written by lawyers who said they could not identify themselves at this time because they risked falling victim to the “unlawful detention and harassment” by the military of those who voice opposition to the force and the government it runs.

The lawyers label Shameem’s report as a “long poem of praise” for the military, “little more than an apology for the Commander and the RFMF”, and said her arguments were unconvincing and “would be given short shift in a court of law.”

Other points the dissenting report highlights include that Shameem’s report:

• Misapplied the doctrine of necessity;
• Is riddled with legal inaccuracies, misapplications of law and a selective reading of case law.
• Was disconcerting in that in devoted much to the alleged shortcomings of civil society and exonerated the perpetrators of the military takeover;
• Left little doubt as to where her sympathies lay;
• Compromised the Fiji Human Rights Commission and the director’s own standing as well as being a setback for the cause of human rights in Fiji.

“This country has had four coups. All have had their genesis in the RFMF with some participation of outside elements. It is an armed military commanded by officers who arrogate to themselves the role of watchdog, for no other reason than their possession of guns, that remains a constant threat to our fledgling democracy,” the lawyers wrote.

******

A Legal Response to the Shameem Report: Fiji Human Rights Commission Director’s Report on the Assumption of Executive Authority by Commodore J V Bainimarama, Commander of the Republic of Fiji Military Forces

This Response has been prepared by a group of lawyers who between them have considerable experience and expertise in human rights and constitutional law nationally and internationally. Due to the continued unlawful detention and harassment of those who have voiced their opposition against the military and the military installed government, they are, at this stage, unable to be named.

1.0 Introduction

The Report prepared by the director of the Fiji Human Rights Commission, Dr Shaista Shameem, carries the imprimatur of the Commission. The status of the Report is as yet unclear given that the Acting Chair of the Commission was not appointed by the Constitutional Offices Commission (ss163(1), 43(2) Constitution), the remaining

Commissioner, Ms Shamima Ali, has disassociated herself from the Report and the position of the Second Commissioner is vacant. It is also puzzling that the Director feels able to determine the legality of the circumstances subsequent to 6pm, Tuesday 6 December, 2006. That is not properly the brief of the Commission for obvious reasons.

Throughout this response, the monograph authored by Shameem will be referred to as the Report.

2.0 Legality of the Assumption of Executive Authority by the Commander

2.1 Duty of Necessity

While not questioning the doctrine of necessity as explained in the Report, it is assumed that any Court reviewing the actions of the Commander of the Republic of Fiji Military Forces, at 6pm on 5 December, 2006 would not query the latter’s reasons for invoking the doctrine. This is an erroneous and
misleading assumption. The Court of Appeal in the Chandrika Prasad case concluded on the facts that there was no basis for the Commander to invoke the doctrine of necessity. It is likely that a Court would reach the same conclusion on an objective assessment of the circumstances. The country was at peace. The economy functioning sluggishly if not at optimum levels. The Multiparty government was in control. The electorate widely accepted its authority. The only challenge was posed by the Republic of the Fiji Military Forces as the self styled watchdog of the people. The perceived threat was one generated by the RFMF into a self fulfilling prophecy creating a crisis where there was none.

The Report having widened the doctrine of necessity to legitimate the Commander’s usurpation of power, then characterizes aspects of the Vice President’s actions post May, 2000 and prior to the general election was therefore invalid, illegal and constitutional. This finding is determined on the basis of obiter dicta of the Court of Appeal in Prasad and Yabaki to do so.

Obiter dicta constitute remarks, principles and observations that are not strictly relevant or part of the binding principles of a case. To assert such definite conclusions on such basis is misconceived.

The fact is that it was open to Shameem and anyone else for the matter to challenge the actions of the Vice President or President in Court. No such proceedings were instituted. It is now rather late in the day to be revisiting these issues. To assert the unconstitutionality of both the 2001 general elections and the illegitimacy of the SDL Government from 2001 to 2006, on the basis of questionable legal arguments, is pointless. That can only be determined in a Courts of law and as there was no such challenge, the law would make a presumption of legality.

The Report makes reference to the role of the military under the 1990 Constitution. This can be shortly answered. The relevant provisions of the 1997 Constitution have repealed the earlier sections. When read together, the former cannot stand with the latter. In its consideration of the issue, the Report assumes without further argument, the validity of the Director’s interpretation.

In the absence of a definitive Court ruling, Shameem is entitled to her opinion but it is not persuasive.

2.2 The Qarase Government 2001- 2005

The Report finds an intention on the part of the Qarase Government to undermine the Constitution and the entrenched Bill of Rights. It asserts the Qarase Government policies were antihuman rights and discriminatory.

Evidence of the Qarase Government’s ethnic propaganda included the statements of certain parliamentarians, the Prime Minister’s defense of the comments as free speech and the introduction of the Reconciliation, Truth and Promoting of Unity Bill. Some exception was taken to the Qarase Government’s response to a conclusion by the Commission’s independent evaluator that its policies of Affirmative Action and the Blue Print violated section 38 of the Constitution concerning equality. The Government was under no obligation to accept the findings of the independent evaluator. It was at liberty to differ with those conclusions. An opinion or finding authored or sanctioned by the Commission is no more than that. Unless sanctioned by the Courts, the Government is not obliged to follow it although it may have persuasive authority.

The Commission has broad powers in respect of human rights. Beyond the conclusions of its independent evaluator, it could have challenged the entire basis for the Affirmative Action and the Blue Print. The Judiciary in Fiji has largely remained independent and impartial. It has not resiled from deciding controversial issues. There was nothing to prevent the Director from persuading the Commission to mount a legal challenge. The political wisdom of doing so was of course, a related but separate issue.

The Report again refers to the role of the military as if the issue is settled.

While the Courts have yet to determine the question, the fact that it chooses to rely on provisions from a repealed (1990) Constitution is revealing. Whether those sections are imported into the present Constitution is an arguable proportion. However, section 195 of the Constitution repeals the 1990 Constitution and subsection (2) of section 195 which ‘saves’ certain chapters, section and sub sections of its predecessor omits the provision on which the Report and the military rely.

2.3 Elections in May 2006

The Report impugns the basis of the general elections of May, 2006. It cites the failure to hold a census before hand as affecting the determination of proper boundaries based on current population figures. The point is well taken. However, in circumstances where the conduct of a cause would probably have meant the extension of the five year term of Parliament mandated under the Constitution, which was the greater mischief?

In relation to the conduct of the elections themselves, various allegations were made in relation to voter registration, conflicts of interest in the registration exercise, faulty registration slips, people registered in the wrong constituencies, failure to comply with Electoral Act in terms of scrutiny of voters rolls, excessive printing of ballot papers, unscheduled polling, unattended ballot boxes left for long periods and conflict of interest in the choice of firms selected to provide security. These are set out in full for completeness.

On the basis of these allegations and the alleged short comings of the international and local observers, the Report concludes the Laisenia Qarase and the SDL may not have been democratically elected. Allegations need to be proved. Unless any wrongdoing is systematic and widespread, how can the general election be queried? We have a legal system in place established to deal with these situations. Why was recourse not had to them at the relevant time?

The alleged unconstitutional nature of the 2006 elections and the status of the Government of Laisenia Qarase is then relied on to provide succor for the actions of the Commander and the RFMF on 5 December, 2006.

The Report cites the following ‘facts’ to marshal a case for arguing there was a perception of lack of confidence of the House of Representatives in the Prime Minister as per section 109 (1) of the Constitution. These are itemized in full for reference: the Fiji Labor Party Ministers’ divided loyalties as per the budget; evidence of breakdown of talks over Multiparty Cabinet protocols; the support for the budget by the two members of the Opposition; reports of an indication by the Hon. Robin Irwin of becoming an independent MP again; and evidence of a public outcry against VAT, the proposed Indigenous Claims Tribunal and Qoliqoli Bills as well as the constant calls by the Commander RFMF that the Government accede to its demands.

Where does the issue of confidence arise? The SDL Party had a majority on the floor of the House at all times. It won the budget vote, an issue of confidence in itself, and it matters not whether Fiji Labor Party Ministers had divided loyalties or that the two Oppositions MPs supported the budget. There was indeed adverse public reaction to the increase of VAT in the budget and to the proposed Bills. In what way did it amount to a confidence issue? As for the stance adopted by the military, it went far beyond their accepted role in parliamentary democracies. The impression that is gained from the facts as presented by Shameem is a sense of crisis. That, with respect, was generated by the increasingly strident calls and actions of the military in the days leading up to 5 December, 2006.

2.4 Government Policy, proposed legislation, crimes against humanity

The Report readily criticizes the previous Government’s use of parliamentary process to initiate legislation that were discriminatory, unconstitutional and even constitute crimes against humanity. Whether the purport and intent of the Reconciliation, Tolerance and Promotion of Unity Bill, the Qoliqoli Bill and the Land Claims Tribunal Bill were properly characterized as such is only an opinion.

Unless the legality of proposed legislation or policy is determined by the Courts, it remains that. Notwithstanding that caveat, the Report has not hesitated to make sweeping accusations unsupported by the evidence. That the Report should further tar the former, Government of ‘crimes against humanity’ and ‘ethnic cleansing’ phrases which have repugnant connotations in international law and evoke images of Bosnia, Rwanda, Burundi, Cambodia, Sudan and Nazi Germany merely reflects on the Report rather than its target. It calls into question the Report’s judgment and sense of balance.

The Report also questions the stance adopted by various United Nations agencies and Civil Society Organizations in relation to the Qarase Government. There is a suggestion that these entities ‘colluded’ in the actions of the latter. Again it omits to substantiate the claims. They are not only serious but border on the libelous because they tarnish reputations without justifiable cause. It is disappointing that the Report has, under the pretext of assessing the legalities of the current situation, used the opportunity to vilify those who take issue with its conclusions.

The Report persists with the illusion that the legality of the military takeover was unclear, raises some doubts about the Report’s authors understanding of constitution law. The rationale of her argument appears to be that the military’s action must be considered in the light of the illegal and unconstitutional Government that was ousted. The character of the two previous Governments has already been addressed. The Report’s arguments are unconvincing and would be given short shift in a Court of Law. It has misapplied the doctrine of necessity and raised objections to the conduct of elections and related issues that ought to have been put at the appropriate time and are now time- barred.

3.0 The effect of the military takeover on the Bill of Rights provisions in the 1997 Constitution: compliance audit from December 5th 2006

It is in this regard, that the position taken in the Report is perplexing. In informing the public via interviews and statements over radio and on television that people’s rights were limited by the takeover of the military, the Director misinformed the people of Fiji. While the military had indeed seized power, it was contrary to the provisions of the Constitution. The state of emergency provisions of the Constitution had not been complied with. On what basis had people’s right been reduced? On the say so of the RFMF? It had not bothered to make any regulations curtailing our freedoms as required under the Constitution. The Commission may have been better advised to affirm that while our rights were intact, it was perhaps prudent to act with restraint. Instead one was left in little doubt as to where the Director’s sympathies lay and indeed the Report is one long poem of praise for the RFMF.

Rather than defend the rights of those who had suffered at the hands of the RFMF, the Report devotes much time and space to questioning their bona fides. What then is the responsibility of the Commission at times like this when fundamental rights and freedoms are under their greatest threat? The Report is coloured by a perception that the RFMF has done us a great service by removing an unconstitutional, undemocratic, racist and anti- human rights regime (i.e the two Qarase Governments) which held us in thrall for the last six and half years. In accomplishing this feat, what matters it that a few of our rights are compromised and some people are humiliated and brutalized by the RFMF. The problem with this proposition is the fallacy of the reasoning which this proposition seeks to correct.

4.0 Observations and recommendations regarding duties and responsibilities of Institutions of the State, public official and other relevant stakeholders

It is indeed true that that judges of the High Court were divided on the issues of drafting decrees for the military government, the abrogation of the Constitution and advising His Excellency the President. Some of those schisms remain to this day. In hindsight and with the passage of time, all the judges were committed to the rule of law but differed on the means of how it could best be preserved. What transpired underscores the need for a common position to be adopted by our Courts. This is not the time for recriminations but learning from what has happened.

4.2 The Attorney-General

The particular issues raised in relation to the Office of the Attorney-General are well-taken and need to be borne in mind by all future officeholders. However, the Report rushes to judgment on the issue of the unconstitutionality of the three Bills referred to earlier. That is a finding only a Court can make after considering the arguments. Until that point is reached, the assessment of validity of a Bill by the Attorney-General is as good as that advanced in the Report.

4.3 Fiji Law Society

The criticism of the Society in its initial suspension of the Practicing Certificates of the Army Legal Services personnel, because they had not been given a hearing, is misconceived. In taking part in the overthrow of a properly-elected Government, those personnel had committed treasonous acts per se. Such rights they have are conferred under the Legal Practitioner’s Act which confers upon the Fiji Law Society the right to discipline its members.

The reference to the potential conflict of interest issues on the part of the members of the Society is interesting. How does this relate to an assessment of the legality of the Commander’s and the RFMF’s actions on 5 December, 2006? This is a matter that is left to the good sense and judgment of individual members of the Society. Where there are perceived breaches, it is the duty of all members of the Society to advise the relevant entity.

4.4 The role of NGOs and the International community

The Report seeks to cast suspicion on the opposition to the military takeover of 5 December, 2006 by making mention of the funds received by civil society organizations from the metropolitan countries and the European Community.

There is a suggestion that those entities are compromised by such connections.

This charge is as baseless as it is derogatory of those committed activists who have been vocal and have spoken out about some of the less appealing qualities of military rule. To cast doubt on the integrity of their beliefs, because they happen to differ from the Report’s perspective, is revealing of the Director’s real motives, rather than any lack in those criticized.

Moreover, it is somewhat disconcerting that the Report should devote much of its attention to the alleged shortcomings of civil society, and exonerate the perpetrators of the military takeover of a whole series of illegalities. The Report has to justify the unjustifiable. What is illegal is not rendered legal by a lengthy defence premised on incorrect legal propositions and misapplications of the law. The thrust of the Report makes common cause with the RFMF’s perspective. That alone ought to raise doubts about its impartiality and lack of bias. That it appears to have attracted some support among the public is understandable. Legal issues are complex enough without the further complication provided by the constitutional experts of the situation.

Those who support the Report’s findings need to ask themselves whether it is because they accept the arguments, or whether it is because it makes it easier for them to overlook (and accept) the illegality of 5 December, 2006. If they accept the arguments, can they explain why they have been made this late and at this time? The Director has served in her position since 1999. She has never previously raised any of the questions of the status of the two Qarase Governments. Why is the position the Report is now taking so supportive of the RFMF? Is it mere coincidence? Why does the case put by the Commander RFMF on 5 December, 2006 and subsequently echo the stance the Report has taken? This point is made in light of the fact that the Commander has no legal background and would not normally be familiar with concepts such as the doctrine of necessity. These are questions that need to be answered as the Report has not resiled from pronouncing quite confidently on the legality of the situation post 5 December, 2006.

4.5 Fiji Human Rights Commission

The Report’s pronouncements in this regard that it

“is required to be seen to be acting impartially and independently of all sides and at the same time able to make judicious statements about the need to maintain respect for
human rights and law and order.”

is hollow sounding indeed. It has regrettably compromised its position and the elaborate explanations it makes in defence of its role are best ignored. This report is a case in point and a direct contradiction of the assertion that “Commissions cannot take sides in a political conflict.” It is little more than an apology for the Commander and the RFMF as has been observed elsewhere.

5.0 The RFMF’s position as de facto Government of Fiji

The discussion under this heading is confusing. The Report makes reference to human rights being a paramount consideration but the Director has not observed this in practice.

The Report appears to have been more concerned about the general public understanding the need for circumspection in the exercise of their rights and complying with the RFMF heavy handed strictures on dissent.

Reference is then made to a recent constitutional case concerning discrimination on the grounds of age. What is the connection between that case and the military takeover? Admittedly it was a landmark decision and the Commission is to be applauded for highlighting the case. However, one fails to appreciate the relevance of the issue to the question of validity relating to the military takeover.

It is in the Report’s support for the role of the RFMF under the 1990 Constitution, that discloses its slant. It goes to extraordinary lengths to put a gloss on the military having an expanded brief in normal life. The explanation may have a reassuring feel among those who have applauded their recent actions. One succumbs to this delusion at his/her peril.

This country has had four coups. All have had their genesis in the RFMF with some participation of outside elements. It is an armed military commanded by officers who arrogate to themselves the role of watchdog, for no other reason than their possession of guns, that remains a constant threat to our fledgling democracy.

6.0 Conclusion

The Report is riddled with legal inaccuracies, misapplications of the law and a selective reading of case law. What is disturbing is that it claims to be a dispassionate and balanced analysis of the legalities surrounding the RFMF’s usurpation of power on 5 December, 2006. It is in fact a veiled justification for the actions of the RFMF on 6 December, 2006. What emerges from the Report is an apparent dislike of Prime Minister Qarase and his two Governments. The tragedy is that in confusing the latter with its apparent approval of the RFMF’s perspective in relation to its own actions, the Report has compromised the Fiji Human Rights Commission and the Director’s own standing as well as set back the cause of human rights generally in Fiji.

January 2007 ">