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 ">
