PACIFIC ISLANDS REPORT

Pacific Islands Development Program/East-West Center
With Support From Center for Pacific Islands Studies/University of Hawai‘i

By Maika Bolatiki

SUVA, Fiji (FijiSUN, Dec. 2) – The tabling of the much-anticipated report on the Reconciliation, Tolerance and Unity Bill by the Joint Parliamentary Select Committee On Justice, Law And Order in Parliament yesterday marks another step on the Bill’s democratic journey.

It is evident from reading through the Bill that indigenous Fijians show strong support while the other ethnic groups strongly oppose it. The stated intention of the Government is to hasten the healing of Fiji, following the tragic events of 2000 and Cabinet believes this will enable the Government to more effectively concentrate on nation building, strengthening our economy and improving living standards, especially for the poor.

The committee received 272 formal written and oral submissions. The Bill attracted reactions both for and against. Chairman of the JPSC on JLO, Deputy Speaker Manasa Tugia, said those that supported the Bill have said it would be the vehicle to resolve in a lasting manner, the inter-ethnic tensions, conflicts and upheaval, that have occurred. They say it will promote genuine reconciliation and unity as a result. This, they believe, can only be achieved through a biblically and spiritually-based process of restorative justice. This process aims to bring closure to the upheavals in 2000 and help the country put its past behind it and move forward.

They also believe that it would take many years to bring the thousands of persons yet to be investigated to justice at the current rate. Even with justice being meted out, the view that it will not prevent the kinds of events that occurred from recurring if the root causes of the problem are not completely addressed. They stressed the Bill provides a window of opportunity to help address these root causes.

The committee has categorised the Bill’s opponents as follows: - l The Bill is highly objectionable from a constitutional and human rights perspective, in particular the amnesty provision: l The Bill imperils the rule of law: l The Bill promotes a "coup culture" by aiming to set free those persons charged with coup-related offences. l The Bill undermines the constitutional and statutory powers of the judiciary, DPP, police and RFMF and other constitutional offices. The committee also noted the views expressed against the Bill by many individuals and groups, who had not even read or saw the Bill but focussed on the amnesty provision. Both the security forces, the police and the army, have opposed the Bill. The RFMF in its submission said: "The Bill is ill-conceived and is a recipe for internal conflict, unrest and violence. It will promote and bring about despair, hopelessness and insecurity amongst the people."

The Fiji Police Force in its submission totally opposed the Bill (Amnesty provision) on the basis that it will directly interfere with the major functions of the police contained in the Police Act (Cap 85), in terms of investigation and prosecution of offenders. They also oppose the Bill on the basis that the Reconciliation and Unity Commission will interfere with the constitutional powers of the Commissioner of Police established under the Constitution. Also on the impact and interference of the Bill with its functions they said that under section 5 of the Police Act, the force is charged with the maintenance of law and order, the preservation of peace, the protection of life and property, the preservation and detection of crime, and the enforcement of all laws and regulations. Section 5 gives the Fiji Police Commissioner the authority to investigate when an offence or a crime has been committed and to prosecute the offenders where there is sufficient evidence to lay charges.

The two disciplined forces have legitimate concerns and the committee has cautioned the Government to take heed of them. Similarly concerns from Constitutional Offices - the Fiji Human Rights Commission and the Director of Public Prosecutions and the legal fraternity should be carefully taken account. Jailed coup offender Josefata Nata who stands to benefit from the Bill as a prisoner convicted of offences related to the events of 2000 and who is now serving a life sentence wants the Government to drop the amnesty clause and make truth telling through a Truth Commission to be the main focus of the Bill.

His colleague, Timoci Silatolu, in his submission says the Bill will allay fears of the RFMF; the fact that full disclosure is part of the amnesty provision, which will enable everyone to tell the truth.

Many have raised their concern on the amnesty section and the committee has the following recommendations: - l Immunity Decree 1988 - The committee strongly believes that there should be an amendment made to the interpretation of amnesty from the one proposed in the Bill, to mean immunity from criminal liability for minor offences that are yet to be prosecuted. It also should mean the provision of relief under section 115 of the Constitution for those already convicted. In this way the committee believes the concerns raised in submissions with respect to the way amnesty is currently defined will be addressed. l Amnesty Decree 1988 - The committee therefore believes there should be an amendment made to how amnesty as provided in the Bill should be defined. The committee agreed that amnesty should be one of the two types of benefit that is to be granted by the State. Firstly, "State immunity" to the wrongdoer (bearing in mind the strategy suggested in the committees view under "Immunity Decree 1988) and "State Reparation" for victims. "State Immunity" (as mentioned earlier) should mean either "relief" such as pardon etc under Section 115 of the Constitution or the "immunity from criminal liability," for those yet to be prosecuted for "minor offences".

The committee strongly felt that in the pursuance of restorative justice, there should not be any doubt that the primary focus of the Bill should be on achieving genuine reconciliation and seeking forgiveness between the victim and the wrongdoer. There must be a mix between retributive justice and restorative justice where necessary, but the focus should be on achieving reconciliation. This implies shows of remorse and guilt and seeking of forgiveness by the wrongdoer and acceptance by the victim. The grant of relief would be an outcome. It is very unfortunate that the Fiji Labour Party as the main Opposition Party has no contribution in the report as all members were instructed by their leader Mahendra Chaudhry to boycott the committee meeting. The rest of the committee members went ahead as this was a parliamentary requirement under the Constitution. While FLP members had exercised their democratic right to boycott the committee meetings, surely they had failed in their parliamentary duty to those that elected them to parliament. The next democratic process now left before the Bill is finally passed is the debate in parliament.

Before the debate the Bill will now be referred to the Cabinet for amendments and it is hoped the debate proper will be in the first parliament session in 2006, which will be in February. It will be interesting to see whether the FLP will participate in the debate. The critics will surely oppose the amendments proposed by the committee. The Bill will be passed with amendments as promised by Prime Minister Qarase. Many have raised their concern on the strong opposition by the military. Some are already predicting another coup if the Bill is passed. But any extra-constitutional action against a duly elected democratic government for exercising its constitutional powers legislating a Bill in parliament is unacceptable. The only way to challenge the Bill when enacted is through the court as if it passes this judicial scrutiny, it will correctly become the law of the land.

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