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Victor Lal was educated in his native Fiji Islands and at the University of Oxford and specializes in conflicts, coups and constitutionalism in multi-ethnic states. He was Reuters, Wingate and Research Fellow at Oxford. Victor Lal was Honorary Research Fellow in the Department of Scandinavian Studies, University College, London, Guest Nobel Fellow at the Norwegian Nobel Institute, and was an associate researcher on 'Project 1905: Swedish-Norwegian Relations for 200 Years', hosted by the University of Oslo. He has held visiting fellowships in Norway, South Africa, Australia and Fiji Islands. Among his publications include Fiji: Coups in Paradise-Race, Politics and Military Intervention and a forthcoming book Towards a World Without War: Andrew Carnegie, Peacemakers and Nobel Peace Prize, 1901-1951. He is completing a book on East African Indians and the Mau Mau Rebellion in Kenya and the biography of Justice Ransley Thacker, the judge who jailed Jomo Kenyatta. In 2008 Victor Lal was co-winner of Fiji’s prestigious Robert Keith-Reid Award for Outstanding Journalism.

Friday, August 11, 2006

Amnesty breaches Fiji Constitution

The proposed amnesty committee in the Promotion of Reconciliation, Tolerance, and Unity Bill in Fiji has the power to free convicts and insulates them from any civil or criminal liability. Predictably, most citizens feel that it violates the rights of the victims by rewarding coup makers. But why is the Government forcing the Bill on us? The answer may partly be found in the South African precedent. The Government mistakenly believes that it can legally defend the Bill, and also win over international support, for if South Africa got away with releasing murderers, bombers, and torturers, why not us?The clue for our assertion is based on the citation by Prime Minister Laisenia Qarase of the decision of the South African Constitutional Court judgment in the controversial Azanian Peoples Organisation (AZAPO) and Others versus the President of the Republic of South Africa and other case.The court had ruled in favour of South Africa ’s Truth and Reconciliation Committee’s (TRC) amnesty committee. It held that the TRC Act was constitutional, and that the epilogue of the Transitional Constitution of 1993 very clearly provided for national reconciliation and the TRC Act was a legislative response to this constitutional imperative. The controversial provisions in our PRTUB have been directly lifted out of South Africa ’s TRC Act, where the amnesty committee effectively traded amnesty for “truth”.
Window to freedom ... coup frontman George Speight can get off if the Bill is passed
The TRC Act permitted the amnesty committee to grant amnesty to a perpetrator of an unlawful act associated with a political objective and committed prior to 6 December 1993. As a result of the grant of amnesty, the perpetrator could not be criminally or civilly liable in respect of that act.Equally, the state or any other body, organisation or person that would ordinarily have been liable for such act, could not be liable.The TRC also had the job of granting amnesty to persons who would make a full disclosure of all facts relating to gross violations of human rights that were associated with a political objective. Moreover, as provided for in the TRC Act, priority had to be given to those applicants that were in prison. But do the amnesty provisions breach our Constitution? Yes.The “postamble” constituted an integral part of South Africa ’s interim constitution, which also had a provision for amnesty written into it. The Constitutional Court confirmed this in its judgment in the controversial AZAPO case. The court gave very clear endorsement to the provisions in the TRC Act relating to the barring of victims from instituting civil action or undertaking private prosecution. The judgment strongly endorsed amnesty and reconciliation.Consequently, our own Prime Minister embraced it without examining its applicability in Fiji . He cited the case in defence of the Unity Bill. There is no amnesty provision in the Constitution of Fiji, and therefore, the AZAPO precedent is not applicable in our case, despite the Prime Minister’s claim to the contrary.The question of amnesty is left to the Prerogative of Mercy Commission in the Fiji Constitution. The judgment of the court in AZAPO was very specific and so has limited precedential value, with the exception of its controversial treatment of public international law. A general review of amnesty provisions in other countries that the Prime Minister invoked does not apply to Fiji . These countries were transitional states that had just emerged from years of bloody civil conflicts or long periods of dictatorship. The PRTUB and the amnesty provision, as the Fiji Human Rights Commission has also pointed out, breaches our Constitution and international law:
*The preamble of PRTUB is inconsistent with the preamble and compact of the 1997 Constitution;* The amnesty available to only selective persons violates the Constitution, which guarantees equality before the law;* The objects of the Bill and the functions of the Reconciliation and Unity Commission (RUC) are inconsistent, and hence violate the basic principles of statutory drafting;* Section 118 of the Constitution insulates the judiciary from interference but Section 21 (5) of the PRTUB interferes with the independence and functioning of the Fiji judiciary;* The PRTUB is in conflict with the Human Rights Act (HRA) of 1999, which has powers to investigate human rights violations committed, condoned or ignored by the State or its officials. The Bill effectively extends the jurisdiction of the RUC to acts committed by non-state actors and is, therefore, at odds with the HRC Act of 1999;* The section on appointment to the National Council on the promotion of Reconciliation, Tolerance and Unity (the council) is inconsistent with other provisions on appointment in Section 23 of the PRTUB. The inclusion and simultaneous exclusion of members of the same religious beliefs, who are not members of an umbrella religious organisation, constitutes unfair discrimination on the grounds of religious belief;* The PRTUB, in establishing the stated commission, has failed to adhere to three basic and important principles as required by international law, namely: (i) consultation with victims at all stages; (ii) acknowledgement that the conflict to be resolved was engaged by all sides in the conflict and human rights violations were committed by opposing sides equally; (iii) there is a separation of powers between the investigations and amnesty powers and functions of the communities established by the commission;* The PRTUB does not contain UN requirements for establishing reconciliation and truth commissions; neither does it adhere to the basic principles and guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of Human Rights. Since the establishment of truth is the primary objective of such commissions, the UN General Assembly resolution requires (i) guarantees of independence and impartiality (ii) not a replacement for civil, administrative or criminal courts (iii) rights of persons implicated are guaranteed (iv) rights and security of victims and witnesses guaranteed (v) transparency in functions and operations (vi) report to be made public and (vii) not to consider amnesty unless justice to victims has been delivered. The PRTUB fails to meet these UN requirements;* The PRTUB conflicts with the mandatory compliance of proposed legislation with the Bill of Rights in the Constitution and international human rights law;* The Bill is in conflict with the Prerogative of Mercy Commission in the Constitution, which has the sole power to grant amnesty.* The Azanian Peoples Organisation (AZAPO) and Others versus the President of the Republic of South Africa and Others case is inapplicable in Fiji because amnesty was specifically written into the 1993 interim constitution of South Africa as a political trade-off to usher in democracy, human rights and the rule of law after 300 years of apartheid, which imposed white racial supremacy over non-whites in South Africa.
Significantly, the preamble to the promotion of Reconciliation, Tolerance and Unity Bill, not only breaches our Constitution but is also a recipe for old-style South Africa in Fiji . For the non-Fijians are told to become victims twice over, in the name of unity and reconciliation, through the granting of amnesty, and the demand for the supremacy of indigenous rights.