Alternative Law Journal
Jennifer Corrin Care[*]
WE, THE PEOPLE OF FIJI ISLANDS,
REAFFIRMING a recognition of the human rights and fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family,
WITH GOD AS OUR WITNESS, GIVE OURSELVES THIS CONSTITUTION
With this resounding preamble, the Constitution of the Republic of Fiji Islands 1997 was brought into force on 27 July 1999. It was greeted with much hyperbole and hailed as the flagship of human rights in Fiji. The culmination of an extensive constitutional review carried out under the Chairmanship of Sir Paul Reeves (the Reeves Commission) it replaced the 1990 Constitution of Fiji with a document designed to balance indigenous rights with the rights of ‘subsequent settlers’.
According to its Mission Statement, the Commission had, ‘Inquired into and ascertained the variety of views and opinions among Fiji citizens on how the provisions of the Constitution [could] be improved to meet the needs of Fiji as a multi-ethnic and multicultural society’. Yet less than one year later, on 19 May 2000, George Speight, a part Fijian businessman, staged an attempted coup. Whilst the coup was unsuccessful in that it was upstaged by the military, which established an Interim Government on 29 May 2000, Speight and his gang managed to hold Prime Minister, Mahendra Chaudhry, and his Cabinet ministers hostage at gunpoint for 56 days. The fact that this treatment breached the constitutional right to personal liberty (s.23) and to freedom from cruel or degrading treatment (s.25) was, no doubt, cold comfort to the hostages.
So, what went wrong in Fiji Islands? There is no simple answer to that question and those outside the cultural grid will probably never understand the intricate background to May’s event. However, the crisis has reopened the fundamental rights debate, discussed in the Reeves Report. In particular, it has reopened the debate on how to balance indigenous rights, on the one hand, and the right to equality for all members of society, on the other. In a wider context, it has highlighted important questions about the nature of human rights themselves. Are human rights truly universal or are they relative to the culture in which they are placed? Can a Bill of Rights effect cultural change or is the expression of such ideals worthless if they are not anchored to contemporary realities? With those questions in mind, this article looks at the Bill of Rights chapter in the 1997 Constitution of Fiji Islands and the Human Rights Commission Act passed pursuant to it. It also examines the Fundamental Rights and Duties Decree made by the Interim Military Government and other related issues.
Like its predecessor, the 1997 Constitution incorporated a Bill of Rights Chapter. The 1990 Constitution had made few changes to the Bill of Rights in the 1970 Constitution, thus retaining the imported model, drafted by the British Foreign and Commonwealth Office for former colonies. This model was based on the European Convention on Human Rights (1950) which, in turn, was based on the Universal Declaration of Human Rights (1948). The Reeves Commission recommended that the Bill of Rights be ‘thoroughly revised’, to take account of its recommended changes in substance and to make the Bill of Rights more accessible to the people of Fiji.
The resulting chapter of the Constitution does not appear to have fulfilled these objectives, inaccessibility to the general population being one of the criticisms of the Constitution, which has emerged since the May 2000 crisis. Moreover, discussion in the Reeves Report and elsewhere appears to have been based on a preconceived notion that human rights agendas developed in the West are universal and fundamental. There is no evidence of consideration of whether such agendas are transferable across geographical, political, social and cultural boundaries. The Reeves Commission concentrated instead on choosing between the model provided by the European Convention on the one hand and the model provided by Canada and New Zealand on the other (see for example, paras 7.27 to 7.29 of the Reeves Report).
In addition to setting out a list of rights and freedoms, the Bill of Rights Chapter also established a Human Rights Commission (s.42). The functions of that Commission are to educate the public about the nature, content and origins of the Bill of Rights and the responsibilities of United Nations organs for promoting respect for human rights, and to make recommendations to the government about matters affecting compliance with human rights. In 1999, the Human Rights Commission Act was passed to confer further functions on the Commission, such as investigating allegations of human rights abuses and unfair discrimination, and to regulate the Commission’s procedure. The Act provided for appointment of a Director and employees (s.16). Subsequently, an able and active Director, Dr Shyster Shameem, was appointed and a program of human rights promotion and education commenced.
The Reeves Commission was faced with the unenviable task of meeting the three imperatives in its terms of reference and Mission Statement, which required arrangements to:
• take into account internationally recognised principles and standards of individual and group rights;
• guarantee full protection and promotion of the rights, interests and concerns of the indigenous Fijian and Rotuman people;
• have full regard for the rights, interests and concerns of all ethnic groups in Fiji.
The problem, of course, is that these three ideals are often competing. The Report contains ample evidence of a struggle to reconcile them. For example, the Commission had to consider how to deal with customary law. Section 100(3) of the 1990 Constitution incorporated this as formal source of law in order to give ‘a higher status to the customs and values of Fijians in the country’s legal system’ (Reeves Report, para 17.102). The Commission viewed the effect of this provision as ‘problematic’ and opted to leave the application of customary law to legislation (Reeves Report, para 17.103).
While the 1997 Constitution necessarily embodies a compromise on many points, it would be unfair to suggest that it does not protect indigenous interests. Suggestions that the attempted coup was necessary to ensure such protection ignore the protective measures already in force at that time. These include:
A ‘Compact’ governing interpretation of the Constitution and laws made under it. The principles in the Compact include:
The preservation of ownership of Fijian land according to Fijian custom (s.6(b)).
The rights of the Fijian and Rotuman people to governance through their separate administrative systems (s.6(d)).
In negotiations to resolve conflict between different communities, the continued application of the paramountcy of Fijian interests as a protective principle, so as to ensure that the interests of the Fijian community are not subordinated to the interests of other communities (s.6 (j)).
Affirmative action and social justice programs for the Fijian and Rotuman people, as well as for other communities, for women as well as men, and for all disadvantaged citizens or groups, based on an allocation of resources broadly acceptable to all communities (s.6(k); see also chapter 5).
A guaranteed 23 out of 71 seats in parliament for members elected by Fijians (s.51).
A guaranteed 14 out of 32 seats in the Senate for members appointed by the President on the advice of the Bose Levu Vakaturanga, (Great Council of Chiefs) (s.64 (i) (a)).
Entrenchment of legislation incorporating certain customary laws (s.185).
A mandate to parliament to legislate for the application of customary law and for dispute resolution in accordance with traditional Fijian processes and for the equitable distribution of royalties to customary land and fishing rights owners (s.186).
The Compact is an interesting feature of the Constitution. It sets out principles to guide the interpretation of the Constitution or any law made under it. However, its provisions do not confer substantive rights and are specifically declared not to be justiciable (s.7). The Compact has been used in the interpretation of the Constitution and in particular in the interpretation of rights regarding Senate appointments. In The President of the Republic of Fiji Islands v Kubuabola and Others (unreported, Supreme Court, Fiji Islands, Civ Cas 1/1999, 3 September 1999, p.8) the Supreme Court considered the particular protection of Fijian interests contemplated by s.6(j) to be subject to the more particular concept of power sharing amongst all communities in the case of interpretation of provisions dealing with political power (s.6(l)).
The constitutional loading in favour of indigenous Fijians did not prevent the appointment of a non-Fijian Prime Minister. The fact that such an appointment occurred after the first election held under the 1997 Constitution is regarded by some as the catalyst for the attempted coup on 19 May 2000, which metamorphised into the Interim Military Government in June of the same year. Would these events have occurred if a more cautious approach had been taken by the fledgling government? More particularly, if Mr Chaudhary had not been a strident trade unionist or had been prepared to take the role of Deputy Prime Minister, would the 1997 Constitution have been allowed to ‘settle-in’? And would its safeguards and protections eventually have proved themselves as an equitable ‘blue-print’ for harmonious government of the multi-ethnic society of Fiji? At the same time, would the Human Rights Commission have pursued the opportunity ‘to increase general awareness of human rights’ and to educate ‘public opinion’ to the extent required to bring about cultural change? It is impossible to say, and events have now come full circle to another military government and a country with ‘unfinished constitutional business’ (Reeves Report, para 1.1).
On 29 May 2000 Interim Military Government Decree No 1 repealed the 1997 Constitution. With what might be regarded as indecent haste when compared with the time it took the military to take action with regard to George Speight, the Fundamental Rights and Freedoms Decree was then made (Decree No 7, 15 June, 2000) to fill the human rights void. No doubt international opinion was a powerful force in this. The Fundamental Rights and Freedoms Decree is retrospective, being deemed to commence on 29 May 2000. In main, the decree follows the Bill of Rights word for word. Minor amendments to the old s.27(1)(c) and s.28(1)(d) (now s.8(1)(c) and s.9(1)(d) — rights of arrested, detained or charged persons to the services of a legal practitioner) take account of the Legal Aid Act 1996. References to Parliament are omitted in references to law making. Reference to the Supreme Court is omitted from s.22(6) (enforcement of rights) to reflect the abolition of the Supreme Court by the Administration of Justice Decree No 5, 8 June 2000.
Minor cosmetic amendments adjust numbering and lettering of clauses (see, for example, s.9(1) of the Decree which re-letters clauses to take account of the missing clause (i) in s.28(1) of the Bill of Rights) and replace ‘must’ with ‘shall’ in accordance with the preference of the new drafter. More significantly, s.19 of the Decree adds a new sub-section (11) to the old s.38, on which it is based. This states:
Nothing contained in this section shall preclude the enactment of any law or any programme or activity that has as its object and purpose the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race ethnic origin, colour, place of origin, gender, birth, primary language, economic status, age or disability.
This replaces Chapter 5 of the 1997 Constitution, which dealt in greater detail yet more restrictively with, ‘social justice and affirmative action’. Under s.44, exemption from the anti-discrimination provisions of s.38 was only granted in the case of programs designed to achieve equity of access to:
education and training;
land and housing;
participation in commerce; and
participation in all levels and branches of service of the State.
Section 23(2) is also of note, as it removes authority for the appointment of members of the Human Rights Commission from the President on the advice of the Prime Minister, following consultation by the Prime Minister with the Leader of the Opposition and the sector standing committee of the House of Representatives responsible for matters concerning human rights (s.42(4)). Instead appointments are made by the Head of the Military Government in consultation with the Judicial Services Commission. The Judicial Services Commission was re-established by the Administration of Justice Decree No 5, 8 June 2000 and the President of the Court of Appeal was added to the Chief Justice, the President of the Law Society and the Chairperson (now referred to as the Chairman!) of the Public Service Commission, as a member.
Section 24(4) merges s.3(b) of the 1997 Constitution, designed to guide interpretation of the Constitution as a whole, with the other factors to be taken into account by the courts in interpreting the rights and freedoms. Accordingly, in addition to reference to the duty to ‘promote the values that underlie a democratic society based on freedom and equality’ (s.24(4)(a), based on s.43(2)) courts must:
take into account developments in the —
understanding of the content of particular human rights; and
promotion of particular human rights (s24(4)(b)).
Section 24(6) is also new and provides that where there is inconsistency between the Decree and any written law the Decree is to prevail, ‘Subject to any law providing for or protecting the enhancement of Fijian and Rotuman interests’.
The Bill of Rights in the 1997 Constitution and its successor, the Fundamental Rights and Freedoms Decree, are premised on the assumption that international human rights norms are universal. The opposing view is that agendas developed in societies founded on individual rights may not be transferable to communities where the prevailing ethos revolves around duties. At the very least, such agendas need modification, to take into account the predominance of group values and the emphasis on duties and obligations rather than rights and privileges. In the Vanuatu Constitution, for example, this ethos is reflected in a non-justiciable list of fundamental duties (see Chapter 2, part 2).
Bernard Narakobi expressed the view that, in Melanesia, the cultural context demands recognition of the rights of collectivities.
… balanced human development requires a commitment to human rights, not as positivistic legal norms conferred by a sovereign upon its subjects, enabling each to do as he or she pleases, but with even greater emphasis on social obligations or responsibilities. If I have a right to education, I also have a duty to educate others, if not directly, then indirectly. If I have a right to life, I also have a duty to make sure others do not starve or suffer out of want which is beyond their ability to alleviate and which I am able to avert … In sum, there is a need to balance individual rights with group rights on the one hand, and personal obligations with group obligations on the other.
Notwithstanding these arguments, it is beyond dispute that promotion of human rights is a vital objective in all societies today. The purpose of a Bill of Rights is not to protect one individual’s rights against those of another. Neither is it just about protecting the rights of individuals from the abuse of public power, although this is a major purpose. It is also about proclaiming shared ideals and aspirations in order to build a fair and decent society, taking into account contemporary realities in the society in question. So, while it is argued that there is a need to explore the role of collectivities and to examine collective human rights in a context beyond existing geographical and philosophical boundaries (a view which is already gathering support in the South Pacific region), the complexity of Fiji’s society demands a comprehensive Bill of Rights rather than dictates against it.
The latest convert to the value of a Bill of Rights may well be George Speight. After he and his gang were arrested in late July 2000 they complained of police brutality. An editorial entitled ‘Dear George & Company’ in Fiji’s Daily Post (4 August 2000) provides an interesting illustration of just one context in which human rights abuses may appear and a fitting end to this paper:
We read with interest and utter amusement your version of how you and your group were treated after the military arrested you last week … That you took offence and are complaining about these abuses is your right. And your right is respected … But remember George, that for every right that you will fight for and that also goes for the collective rights of your lawless band of hooligans, there is a much larger abuse of rights that you must answer to. These rights were taken away from about 750,000 people when you and your trigger happy boys stormed Parliament, ousting the democratically elected government and inciting a spate of violence, lawlessness and political anarchy that has driven many people into the depths of despair. These people have rights too, George. They too were physically abused. They were verbally abused. They suffered psychological and emotional anguish, pondering where their next meals were coming from. Those who dared complain were threatened by the intimidating tactics that you and your men employed … At least four policemen were brutally beaten and tortured, two soldiers shot and the late Constable Filio Seavula was killed … These are some of the rights that you abused … But it looks like George, that you have forgotten all these and you have just selectively remembered how you and your men were injured and abused. Boy, George, you have such a short memory.
[*] Jennifer Corrin Care is Associate Professor, School of Law, University of the South Pacific.
 Reeves, Sir Paul, Vakatora, Tomasi Rayalu Lal, Brij Vilash, ‘The Fiji Islands: towards a united future: Report of the Fiji Constitution Review Commission’, Government Printer, Suva, Fiji, 1996.
 See further Corrin Care, J., ‘The Status of Customary Law in Fiji Islands after the Constitutional Amendment Act 1997’, 2000 JSPL 1.
 Lo Bilong Yumi Yet, University of the South Pacific, 1989, p.138.
 See, for example, Tomas, N. (ed.), Collective Human Rights of Pacific Peoples, Auckland, 1999.