HUMAN RIGHTS
PARDON ME: WHAT IS FIJIAN RECONCILIATION AND RESTORATIVE JUSTICE?

While the world is concerned about politically motivated acts of terrorism and human rights abuses, the Fiji government of Fiji is intent on introducing a law to grant amnesty to all kinds of terrorists - the Reconciliation Bill.

By JONE DAKUVULA in Suva

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The Fiji Times Editorials headed "If only" (FT 05/05/05) and "Political Correctness" (04/05/05) on the Fiji government’s proposed Reconciliation Bill were excellent in outlining what happened to the victims in 2000 and how the proposal now threatens the credibility of the rule of law in Fiji. It will be recalled that when the news media first published information about the Bill and the intentions of the government, the Prime Minister and Attorney General both denied it.

The Attorney General Bale claimed he had no knowledge of the Bill. Two days later the Prime Minister said this was the idea of the SDL Party, and not because of pressure from the CAMV. Both men then started briefing the news media more fully! This was an indication that more remained hidden and still to be revealed. In the process of writing this article on Friday, I received a copy of the Bill. I read quickly through it. My worst fears were confirmed. This Bill is indeed about the granting of pardons to everyone now in jail for coup-related offences. But more on that later.

The Prime Minister’s statement on the purpose of the Bill was confusing on a number of issues. On the one hand he said the proposed Bill would not grant a general pardon to people already convicted but, on the other hand he said the Commission would recommend to the President the granting of "amnesty "in cases of violations of human rights judged to be politically motivated".

Unconstitutionality
Legal advice that Citizens Constitutional Forum (CCF) has obtained says that the Reconciliation Bill may be inconsistent with the Fiji Constitution in these areas. First, Section 115 of the Constitution prevents the President from exercising the power to grant pardons to convicted persons, except on the advice of the Commission on the Prerogative of Mercy. It is unclear whether this also precludes an amnesty for people who have not yet been convicted.
Secondly, the proposal to grant immunity from prosecution for individuals who committed coup-related offences but yet to be convicted may constitute an unlawful fetter on the discretion of the Director of Public Prosecutions to prosecute offenders.

Thirdly, the grant of pardons or immunity to individuals, based on the proposed Commission’s judgment that their offences were politically motivated may be in breach of Section 38 of the Constitution. This section guarantees equality before the law and defines the categories of unfair discrimination, which include discrimination on the ground of ethnicity, political opinion and religious beliefs. The Bill will discriminate in favour of criminals who violated human rights with the excuse that they were motivated by the political objective of overthrowing a democratically elected government.

How will the Commission be able to distinguish "political motivation" and, the sense of "performing traditional obligations" from criminal intention in an act that constitutes a serious violation of human rights? The Attorney General has already admitted publicly this difficulty in the Bill and the need to tighten up the definition.

The next question is why should a claim of political motivation be an excuse for a criminal act, or a "serious violation of human rights" for that matter? We are also still to learn what is required to categorise a human rights violation "serious".

New Commission to release prisoners?
had The people already convicted and sentenced for coup related offences probably all political motivation for their criminal acts. Neither the Prime Minister nor the Attorney General has ruled out the possibility that these people might have access to the proposed Reconciliation and Unity Commission so they can also be pardoned.

Two weeks back I had some reason to suspect this Bill was intended for the prisoners. Last week a person who was widely thought to be the prospective candidate of the SDL in the Cakaudrove West Fijian Communal Constituency told me he was not going to be the candidate because his brother, who is currently serving a six-year jail term, is going to stand for his former Constituency again! Indeed, there are a few people now in jail that want release so they can stand for the SDL or CAMV in the next election!

Now that I have seen Section 21 of the Bill dealing with applications for amnesty, my suspicions are confirmed. Section 21 says "any person" may apply for amnesty for any criminal act he or she committed as part of a political uprising, disturbance or event in 2000 and "on behalf of a political group, organisation or body of which the applicant was a member, agent or supporter".

Section 21(2) promises that "in dealing with applications for amnesty, the Commission shall give priority to persons in custody." The section also gives power to the Commission to request a court hearing with a civil action by a victim to suspend the proceedings until the Commission has disposed of any relevant application for amnesty.

The Commission can also request the courts to postpone the trials of those charged with coup related offences until the Commission has disposed of relevant applications for amnesty.

When the Reconciliation Commission recommends for the granting of amnesty to the President, the President "shall act on the advice". He cannot reject the advice. The amnesty will have the effect of removing all criminal and civil liability for the person in question. If the person is already serving a term of imprisonment, he "shall be released from prison forthwith". The amnesty will also "have the effect of erasing that conviction." The granting of amnesty will also serve as a legal bar to any other prosecution based on the facts upon which the amnesty was determined or granted.

So there we have it! The Government wants this Commission not just to stop further investigations and prosecutions, but also to enable those serving under sentences in jail, to apply for and receive pardons for gross violations of human rights because their intentions were "political" rather than criminal! These pardons will clear them of their convictions, thus enabling them to stand for Parliament.

Fijian restorative justice?
The Prime Minister had also referred to the concept of "restorative justice" as part of this alternative approach and claimed this has been endorsed by the United Nations. He says:

"It involves the victim, the offender and the community. The underlying theme is that crimes or wrong doing are violations of people and relationships, rather than offences against the State"

He also said restorative justice is not new, and that it exists in Fijian culture in the practices of "veisorosorovi" or "matanigasau".

However, there are some important elements of Fijian restorative justice that the Prime Minister’s statement fails to mention.

First of all, in Fijian culture, "matanigasau" or "veisorosorovi" is only undertaken after there has been prior agreement between the perpetrators and the victims, and especially by the latter, that such a procedure is appropriate. This avoids a unilateral approach by the perpetrating party that could result in rejection, shame and deepening of the injury to the victims.

It also means acceptance by the perpetrator that a serious wrong has been committed, which has damaged relations between the individuals, the families and their communities. This will be admitted at the reconciliation ceremony. Forgiveness will be requested from the victims and reparations offered. It is clear therefore that the offender cannot force the offended partly to accept matanigasau.

The spirit of this Fijian practice was not observed by government in its Reconciliation Week last year. The representatives of the perpetrators did not ask the victims first, whether matanigasau was acceptable to them. The victims were just expected to turn up. And when they did not, the Matanigasau was presented to the President, who was not a victim. The government has again made the same mistake with its Reconciliation Bill - no prior consultation and agreement with the victims.

The Prime Minister also argued that the Government is not only promoting restorative justice, but also the Christian sense of reconciliation which he claims is consistent with Fijian customs. In fact he demanded that the victims should forgive without any conditions because he says this is the Christian and Fijian sense of reconciliation.

He puts the cart before the horse. Forgiveness, reconciliation and unity are the ends of a process of truth telling about wrongs, apologies and just redress of the injury to the victims. Their hurt is acknowledged, their dignity restored and their grievance redressed. In return, they forgive and reunite with the wrong doers.

Justice is what the victims want so that forgiveness can be achieved individually and communally. If the victim does not believe that the process of reconciliation will achieve justice for them, their families and communities, then neither forgiveness and healing nor mending of relations will be achieved.

Furthermore, contrary to the Prime Minister’s claim, restorative justice in the modern context is not a replacement for the criminal justice system, especially for major crimes and serious human rights violations. In countries where restorative justice is pursued as a policy alternative, the police and the courts remain to enforce the law when the restorative justice system fails to achieve the objective of reconciling and mending relations.

In 2000 the CCF sought the advice of current South African Chief Justice, Pius Langa, then Commonwealth Envoy to Fiji, on the idea of a Truth and Reconciliation Commission in Fiji. He said the TRC was appropriate for South Africa but not for dealing with coup related offences in Fiji. Justice Langa said all that is needed here is an independent Judiciary and effective investigation and prosecution by the police and DPP to enforce the rule of law.

The Prime Minister’s statement does not realise that the same principles that are observed in matanigasau apply to modern Statute based reconciliation initiatives such as the TRC. There has to be acceptance of responsibility by the leaders and the perpetrators for their crimes and wrong actions before forgiveness can be achieved and redress accepted by the victims. The difference between a genuine Matanigasau and the government’s Bill is that the latter seems to be a vehicle for the leaders non-acceptance of responsibility. It is an easy escape for the perpetrators, because the State will pay reparations for their criminal acts and they get amnesty that clears them of personal responsibility.

The government’s proposals for a Reconciliation and Unity Commission have been rejected by all opposition political parties as merely a General Election ploy to win votes and maintain the SDL’s coalition with the CAMV. This opposition could have been avoided had the Government consulted the Fiji Labour Party and United General Party and made this a bipartisan Bill. It is also noteworthy that no religious organization from the Indian community was consulted.

While the world currently is concerned about politically motivated acts of terrorism and human rights abuses, the government of Fiji with this Bill, is intent on introducing a law to grant amnesty to all kinds of terrorists.

Civilised law has never allowed legal excuse for ideologically motivated criminal acts. If this government has its way, Fiji will probably be the first country to allow this under the guise of restorative justice and observance of traditional obligations to the chiefs.