1.0       Background to human rights laws in Fiji: the St Julian connection

The very first Constitutions of Fiji (commonly known as King Cakobau Constitutions) contained in them a set of human rights principles modeled on the French and American Constitutions. The far-sighted person apparently responsible for placing core rights principles in these Constitutions was an individual by the name of Charles James Herbert de Courcy St Julian (1819-1874), a journalist (with many other talents) who was in 1872 appointed the first Chief Justice and Chancellor of the Kingdom of Fiji. Interestingly, St Julian was recommended for a pension of 600 pounds by Sir Hercules Robinson but he died in November 1874, apparently before he could collect it.

The St Julian name will be familiar to many in Fiji (I myself went to school with a Charles St Julian in the 1970s) and, by all accounts, the first St Julian in Fiji was an accomplished gentleman even before he landed in Fiji in 1871 as a special commissioner of the Hawaiian Government to investigate an alliance between Hawaii and Fiji. He was a constitutionalist par excellence and he encouraged the independent states and tribes in ‘Polynesia’ to develop law and governments on the Hawaiian constitutional model, which had incorporated in it the French Declaration of the Rights of Man and of the Citizen (1798).

As a journalist, St Julian was a prolific writer and chronicler and later became an elected representative in town council elections in Australia before moving to Fiji and becoming Chief Justice and Chancellor. He died barely one month after Cession, survived by his second wife and 10 children.

Once Fiji became a colony of Great Britain in 1874, there was no further need for human rights laws or a ‘Declaration of Rights’ as it was called in those days, to be part of any formal constitution of Fiji because the constitutional laws of England, including the Magna Carta and the Bill of Rights of 1688, applied to the colonies after Cession.

2.0       The 1970 Constitution and Human Rights

The 1970 Independence Act or the first Constitution of Fiji contained an extensive set of provisions in Chapter II called Protection of Fundamental Rights and Freedoms of the Individual. Access to the Supreme Court (now called the High Court) for human rights applications was through Section 17 Enforcement. While the Chief Justice was empowered to make rules for human rights redress to the Courts pursuant to section 17, no rules were ever made and the records show that not too many cases were taken to the Supreme Court for redress for human right violations by the State. Between 1970 and 1984 only 15 cases were taken to court under Chapter II provisions, the last one being the 1984 case of  Ratu Sir Kamisese Mara v Fiji Times and Herald Limited, Garry Barker, Vijendra Kumar (Court of Appeal 1984).

The rights protected in the first Constitution of Fiji not only reflected those contained in the 18th century Constitutions of France and United States, but also drew upon the Universal Declaration of Human Rights (UDHR) adopted by all UN nation states in 1948.

In 1987 the 1970 Constitution was abrogated by Sitiveni Rabuka. This introduced an era of gross human rights violations inflicted upon the people of Fiji. The lack of constitutional protection for human rights introduced an unprecedented era of lack of access to the courts for human rights redress. Between 1984 and 1990 no applications were made to the court for human rights redress.

3.0       The 1990 Constitution and Human Rights

The 1990 Constitution restored constitutional rights to the people of Fiji by way of Chapter II, titled Protection of Fundamental Rights and Freedoms of the Individual. Direct access to the High Court was given once again through the rights chapter in the Enforcement provision, section 19. Indeed the number of cases taken to the courts after 1990 through this constitutional direct access mechanism shows that the people of Fiji embraced access to rights laws once they were available again- 35 human rights cases were decided by the courts between 1993 and 1996. Interestingly, the very first human rights application made under the 1990 Constitution was that of Sakeasi Butadroka v Attorney General  (1993).

4.0       The 1997 Constitution and Human Rights

The 1997 Constitution (1997 Amendment Act) was promulgated with a comprehensive and very modern set of human rights principles contained in Chapter 4 Bill of Rights. This chapter of the Constitution also placed emphasis on its own primacy even within the Constitution because all institutions of the State were bound by the Bill of Rights, including Parliament, the Executive government (which includes the President), and the Judiciary. This meant that none of the state institutions of Fiji (executive, legislative or judicial) could make a law or deliver a judgment, or assent to a Bill, or make any administrative decisions at all at any level, local or national, that had or would have the effect of violating any of the principles contained in Chapter 4 Bill of Rights (see section 21 1997 Constitution). For the first time in its history Fiji had moved from the era of parliamentary sovereignty to that of constitutional supremacy. The Preamble stated that the people of Fiji had given the Constitution to themselves.

Section 41 (10) of the 1997 Constitution gave the Chief Justice power to make rules to allow any person’s access to the High Court for human rights redress applications. In 1998 the Chief Justice (Justice Sir Timoci Tuivaqa) made and had gazetted a set of Rules called the ‘High Court (Constitutional Redress) Rules 1998’. Section 3 of the Rules allowed a person to make an application to the High Court by way of motion supported by affidavit’, claiming a number of remedies, namely, declaration, injunction and ‘such other order as may be appropriate’. In other words, a declaration or even an injunction against the State could be prayed for in human rights redress applications made under the 1997 Constitution.

The enactment of the Human Rights Commission Act 10/99 allowed another form of access for human rights redress. A person could choose whether he would take his complaint for a human rights violation to the court directly, that is, through the High Court Constitutional Redress Rules 1998, or to the Commission first for investigation, and subsequently, if substance was found, to the Court by the Human Rights Commission’s Proceedings Commissioner. The Proceedings Commissioner was the member of the Commission who was required to have the legal qualifications of a judge and who was appointed specifically for the purpose of proceedings. Between 1999 and 2009 most people with human rights grievances opted for the Commission application procedure because the Commission had become effective in court almost immediately from 1999, and because the procedure was free.

5.0       The ‘purported’ abrogation of the 1997 Constitution in 2000

In 2000 two people promulgated Decrees to remove the 1997 Constitution- the first was George Speight who did so soon after his takeover of Parliament in May 2000, and subsequently, a month or so later, the second person, the Commander of RFMF Commodore J. V. Bainimarama.

It is now common knowledge that a farmer, Chandrika Prasad, whose rights had been violated during the upheaval, decided to challenge the abrogation of the Constitution on the basis that his human rights had been protected by Chapter 4; with the Constitution abrogated Prasad said he had no recourse to the courts for a declaration of his rights and for protection from further violations. He asked the High Court to declare whether the Constitution had been abrogated.

Justice Gates of the Lautoka High Court ruled that the Constitution, under the rules of constitutional law, had not been abrogated in fact. This Ruling had the effect of restoring the Constitution to the people of Fiji. The Government of the day, claiming the doctrine of necessity allowed the Constitution to be removed, appealed to the Court of Appeal. The Court of Appeal was scathing in its assessment of the issue. As the Court (Casey J speaking for the 3-member Bench) said:

‘The doctrine of necessity does not authorize permanent changes to a written constitution, let alone its complete abrogation’.

In his earlier High Court decision, Gates J had also extensively surveyed the application process for human rights redress mechanisms in Fiji, even in the factual situation where someone had put in place decrees that said that the Constitution had been abrogated or revoked. Justice Gates said: ’no set procedure for applying is provided in the Constitution….as indicated by the cases, I consider that practice and procedure take second place to considerations of gravity, justice, public interest and the upholding of the rule of law in constitutional cases. Included in the concept of justice here will be that of ease of access for the litigant’. He went on to say in a delightfully worded paragraph:

“It is somewhat disappointing therefore to observe the Attorney’s officers attempting to deny the Applicant jurisdiction to bring this important case, and to deny him that access to the courts. When the trend of the cases has been all in favour of permitting access, and since this applicant was obviously no frivolous busybody, there was no proper basis for attempting to stifle his litigation. As officers of the court those directing the litigation should have realised these were not objections to be taken at this time in Fiji’s crisis. In the current tragic scale of things, technical objections of this kind could only weigh as buzzing gnats in comparison with events on the grander stage, off from which they must surely be ignominiously swatted”.

In spite of the ‘abrogated’ Constitution, Justice Gates referred in his judgment to the High Court (Constitutional) Redress Rules of 1998 for the procedure for making human rights redress applications. Clearly, the purported removal of the Constitution did not mean that a person was denied an action in human rights nor was that person prevented from making his or her application to the courts.

Such constitutional redress application procedures have been allowed for some years by courts in the Asia-Pacific jurisdictions- for example the Indian Supreme Court will accept even a letter written to it by any person claiming a human rights breach and the Sri Lankan Constitution has some notable provisions allowing persons to petition the Supreme Court directly whether or not that person has also complained to the Human Rights Commission of Sri Lanka. In the Chandrika Prasad case Gates J quoted the Ugandan Chief Justice regarding a similar approach to human rights applications taken by the Ugandan Courts.

The one thing that can be said of Fiji post -2009 is that there is now no human rights procedure available to persons for human rights redress as was available under the 1970, 1990 and 1997 Constitutions.

6.0       The revocation of the 1997 Constitution in 2009 and Human Rights

The 1997 Constitution was revoked in 2009, this time by Presidential Decree (Fiji Constitution Amendment Act 1997 Revocation Decree 2009). Therefore the Chapter 4 Bill of Rights was also removed.

The Human Rights Commission Act 10/99 is now the Human Rights Commission Decree. However, Section 38 (5) of the Decree allows any person to have access to the High Court for a breach of his or her human rights. This section states:

(5) Nothing in this section limits the right of any person to apply to the High Court for redress for a contravention of his or her human rights; Provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or as may be made by the President, shall be brought before the High Court.

The first part of this section states that any person can apply to the High Court for redress for human rights violations; but the second part ‘..Provided however…etc’ is the crunch point of this section. This section should be read carefully since it is the only provision in existence which allows persons to make human rights applications pursuant to the human rights law of Fiji.

The question is whether this provision of the Human Rights Commission Decree stops the court from exercising its jurisdiction if a Decree is or may be promulgated by the President which has the effect of violating a person’s human rights.

As for making complaints to the Human Rights Commission of Fiji, clearly the Human Rights Commission exists in terms of the physical office and has staff but the Commission itself (ie members of the Commission) has not been appointed as no names have been gazetted). The staff of the Commission can only work under the direction of the Commission. Section 18 (2) of the Human Rights Commission Decree states that the Director and other staff of the Commission are subject to the direction and control of the Commission. If there is no Commission appointed, the staff cannot do anything. What the staff of the Commission may be doing currently would be a good question to ask.

7.0       Attorney General’s statement Fiji Times Saturday 30 July 2011

On 30 July the Fiji Times reported a statement from the Attorney General that the State will consider whether to apply for a strike out of the Burness v FNPF, The Republic of Fiji and the Attorney General [HBC No 183 of 2011] human rights action in its ‘entirety’, for want of jurisdiction (of the court) and abuse of process (of the court). What the Attorney General appears to be saying is that the Court’s jurisdiction is completely ousted from hearing any human rights application at all as long as a Decree is in place or in case of such Decrees as may be made by the President (therefore including future Decrees whatever they may be).  But any such application the Attorney General may make to strike out the Burness human rights action will be up to the Court to rule on and also on other human rights cases that are brought before it. Much international attention will naturally be drawn to the Court’s decisions in this regard, when the time comes.

Given the importance of human rights internationally and the fact that Fiji has a history of human rights constitutional and legal protection since the 1870s, it would be unfortunate if the people of Fiji are to be denied their access to court irrespective of how section 38 (5) of the Human Rights Commission Decree is interpreted. This will not only eliminate all human rights protection of the people of Fiji from Decrees but it would be a breach of international law to fail to provide any person in a UN nation state with human rights protection. This is particularly so in terms of a person’s access to courts which is an ultra-constitutional fundamental human right.

Dr Shaista Shameem is Associate Professor of Law, teaching Constitutional Law, Administrative Law, Employment Law and Jurisprudence, at the University of Fiji. She is currently undertaking her Doctorate in Juridical Science on the subject of Constitutions. She is counsel for David Burness, and others in the proposed class action against FNPF’s intended plan to reduce pensions. Dr Shameem 2004-2010 served as UN Human Rights Expert on the subject of Mercenaries and Private Security and Military Companies. In 2005 she was appointed by the UN Secretary General, with Justice Bhagwati and Professor Yokota to review the Judicial Process of Timor L’est in light of the massacres of 1999. In 1999-2009 she was initially Director and subsequently the Ombudsman and Chairperson of the Human Rights Commission of Fiji.