Fiji’s Politics: Dr Shaista Shameem’s 10 Questions for Politicians Campaigning for 2014

It is time to ask a few pertinent questions for the current or would be politicians to answer as they prepare for their campaigning to 2014. 

 These are issues of concern to constituents in all democratic countries but especially to people living in transitional contexts like Fiji where an authoritarian political framework is transforming to a democratic one. Politicians’ (correct) answers to the questions can determine who we will vote for: 

The First Question is on Leadership: What qualities of leadership would you bring to Fiji if you win your seat in the elections and how would you ensure that the voice of your constituents will consistently be heard in Parliament? 

The Second Question is on Economic Growth: What is the economic situation of Fiji now and how will you improve on that? Related to this question, what is your deadline for this improvement in economic growth to create a surplus?  

The Third Question is on Social Services: Can you improve the social services currently in place? What are your ideas about uplifting services for those below the poverty line; disabled persons; children; pensioners who have lost their pension funds; and disadvantaged people’s access to land, education, public services and employment

The Fourth Question is on Foreign Relations: How do you intend to improve relations with neighbouring countries and the international community? Would you support a ‘Commonwealth of the Pacific’ or a ‘Pacific Union’ to facilitate new types of relationships? 

The Fifth Question is on Access to Information: How soon after the election will you enact a Freedom of Information Law, if you win? 

The Sixth Question is on Education: What is your deadline for reforming the old-fashioned and out of date education curriculum of Fiji?

The Seventh Question is on Relationships: What are your proposals for improving relations between and among the people of Fiji: what is your proposal for society-wide meaningful  conversations to take place?

 The Eighth Question is on Security: What are your proposals for improving rehabilitation for prisoners and convicted persons? When do you think people would be able to remove burglar bars from their windows and doors? 

 The Ninth Question is on Employment: what are the correct unemployment figures for Fiji and what are your plans for reducing these figures without blaming lack of economic growth or investment?

The Tenth Question is on Art and Culture: What are your plans for improving the look and displays of the Fiji Museum; what budget will you allocate to improving the arts and culture scene of Fiji to modernise it?

If readers have any questions they wish put forward they can contact Dr. Shaista Shameem or the Editor via the comments icon.

Analysis of the Draft Constitution of Fiji released by the Interim Government of Fiji on 21 March 2013

Click the following link:>ISLP Analysis of the Draft Constitution for Fiji

Limitations on Media Freedom can only be imposed in a free and democratic society and must be reasonable and justifiable in such a society.

By Dr Shaista Shameem

Adapted from Article 19 as applicable to Fiji in view of recent statements and speeches made about limits to freedom of expression in the Fiji context.

Most expression is completely harmless and protected under the right to freedom of expression from interference by the state.

However, ‘seeking, receiving and imparting information or ideas’ includes expression which few societies could tolerate, such as incitement to murder, promotion of racial discrimination, or sale of pornography to children. As a result, freedom of expression is not absolute and can be limited when it conflicts with other individual or group rights. 

BUT, international law declares freedom of expression to be the rule. Limitations are the exception, permitted and justified in a free and democratic society ONLY to protect:

the rights or reputations of others

national security

public order

public health

established and universal (not necessarily religious) morals, for example ban on cruelty to children, sexual slavery, labour trafficking, expression of hate speech.

Limitation is legitimate if it is stated in a domestic law BUT, this law must fall within the very narrow conditions defined in the three-part test in Article 19(3) of the ICCPR:

 

1. ‘…PROVIDED BY LAW…’

The right to freedom of expression cannot be limited at the whim of a public official, particularly in an authoritarian context. They must be applying a law or regulation that is formally recognized by those entrusted with law making, i.e, parliament.

The law or regulation must meet standards of clarity and precision so that people can foresee the consequences of their actions. Vaguely worded edicts, whose scope is unclear, will not meet this standard, and are therefore not legitimate. For example, vague prohibitions on ‘sowing discord in society’ or ‘painting a false image of the State’ would fail the test.

The rationale

It is only fair that people have a reasonable opportunity to know what is prohibited, so that they can act accordingly

A situation where officials can make rules on a whim is undemocratic. Decisions limiting human rights must be made by bodies representing the will of people

Vague laws will be abused. They often give officials discretionary powers that leave too much room for arbitrary decision-making

Vague laws have a ‘chilling effect’ and inhibit discussion on matters of public concern. They create a situation of uncertainty about what is permitted, resulting in people steering far clear of any controversial topic for fear that it may be illegal, even if it is not.

2. ‘…LEGITIMATE  AIM…’

There must be a legitimate aim to limit the right to freedom of expression. The list of legitimate aims is not open-ended. They are provided for in Article 19(3) of the ICCPR: ‘…respect for the rights and reputations of others, and protection of national security, public order (ordre public), public health or morals’. They are exclusive and cannot be added to.

The rationale

Not all the motives underlying governments’ decisions to limit freedom of expression are compatible with democratic government. For example, a desire to shield public institutions of the state (i.e. who are paid by the public purse) from criticism can never justify limitations on free speech

The aim must be legitimate in purpose and effect. It is not enough for a provision to have an incidental effect on one of the legitimate aims. If the provision was created for another reason, it will not pass this part of the test.

3.‘…NECESSITY…’

Any limitation of the right to freedom of expression must be truly necessary. Even if a limitation is in accordance with a clear law and serves a legitimate aim, it will only pass the test if it is truly necessary for the protection of that legitimate aim. If a limitation is not needed, why impose it?

In the great majority of cases where international courts have ruled national laws to be impermissible limitations on the right to freedom of expression, it was because they were not deemed to be ‘necessary’.

 

The rationale

A government must be acting in response to a pressing social need, not merely out of convenience. On a scale between ‘useful’ and ‘indispensable’, ‘necessary’ should be close to ‘indispensable’

A government should always use a less intrusive measure if it exists and would accomplish the same objective. For example, shutting down a newspaper for defamation is excessive; a retraction (or perhaps a combination of a retraction and a warning or a modest fine) would offer the victim of defamation adequate protection

The measure must impair free expression as little as possible. It should not restrict in a broad or untargeted way, as that could interfere with legitimate expression. For example, it is too broad to ban all discussion about a country’s armed forces in order to protect national security

The impact of the measure must be proportionate and the harm that it causes to free expression must not outweigh its benefits. For example, a limitation that provides only partial protection to someone’s reputation but seriously undermines free expression is disproportionate

A court must take into account all of the circumstances at that time before deciding to limit freedom of expression. For example, it could be legitimate to limit freedom of expression for national security reasons during a conflict but not during peacetime

The European Convention on Human Rights (ECHR) narrows the third test by requiring limitations to be ‘necessary in a democratic society’. This wording is preferable as it clarifies that the purpose of the limitation must never be to shield governments from either criticism or peaceful opposition.

Courts have broadened public criticism of state institutions, even of itself, in non-democratic contexts- the test is whether it is ‘fair comment’ in all the circumstances of the case. Of course courts also have to be cautious that they would survive in that context- nevertheless, the broader picture is survival of access to justice and not just to law which could be draconian.

WHAT IS A ‘LIMITATION’ OR ‘RESTRICTION’?

International courts have generally judged that any action by a public body that has an actual effect on people’s freedom of expression constitutes a ‘restriction’ or ‘limitation’.

The nature of the action is irrelevant. It could be anything from a law to an internal disciplinary measure

The nature of the public body is irrelevant. It could be legislative, executive or judicial, or a publicly owned enterprise

The extent of the action’s impact is irrelevant. Any discernible effect on the ability of one or more people to express themselves freely is a restriction.

The ECHR again narrows the definition of a limitation, requiring the three-part test to apply to any “formalities, conditions, restrictions or penalties” under Article 10(2).

Ultimately, any individual freedoms, including of the media, can be limited by individuals deciding in concert, for example through a parliament. Without that consensus-based decision, a limitation on freedom which may be imposed by any of the arms of the state will consistently be held up to public scrutiny and criticism. 

The draft 2013 Constitution in Fiji, by removing the words ‘as long as the limitation is reasonable in a free and democratic society’ from the Bill of Rights chapter encourages greater public scrutiny of limitations placed on people’s rights, including freedom of expression and the media.

The legal foundation of Freedom of the Media is the people’s right to information. 

If the mass media are controlled or managed (by self-censorship, by multi-national companies, or by state law or judicial decisions), it means that the people do not have access to vital information that may affect their lives and livelihood.

Dr Shaista Shameem was a journalist with the Fiji Times and Herald 1976-1979 and columnist 1979-1983.

Comments on the Government’s draft Fiji Constitution 2013 in response to Government’s request for feedback

By Dr Shaista Shameem

My few short comments on the Government’s draft 2013 Constitution are as follows:

1. General

The main principles of constitutional governance promoted by the Government in its public statements are:

(i) elimination of institutionalised racial discrimination; 

(ii) elimination of corruption and bad governance; and 

(iii) protection of all constitutional rights, including economic, environmental and social rights.

2. Whether the draft Constitution 2013 is consistent with the Government’s expressed principles of constitutional governance and with international law. 

(i) Elimination of institutionalised racial discrimination

 The draft Constitution 2013 provides equal rights for all irrespective of race or ethnicity. 

Problem:

The draft does not accord with important 2012 recommendations of the United Nations Committee on the Elimination of All Forms of Discrimination which Fiji is obliged to follow as a State Party to the International Convention on the Elimination of All Forms of Discrimination. 

The CERD Committee recommended to the Fiji Government as follows:

(a) Disaggregated data to be made available on the socio-economic situation of Fiji’s different ethnic groups to show which groups suffer socio-economic disadvantage

(b) Fiji to impose special measures (affirmative action) to improve the participation of minority groups in public administration and politics since, currently, minority groups are disadvantaged in these areas. Any special measures to be based on disaggregated data which should be publicly available.

(c)  Fiji to enact specific legislation against racial discrimination- especially law    which criminalises racial motives as an aggravating factor in criminal activity.

(d) Fiji to secure the free, prior and informed consent and consultation of the indigenous peoples regarding their permanent rights as a group.

(e) In 2013 Fiji to report back to the Committee on (i) minority participation in public and political life and its affirmative action plans to restore balance in these areas; (ii) disaggregated data on protection of economic, social and cultural rights of minority groups; and (iii) rights of indigenous peoples.

My Recommendations on (i): 

(i) that the Fiji Government ensure that the draft 2013 Constitution is consistent with the 2012 recommendations of the CERD Committee so as to eradicate institutionalised racial discrimination in Fiji..

(ii) that the Fiji Government declare, in good faith and in adherence to its own theory of constitutional governance, that individuals and groups in Fiji can petition the CERD Committee through the Article 14 procedure of the Convention on the Elimination of All Forms of Racial Discrimination: 

Art. 14 CERD:  A State Party may at any time declare that it recognises the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State party of any of the rights set forth in this Convention.

(ii) Elimination of Corruption and Bad Governance

The draft 2013 Constitution contains the section 141 provision on accountability and transparency of all public officers in the declaration of their assets, liabilities and financial interests.

Whistleblowers will be protected by law.

Problems:

(i) There is a clash between section 141 wide-ranging right of the public to personal information of public officers and the right to personal privacy protected by section 24, as well as the right to security (especially security of family members including children) provided by section 130 (2) of the Constitution.

 (ii) The removal of the Office of Ombudsman from the draft 2013 Constitution means that the free service previously available for people alleging mal-administration or misconduct by public officers has been eliminated.

My Recommendations on (ii): 

(i) Section 141 should contain limitations on the type and extent of public access to personal information

(ii) The Ombudsman’s Office as a free (constitutional) public service for investigation of maladministration should be retained in the Constitution (as per the People’s Charter) despite the new section 16 Executive and Administrative Justice which can only be enforced by the courts, thus making it expensive and cumbersome for the ordinary people to access.  

(iii) Constitutional protection of all human rights, including economic, environmental and social rights

Additional rights have been formally included in the Government’s draft Constitution, incorporating elements from the Social Justice (Compact) provisions of the 1997 Constitution. 

Problems: 

(i) The Bill of Rights provisions do not include an important clause to curb absolute state authority – missing is the phrase ..’as long as it (State limitation of rights) is reasonable and justifiable in a free and democratic society’.  This phrase was included in all the relevant provisions of the 1997 Constitution and is a feature of international human rights law. 

The phrase means that it is permitted for a State to limit some (not all) fundamental rights as long as those limitations ‘would be reasonable and justifiable in a free and democratic society’.

This is the most serious flaw in the Government’s draft Constitution and affects the whole Constitution because it allows any government to impose limits on people’s rights even if those limits would not be allowed in a free and democratic society. The lack of justification of state limitations of rights to the courts is not cured by Sections 3 and 7 interpretation sections of the 2013 draft Constitution. 

(ii)  The definition of human rights is not included in the interpretation section of the Constitution

My Recommendation on (iii) 

(i) The phrase ‘…as long as the limitation is reasonable and justifiable in a free and democratic society’ should be included in each relevant rights limitation in the Constitution. Without that inclusion, the Government’s draft Constitution 2013 is not fully human rights compliant, contrary to the Government’s statements to the people that their rights are protected by its draft. 

(ii) In view of the double-entrenchment of the Constitution – because any amendment can only be made by both Parliament and a public referendum with two thirds majority of the registered voters voting for it- it is very important that this phrase is included in the Constitution.  

 (iii) The definition of human rights should be included in the interpretation section of the Constitution. 

3. Conclusion

Despite its good points, the Government’s draft constitution 2013 does not represent a ‘social contract’, based on equality between the people of Fiji and the State, which is the fundamental principle of constitutional law.

 In important respects it does not follow even its own expressed principles of constitutional governance.

 It is an authoritarian constitution where the State’s authority is favoured above people’s rights, as evidenced by the Bill of Rights chapter, despite additional rights being provided. 

It also ignores the CERD Committee’s 2012 recommendations on minority group protection.

A proper and informed discussion, rather than the rushed roadshow currently being performed by government, would have allowed the people of Fiji to have a meaningful input into what would be the supreme law directing all their actions in future in their own country. 

With its draft 2013 Constitution, the Government seems to have lost a wonderful opportunity to write law in the public interest. 

TWO IMPORTANT RECOMMENDATIONS: (i) The Government should comply with the recommendations of the CERD Committee; and (ii) the people of Fiji can insist that the phrase ‘…as long as any limitation (of rights) is reasonable and justifiable in a free and democratic society’ be added to each relevant provision of the Bill of Rights chapter. The inclusion of this phrase will cure many of the shortcomings of the Government’s draft Constitution 2013.

April 2013

Click on the following link for an insight of what is to come:
http://www.youtube.com/embed/IfJemqkby_0?rel=0

As work begins on analyzing the public submissions on the draft constitution, Attorney General Aiyaz Sayed-Khaiyum said they understand that some members of the public want further elaborations to certain sections.

Sayed-Khaiyum said for example, although itaukei land is protected with all other types of property and culture in the Bill of Rights, some people have said that they want a specific section on itaukei land.

Sayed-Khaiyum said that he cannot say which specific amendments will be made because the Office is in the process of looking at all the submissions.

It is common knowledge that this man is running Fiji, HE makes the rules that we all have to live by, HE plays the tune that everyone has to dance to…EVERYONE.. EVERYONE … just think about it for a few minutes Frank

Who will approve submissions? HE WILL, so do not expect any amendments HE does not like..