Peter Williams QC on Fiji

Peter Wiliams QC is a highly respected NZ lawyer who has on several previous occasions defended members of he ousted Qarase government.  He was in Fiji recently on Mere Samisoni's behalf.  

In this interview with Radio ZB he comments on the recently passed Public Order Amendment Decree. Listen to 

http://www.newstalkzb.co.nz/Auckland/player/ondemand/249275994-Military-given-more-power-in-Fiji

 what he has to say.

My only comments concern his description of the decree as draconian and worse than PER.  If fact,  the provisions he criticises were in PER so the situation may be as bad, but certainly no worse. And as a reader commented on an earlier post, many such provisions exist in other countries (and most were in Fiji's 1969 Public Oder Act). It is not what is in the decree (which caters for worst case terrorist scenarios) but how it is interpreted and applied. And for that, we have to wait and see.  He mislead listeners by saying more than three church members cannot meet without a permit.  The decree has no effect on church services. It is the meeting of

church administrators that requires a permit.  This is no different than  under PER and it came about because some Methodist church leaders (extreme nationalists who had supported the Rabuka and Speight coups) were using the church as a political instrument. Bainimarama's  point is that the church should not engage in party politics.  

His description of poverty and begging in Suva, as if they are a consequence of Bainimarama government actions, is also misleading. It is probable that poverty has worsened in recent years but it was extensive in the 1970s when I researched urban squatting.

His suggestion that Fiji is an unsafe destination for tourists was also a little guileless. Walking around many places at night is dangerous.I wouldn't recommend it in any downtown NZ city.

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Amended Act 'big Leap' from PER, Says Union

Frederica Elbourne in the Fiji Times
Wednesday, January 11, 2012

THE amended Public Order Act, although amended and perceived as more restrictive than it was, is still a big leap from the Public Emergency Regulations in the positive direction, the Fiji Teachers Union said yesterday following a meeting between the police and union heads.

Union representative Agni Deo Singh said he was hopeful freedom of expression and freedom of association would be fully restored in the face of progress.
Chief operations officer ACP Police Henry Brown confirmed the meeting with members of some 20 unions in Suva. He said the gathering was to discuss processes and procedures of conducting union meetings as governed under the Public Order Act.
He said part of the meeting involved discussions on the shift in authority wherein the Police Commissioner and his divisional commanders have full powers to issue permits and stop union meetings.
Those who attended the meeting which Mr Brown led, included representatives of the Fiji Taxi Union, the Fiji Teachers Union, the Fiji Bank Employees Union, the Fiji Bus Operators Union and the Fiji Nursing Union.
The Suva City Council Staff Association representative and Fiji Taxi Union general secretary Rishi Ram hailed the meeting and said it was a relief to now hold meetings without the need for a permit.
Mr Ram said the only time a permit would be warranted was during annual general meetings or meetings in places, particularly other towns, that did not serve as the union's fixed address.
"There can be no political meetings and if I am to go to Labasa or Lautoka or elsewhere to meet with my union members, I will need a permit," he said.
"And I'm glad they've clarified the matter. Now we know so there really isn't any excuse."

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An Analysis of the Public Order Act ...and the Lifting of PER

Former Justice Nazhat Shameem provides an objective analysis of legal provisions that are now in place following the lifting of the Public Emergency Regulations. It is a lengthy article. Impatient readers may care to scroll down to the last few pages for a summary before reading the article in full. But do read it in full!

An Analysis of the Public Order Act, the Public Order (Amendment) Decree, the Criminal Procedure Decree, the Crimes Decree and the Media Industry Development Decree in relation to media rights, assembly and meeting rights and offences.

Nazhat Shameem

The Public Order Act Cap 20 (Act No. 19 of 1976, and Ordinance 15 of 1969)

Under this Act, which has been in place since 1969, an assembly is a gathering of three or more persons assembled for a common purpose. A meeting is defined as an “assembly held for the purpose of discussion on matters of public interest or for the purpose of the expression of views on such matters”. By definition, a “meeting” is not a school or religious gathering therefore. Nor is it a dinner party, or an afternoon tea at a friend’s house. A “public place” is defined as “ (a) any highway, public street, public road, public park, or garden, any sea beach, river, public bridge, wharf, jetty, lane, footway, square, court, alley, or passage whether a thoroughfare or not.... or (b) land or open space......place or building of public resort....to which for the time being the public have access whether on payment or otherwise.”¹

The Public Order Act also prohibited the wearing of particular uniforms, the drilling of persons for the purpose of enabling them to use physical force (for instance the training of rebel or alternative militia groups)² and taking an unlawful oath to commit capital offences. This last was the subject of the prosecution of Ratu Jope Seniloli and Others after the 2000 George Speight coup.

Meetings were and are dealt with under section 8 of the Act. Any person who wishes to organise a meeting or procession in a public place shall first apply for a permit from the appropriate authority. Under the Public order Act before the amendments, the appropriate authority was the District Officer. The District Officer had to issue a permit unless “satisfied for good reason that such a meeting or procession is likely to prejudice the maintenance of peace or good order”. Any permit granted had to specify the routes the procession could take, or the purpose for which, the place at which, and the times of the proposed meeting. The permit also had to be issued in the name or names of a person or persons, who had applied for it.³ Applications for permits had to be made at least 7 days in advance. Marriage ceremonies, funerals, sports, social events, private entertainment, religious gatherings, or charitable events carried out with the permission of the local authority where the event was to take place, were exempt from the requirement of applying for a permit.⁴

Section 9 of the Act gave the Minister powers to prohibit all meetings and processions whether in public or private places “in the interests of public safety and the maintenance of public order” or to prohibit the holding of meetings and processions in any area generally or subject to conditions.

Section 10 of the Public Order Act allowed the police to stop any meeting or procession if there was the contravention of any written law, and to order the meeting or procession to disperse. Any person taking part in a meeting without a permit, or in contravention of any condition of the permit, or in breach of any order given by a police officer to stop the meeting and to disperse committed an offence under section 11, and section 13, for which the maximum penalty was 6 months imprisonment or a fine not exceeding $200 or both. The organisers of an illegal meeting or procession were guilty of an offence under section 13 (2) and the maximum fine was 1 years imprisonment and/or $400 fine.

Other offences created by the 1969 Act were; Disturbance in a public place ( 3 months imprisonment and/or $100 fine); Malicious acts defined as “maliciously fabricating or knowingly spreading abroad or publishing, whether by writing or word of mouth, any false news or false report tending to create or foster public alarm, public anxiety or disaffection or to result in the detriment of the public or..... Acting in a manner prejudicial to the public safety or to the peace and good order in any part of Fiji..... Or endeavour[ing] to disturb the public peace by inciting hatred or contempt of any class of person...”⁵; and incitement to violence and disobedience of the law.⁶ This last offence was committed when a person without lawful excuse (the burden of proof being on him/her on this issue) utters, spreads or publishes any words or does any act or thing which is calculated to bring death or physical injury to any person or to any class, community or body of persons, or to lead to the damage or destruction of any property, or to prevent the execution of any written law by violence or any other unlawful means. The maximum sentence was 2 years imprisonment and/or a fine of $1000. This offence was probably the closest offence to terrorism that existed in Fiji’s statutes prior to the Public Order Amendment Decree.

Section 17 of the Public Order Act⁷ said that any person, who by words, spoken or written and intended to be heard or read, spread any report or made any statement which was likely to incite racial hatred of any race or community, or to promote feelings of enmity or ill-will between different races or communities, or to prejudice the public peace, or makes intimidating or threatening statements in relation to a community which is likely to spread fear, alarm or insecurity amongst members of that community, or spreads a report or makes a statement which incites people to violence, or counsels people to disobey the law or any lawful order given by the police, prison officers, or members of the armed forces, commits an offence.⁸

Section 17 (2) stated that where the newspapers or the FBC merely reported accurately and fairly, a statement likely to prejudice the public peace, an offence was not committed by the relevant media agencies. Persons in possession of statements or documents containing speeches in contravention of section 17 committed an offence unless they had no intention of spreading or circulating the report. The police had a power of arrest without a warrant for any offence under the Public Order Act, and section 20 allowed the Minister to pass Regulations under the Act.

The Schedule to the Act contained a permit for a public meeting/procession, and an application form for a permit.

These provisions have been a part of Fiji law since 1969, and for some provisions, since 1976. In summary, under the Act, a permit was always required for a meeting unless the meeting was specifically exempt. A gathering in a house to celebrate Christmas was not a “meeting” under the Act. Nor was a gathering at the temple church or mosque. Hate speeches were an offence. ‘Terrorist’ acts were offences, although acts and speeches had to be “calculated” to bring about death, destruction, damage, or to prevent the execution of any law.

The Public Order (Amendment) Decree

The new definitions included in the Act after the amendment, include that of “explosive” and “offence against public order”. The latter lists the following as offences to which the Act generally applies;

1. Terrorism
2. Treason
3. Urging political or inter-group force or violence
4. Sedition
5. Urging a person to assist the enemy
6. Urging a person to assist those engaged in armed hostilities
7. Inciting to mutiny
8. Aiding soldiers or police in act of mutiny
9. Inducing desertion from the police force or armed forces
10. Aiding prisoners of war to escape
11. Genocide
12. Crimes against humanity (by murder, extermination, enslavement, forcible transfer of population, torture, rape, sexual slavery, forced pregnancy, enforced prostitution, enforced sterilisation, persecution, apartheid, inhumane acts and sexual violence)
13. Slavery
14. Sexual servitude
15. Deceptive recruitment
16. Human Trafficking
17. People smuggling
18. Document Offences in relation to people trafficking
19. Foreign enlistment
20. Piracy

Terrorism is specifically defined and covers in particular, any act involving death, serious bodily injury, danger to a person’s life, a serious risk to the health or safety of the public or a part of the public, the use of weapons, the introducing into the environment harmful or dangerous substances including toxic chemicals, and any act which involves serious disruption to any critical infrastructure or to the provision of services to communications, banking or financial services. It covers acts intended to or by its nature or context reasonably be regarded as being intended to, intimidate the public, or to compel a government to do something or to refrain to do something. Internet based attacks including acts of large-scale disruption of computer networks for the primary purpose of creating alarm and panic are included in the definition of terrorism. Any of these acts must have been done or the threat made with the intention of advancing a political, religious, or ideological cause, and must have been done with the intention of coercing or influencing by intimidation the Fiji Government or intimidating the public or a section of it.

The word “appropriate authority” is amended to now mean the Divisional Police Commander. Previously the person issuing the permits was the District Officer.

The definitions of “meeting” and “procession” have remained unchanged. Therefore any meeting held to discuss matters “of public interest”, and any assembly of three or more persons assembled for a common purpose, continue to require permits, as has been the case since 1969.

However the words “racial vilification” are defined as including “conduct that offend, insult, humiliate, intimidate, incite hatred against, serious contempt for, or revulsion or severe ridicule of another person or group of people on the grounds of their race, colour, national or ethnic origin.”

The words “religious vilification” has a similar meaning.

Section 3 of the Act is amended by increasing the penalty for wearing uniforms, or distinctive dress or bearing a flag, and by empowering the minister to order that the manufacture and sale of flags, emblems and dress be prohibited.

The Act is also amended by inserting sections 7A, 7B, 7C, 7D, 7E and 7F after section 7.All these sections are to do with the possession of arms and ammunition without a licence, and with the powers of the Police Commissioner to prohibit the buying, selling and dealing in arms and ammunition in any part of Fiji. Section 7B creates the offence of being in possession of arms without a license or ammunition without lawful authority. The maximum penalty is 3 years imprisonment, and/or $5000 fine. There is a statutory obligation to report a suspected offence of carrying arms or ammunition without a licence or lawful authority⁹ and the burden of proving that the defendant had no opportunity to report to the police, is on the defence¹⁰.

Sections 4, 5, 6 and 7 of the Public Order Act have remained untouched.

Section 8 (the section on the holding of meetings and processions) remains untouched, except that subsection (5) has been repealed. That was the subsection which exempted sporting, recreational, social events, private entertainment, and religious and charitable gatherings from the need to apply for permits. This means that the holding of all such functions now require permits. However if a group of people gather for purposes other than a common purpose, or gather to discuss issues which are not public interest issues, the gathering is not a “meeting” or an “assembly” for the purposes of the Act. This definition has remained unchanged since 1969.

Section 8(5) now reads;

“ The appropriate authority may, in its discretion, refuse to grant a permit under this section to any person or organisation that has on any previous occasion been refused a permit by virtue of any written law, or to any person or organisation that has on any previous occasion failed to comply with any conditions imposed with respect to any meeting or procession or assembly, or any person or organisation which has on any previous occasion organised any meeting or procession or assembly which has prejudiced peace, public safety and good order and/or which has engaged in racial or religious vilification or undermined or sabotaged or attempted to undermine or sabotage the economy or financial integrity of Fiji.”

In other words, if an organisation has previously acted in breach of a section 8 permit, or has been refused a permit, or which has previously organised a meeting which has prejudiced public safety and order, or has made hate speeches or has tried to damage Fiji’s economy, a permit can be refused.

Sections 9, 10 and 11 of the Public Order Act are deleted.¹¹ Under those sections the Minister could prohibit the holding of meetings¹². Under those sections the police also had the power to stop and disperse meetings for which no permit had been granted¹³. In their place, under section 9, the Commissioner of Police or Divisional Police Commander has powers to prohibit and disperse a meeting or assembly or procession even if a permit has been granted. The Commissioner may make such orders as he considers necessary for the securing of public safety or for the maintenance of public order or for maintaining supplies and services to the community, and may exercise these powers if the organisation or person organising or participating in the gathering has previously breached the conditions of the permit or has engaged in hate speeches, or has tried to sabotage Fiji’s economy.

What powers do the police have under this section?

1. To prohibit a meeting, procession or assembly¹⁴.
2. To direct any meeting assembly or procession to disperse¹⁵.
3. After due warning, a police officer may use any force he/she deems necessary including the use of arms to disperse the meeting, procession or assembly, and to apprehend any person present.¹⁶ In such a case the police officer is immune from civil or criminal suit.

These provisions are similar to regulation 3 of the repealed Public Emergency Regulations although there is no longer a power to attend meetings on reasonable suspicion that there will be a breach of the peace¹⁷. The power to use whatever force is necessary to disperse a riot was previously given to the police under section 90 of the Penal Code. Immunity from civil and criminal suit was also provided under section 90 of the Penal Code. Thus these are old powers.

The new section 10 creates offences of taking part in a meeting held without a permit or in breach of the conditions of a permit. The maximum penalties are 5 years imprisonment and/or a fine of $10,000. A person who organises a meeting in breach of the Act is liable to the same penalty.

The new section 11 of the Act gives the Commissioner of Police or the person in charge of the police district powers to close roads or to regulate the use of public places in order to secure public safety or to maintain public order. In an emergency a police officer above the rank of inspector can exercise these powers but for only 24 hours or until the order is endorsed by the Commissioner or the officer in charge of the police district¹⁸. Section 11A, is comparable to section to section 5 of the Public Emergency Regulations, except that one of the grounds on which the Commissioner can act under the Public Order Act is “for ensuring that the economic and financial integrity of Fiji is not undermined or sabotaged”.

The Decree also adds a new Part 3A to the Public Order Act. Section 12A provides that the penalty for an act of terrorism is a maximum of life imprisonment. Section 12B creates an offence of harbouring a person who has committed an act of terrorism. Section 12C creates an offence of knowingly providing or offering to provide a weapon to a group or organisation involved in terrorism. Participating in terrorist groups is an offence under section 12D and recruiting into terrorist groups is an offence under section 12E.

Sections 14, 15, and 16 are left untouched in the Public Order Act except for an increase in the penalties for the offences. Section 17, which is the “hate speech” offence, is amended by adding two further categories of result which is likely to be caused by the report or statement. One is “incite or promote religious, ethnic, or communal hatred or dislike” and the other is “undermine or sabotage or attempt to undermine or sabotage the economy or financial integrity of Fiji’. Further after the word “race” the words “religion, ethnicity, or community” are added wherever “race” appears in the section. Subsection (2) which permitted newspapers to report hate speeches is deleted. The offence is given extra-geographical jurisdiction by the insertion of a new subsection (5). This means that hate speeches made overseas by Fiji citizens and residents can be tried in Fiji by the Fiji courts. The new sentence for hate speeches is now a maximum of 5 years imprisonment and/or $10,000 fine

A new section 17A gives powers of arrest for police officers in relation to public order offences or offences under the Act. These offences include terrorism, racial vilification and trafficking in persons. Where a police officer has reasonable suspicion that a person has acted or is about to act in a manner prejudicial to public safety or the preservation of peace, or is about to commit a public order offence, or on being questioned by the police a person has fails to satisfy the officer as to name or address, or purpose for being in the place where he or she is found, the officer may arrest the person without a warrant. The police may also detain the person for investigations for up to 48 hours. Thereafter the person can be detained for 14 days but only on the authority of the Minister, who must be satisfied that the enquiries cannot be completed within 48 hours. After 48 hours or up to a further 14 days the person must either be released or brought to court.

The Criminal Procedure Decree gives the police powers to detain for enquiries for up to 24 hours, for offences other than murder or treason, and to grant bail after the expiry of 24 hours unless the case is of a serious nature. If the case is serious, then the suspect can be kept in custody and produced in court “as soon as practicable”.¹⁹

The Public Emergency Regulations allowed the police to detain persons in custody while acting under those Regulations for up to 7 days after the initial 24 hours, with the authority of a magistrate or police officer²⁰.

Section 17B permits any police officer to use whatever force is necessary to arrest a person suspected of having committed a public order offence. This provision is similar to section 90 of the repealed Penal Code in relation to powers of arrest for riot and unlawful assembly. It is an offence to obstruct officers under the Act²¹. Section 17C provides that a member of the armed forces, when directed by his/her commanding officer, at the request of or with the concurrence of the Commissioner of Police, to exercise any of the duties or functions of the police or prisons officers.

A new Section 21 is inserted in the Act. It reads that no court, tribunal, commission or other adjudicating authority may hear a challenge to the validity, legality or propriety of any decision made under the Public Order Act by the Commissioner of Police, Divisional Police Commander or Minister or any public official. Where any such claim is brought, the file will be taken to the Chief Registrar for termination of the proceedings.

That is a summary of the provisions of the Public Order Act after the amendments.

The Public Order offences²²

Are the public order offences, to which the Act now applies new offences? If they are old offences which previously existed under the Penal Code, have they been modified either in the Crimes Decree, or in the Public Order Act itself?

Treason – Under the Penal Code there were several treason offences, defined under sections 50,51, 52, 53 and 54. Treason itself was simply defined as any act which in England would be termed treason. The term was defined in State v. Timoci Silatolu and Josefa Nata [2006] AAU0024/03S .Section 51 of the Penal Code stated that any person who instigated any foreigner to invade Fiji with an armed force was guilty of treason. Section 52 created the offence of misprision of treason²³ and section 53 of the Penal Code created the offences of “treasonable felonies”. Any person who formed an intention to depose the State or to levy war against it or instigated an armed invasion of the state by foreigners committed treasonable felonies.

The Crimes Decree definitions of treason and related offences are more specific. Levying war against the State is still treason²⁴, but so is instigating invasion, killing the President or the Prime Minister or engaging in conduct that materially assists another country which is engaged in armed hostilities against Fiji. There is a special offence under section 65(1) of intentionally urging another person to overthrow by force or by violence the Constitution of Fiji, or the Government of Fiji, or the lawful authority of the Government of Fiji. These were not specific offences under the Penal Code, although they could be alleged as overt acts to the offence of treason. Spreading racial or communal hatred or antagonism is a new offence under section 65 (2). However although a new offence, it is very similar to the offence in the Public Order Act of inciting racial antagonism²⁵which is retained and extended after amendment.

Sedition – now under sections 66 and 67 of the Crimes Decree, the offences of sedition are identical to the old Penal Code definition of sedition under sections 65 and 66. However, Sections 67 and 68 of the Penal Code which allowed the court to suspend the operation of a newspaper found to contain seditious material and to prohibit the circulation of seditious reports are not included in the Crimes Decree. Important safeguards to freedom of speech are set out in the proviso to section 66 of the Crimes Decree²⁶.

Terrorism – Is made an offence for the first time, although the Financial Transactions Reporting Act 2003 made the financing of terrorist activity unlawful and defined terrorism in similar terms to the Public Order Amendment Decree.

Human Trafficking and People Smuggling– Offences created in accordance with the definition of trafficking in the United Nations Trafficking in Persons Protocol were incorporated into our laws for the first time in 2009 when the Crimes Decree was passed. The offences are based on the prohibition on the transportation of people in and out of Fiji, or within Fiji, for the purpose of exploitation, or by deceit.

Genocide, crimes against humanity, slavery, sexual servitude and apartheid are all offences from the Rome Statute of the International Criminal Court. Fiji was required by her obligations under the Rome Statute to pass laws identical to the Rome Statute laws for international crimes.

Hate speeches and incitement to violence – These are all old offences created by the 1976 edition of the Public Order Act itself. There is a new offence under section 65 (2) of inciting communal antagonism which falls within the ambit of “public order offence” for the purposes of the Public Order Act.

The Media

The provisions in the Public Emergency Regulations permitted the Permanent Secretary to check on stories before publication. The Permanent Secretary no longer has these powers now that the Public Emergency Regulations have been lifted. However the Minister for Information has similar powers under section 80 of the Media Industry Development Decree.

Complaints against the media can be made under section 54 of the Decree, and non-compliance with the code of ethics in the 1^st Schedule is one of the possible grounds for complaint. A complaint may be dismissed summarily or referred to the Media Tribunal for adjudication.

What advice should be given under the Act since it was amended and the Public Emergency Regulations were lifted?

1. When organising a meeting of three or more persons, you should apply for a permit from the police. This law has remained unchanged since 1969.
2. When a permit is granted you must adhere to its conditions because failure to do so may lead to a refusal of a permit when you next apply.
3. The Media is now regulated by the Media Industry Development Decree. Media agencies should be aware of its provisions, and of the powers of the Media Industry Development Authority, The media will be judged ultimately by adherence to the Media Code of Conduct, in the Media Industry Development Decree.
4. In making statements in public you must not incite racial antagonism. You must not make a report or make a statement that is likely to promote feelings of enmity amongst the different communities, religious groups, or classes of the community. You must not become involved in terrorist activity. You must not cause any harm to others, nor must you make threats of harm to others.
5. You must not make hate speeches or speeches in contravention of section 17 of the Public Order Act even when you are travelling abroad.
6. In seeking to promote changes to our laws and constitution, you must not urge the use of force or violence.
7. In seeking to make changes to the law you must not cause discontent or disaffection amongst the people of Fiji unless you are pointing out factors which cause any such discontent.
8. When asked for your name and address by the police you must not give a false name and address. When asked you should explain what you are doing in the place where you are being questioned.
9. When in doubt about the effect of the law on your conduct or proposed conduct, consult a lawyer.

Nazhat Shameem

10^th January 2012

1 Section 2 Public Order Act

2 Section 4 Public Order Act

3 Section 8 (1) (a) (b) and (c)

4 Section 8 (5)

5 Section 15 (a) (b) and (c)

6 Section 16

7 Inserted in 1976 by Act No. 19 of 1976

8 Maximum sentence – 1 years imprisonment and/or $500 fine

9 Section 7F

10 Section 7F(2)

11 These were the sections which empowered the Minister to prohibit assemblies and meetings, empowered the police to stop and disperse meetings and processions, and created a “deeming” provision that a meeting in breach of a permit was deemed to be an unlawful assembly.

12 Section 9 (1) (a) and (b)

13 Section 10 (1) and (2)

14 Section 9 (1) (a)

15 Section 9 (1) (b)

16 Section 9 (3)

17 Formerly Regulation 3(5) of the PER

18 Section 11(2)

19 Section 24 (1) (2) and (4) of the Criminal Procedure Decree 2009

20 Regulation 18 of the PER

21 Section 17D

22 As defined in the Public Order Act (Amendment) Decree 2012

23 Defined in State v. Viliame Savu [2002]HAC 010/02S

24 Section 64(1)(d) Crimes Decree

25 Section 17

26 See also DPP v. Afasio Mua and Others (1992) 38 FLR 226

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The Lord Giveth and the Lord Taketh Away?....

From a reader:

A brief comment on the lifting of PER and the Amendment to the Public Order Act.

I was hoping that the lifting of the PER would mean that universities in Fiji could carry out their proper functions without further restrictions.  However, my understanding is that if we hold lectures that are advertised to the public, under the new regulations we shall still have to obtain a police permit, but this time only from the local community police post. 

Does any reader know whether this is the case?

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News and Comments Monday 9 January 2012

9.1.12 
WHAT DOES IT TAKE TO MAKE AN"EXPERT"?. Former Brigadier Andrew Nikolic, Liberal candidate for Bass, Launceston, Tasmania, an expert on Iraq and Afghanistan, who to my knowledge has no special knowledge on Fiji and has never visited the Republic, says the lifting of PER is "a meaningless gesture, as is the promise of meaningful constitutional consultations."  He states that the "return to democracy will "require a coalescence of opposition voices in Fiji - the church and people like Laisenia Qarase and Mahendra Chaudry. In the meantime, Australia should stop giving Bainimarama's illegal regime any recognition or praise for these small steps." Good gracious! Advance, please. Australia fair

FEMLINK'S SHARON BHAGWAN ROLLS  says it’s crucial that women be able to participate in the consultation process. “Our concern is that you can have a process at the national level but unless communities at the grassroots level, and we’re talking about rural women who live 20-30 kilometres away from a main centre, their local town. How do they get involved?”She hopes the interim government will take into account that it’s not just about inviting people and presenting them with a draft document.

MIKE BEDDOES. The former parliamentary Opposition leader  says that "by lifting the PER and with it the media censorship, the PM is creating the positive environment necessary in which these [constitutional] talks can proceed with a fair amount of confidence and sincerity."

NGO NETWORK URGES UNDER-PRIVILEGED PROTECTED IN CONSTITUTION. Fiji largest Child Protection Network is urging Government for nationwide consultation on the drafting of Fiji’s new Constitution that includes unprivileged citizens. Protecting Our Children In Fiji, Coordinator Karishma Kumar said their Network requests Government to ensure that the Constitution Review Committee visits areas that include squatter/informal settlements, remote parts of Fiji, rural areas, orphanage homes and homes for the unprivileged citizens. She added the new constitution can help to alleviate poverty which is multidimensional and create a just, decent and humane society for all in Fiji.

BUSINESSMAN Charan Jeath Singh has won a court declaration that he and one of his companies did not in any way support the 2000 George Speight coup. 

AIR PACIFIC POSTS LOSS BUT LESS THAN LAST YEAR. Air Pacific reported an operating loss of $3.6M for the financial year ending March 2011 which is a significant reduction in losses compared to the operating loss of 91.8 million dollars for the previous year. It has been quite challenging according to the Managing Director and CEO of Air Pacific, Dave Pflieger but he said it has also been exciting and action packed so far. He said the main issue was cutting costs and getting ready for competition.

CASSINO BENEFITS, Fiji's first casino is expected to create 800 new jobs and be another stimulant to the tourism industry. The project will include a $290 million, 5-star luxury casino resort on Denarau Island. The first phase will include 190 luxury rooms and suites, three restaurants, and a sports grill, with the second phase to include more accommodation, a nightclub, and other entertainment venues. There will be 500 slot machines and 54 table games at the casino, while the 1500-seat convention centre will feature fully equipped banquet and catering capabilities.

NEW JETTY FOR RABI.The construction of the new $3m Rabi Island jetty  is part of the government's plan to help Rabi and neighbouring islands.  The jetty and causeway is scheduled to be completed by April. Rabi islanders have a special place in Fiji's history. They are from the formerly rich phosphate island of Banaba that is now part of Kiribati. Royalties from phosphate helped the Banabans set up businesses in the main island but mismanagement and internal discord saw most businesses and investments fail. Rabi Island, located on the S.E. coast of Vanua Levu. is largely self-governing.

Scroll down to check out the weekend reading.

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Lockington's Everyday Fiji ... Life Goes On

Readers are urged to read the comments on yesterday's address by the PM on the lifting of PER, and add comments of their own.

__________________________________________________

Allen Lockington is a self-employed customs agent and business consultant who has regular articles published in Fiji. I thank Allen for permission to reprint some of them in this political blog. They remind us that life goes on, whatever the political situation. And it's good to know that.

Resolutions

New Years public holiday dawns and the weather in Waiyavi is fine. It is hot though and humid, but fine. Last night the sounds of drums and cans being banged and singing permeated the air till the wee hours of the morning.

Monday January the 2^nd dawns and all is quite. Lots of people will be sleeping in, hung over, over eaten, bloated, felling sick. Some will be satisfied, some will comfortable and some will be wondering where they are. Some will be on the road to recovery, detoxing and vowing never to consume alcohol again. Lots of retching will be down and the sound of, “Oh God, if you take away this bad feeling I vow never to drink again.”

Some people will already be on to their New Years resolution and looking forward to losing weight, getting fit, stop smoking and many others.

In about 365 days we will be doing it all over again. Or should that be in a weeks time when we have recovered and are feeling good enough to down a few more bottles of beer.

But to all who have made resolutions the best way to stick to it is to tell everyone what your resolutions are. That way they will be on your back all the time when you are seen smoking, or eating too much again.

New Year Bash

Someone commented on the $150,000 that has been provided by sponsors to host the New Years Street party in Suva. He said that the money could be put aside to be used for education, the poor, upgrading our roads or other things.

I said, “I hope I’m not going to offend you, but do you know that all that is already being done by the phone companies, Rotary Club, the banks, NGOs, government agencies, Friends of Fiji, the private sector, the churches in Fiji and those from abroad and many individuals who choose to remain anonymous. Why don’t we celebrate the coming of the new year by getting together to dance the night away, have fun, meet people and, yes, just have fun.”

Thank you to Vodafone, and Total Event Company you have been a wonderful event in the lives of the people of Suva. We in Lautoka will be doing our street party also with all the wonderful bands and personalities.

And yes, we can’t be collecting money all year round for the needy, there has to come a time for us to also come together to celebrate and give thanks. It’s a way to say thank you to all the people who have been making an effort to make our lives in Fiji a better one. Let’s put aside our struggles and differences and say hello to the New Year. And an interesting feature is that "Radio Australia will feature the street party in its Pacific Beat Program."

Happy New year everyone.

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Brij Lal Cautiously Welcomes Lifting of PER

FIJI ACADEMIC CAUTIOUSLY WELCOMES DECREE LIFTING
Brij Lal: lift a positive step, other decrees remain in effect

MELBOURNE, Australia (Radio Australia, Jan. 2, 2012) - An avid Fiji watcher is the Professor of Pacific and Asian History at the Australian National University, Brij Lal. He was the co-writer of the Fiji Constitution scrapped in 2009.
Presenter: Brian Abbott
Speaker: Brij Lal, Professor of Pacific and Asian History, Australian National University
LAL: Well essentially there was one Public Emergency Regulation that severely curtailed freedom of speech, freedom of association, gave enormous powers to the security forces to apprehend people and to hold them for lengths of time without trial and so on. And this is what's being lifted on the 7th of January. I think that on the face of it this is a very welcome development because any development that even hints at or nods at slightly more free press, freedom of speech and so on is to be welcomed, because over the last three years Fiji has been a terrible place for free speech. And so I think from that point of view if this is carried out in the spirit that people hope it will be, I think this is a positive development. Positive too because as the Commodore has said he's going to start a nationwide consultation process to draft a new constitution, and for that process to have any legitimacy in the eyes of the people in the country and in the region and internationally, the citizens must be free and able to express their views openly. And I think it's important also to bear in mind that the military's firmly in control. They have placed their men and women in strategic positions in the civil service and civilian administration, and they feel that they have the country under control and they don't need a piece of legislation, regulation that is not only unnecessary, but also counterproductive.

ABBOTT: But aren't the Emergency Regulations in this PER in Fiji covered by decrees that the government has issued anyway, so basically the announcement of this being scrapped is just window dressing?

LAL: Well this is the conundrum isn't it? I mean they will for example at the moment under the Public Emergency Regulations any meeting of more than three people requires a permit from the powers that be. These sorts of things will be lifted, but on the other hand you have a whole slew of decrees; one decree after another issued since the coup in December 2006, which infringe on all kinds of rights, for example of trade unions and so on and so forth. So I think that one just has to wait and see what the effect of what is being promised will be.

ABBOTT: What of his claim that public order is most important and we have to protect the vulnerable and safeguard the economy of Fiji? He calls those issues paramount, doesn't this mean that they're watching very closely and they'd be ready to step in again if things got out of hand?

LAL: Absolutely, I think this is what people have to realize. They shouldn't really start jumping up and down in the hope that things will change overnight. The last three years have been very, very traumatic for Fiji, there has been cultural silence, self-censorship, a climate of fear and intimidation, and the military will not relinquish power unless it is absolutely convinced that it has the country in complete control. Anyway he talks about law and order and he says that certain aspects of the new constitution will not be negotiable. One simply wonders what aspects those might be, and in any future order what role will the military have in the governance of the country? So I think yes he's confident that he has the country under complete control, there is no overt resistance in the country, people are skeptical, tired, exhausted, and so we'll just have to wait and see what is given when the regulations are abolished or lifted on the 7th of January.

ABBOTT: From his track record is Commodore Bainimarama a man of his word? Can he be trusted?

LAL: Well we all know what the record is. A number of times undertakings were given not only to the people of Fiji, but to the international community as well. But I think that in this particular instance probably the regime in Fiji ought to be given the benefit of the doubt because they really have too much to lose and nothing to gain if they renege on yet another commitment. I don't think they will because too many promises have been broken in the past and I think that now with what has happened in the country over the last three years particularly, but since 2006 more generally, I think that he realizes that what is happening in the country is not good, the economy is down, people are losing confidence in the promises the government made about creating a corruption free society and so on. And I think it's out of self interest more than anything else that they're trying to reengage with the community at large by lifting the Public Emergency Regulations.

ABBOTT: What about his promise of consultations ahead of the forming of the constitution? We know very little about it but what little we know are you satisfied that it will be a fair process in drawing up the constitution?

LAL: But you see that's right, in the past in 2009 there was a president's dialogue forum which was very quickly aborted, and so we don't know precisely what the nature of this consultation might be, whether political parties will be free to make submissions and participate in the process. He has said that the consultation process will go beyond the traditional stakeholders, the political parties and so on, he wants to bring in NGOs and so on and so forth. All that sounds good on paper, but we'll just to wait and see what the nature of this is, how transparent, how accountable, how free and whether politicians from before 2006 for example will be allowed to stand for elections and so on. In the past he has said those tainted with what he calls "corrupt practices" will not be allowed to participate. So I think one has to be cautiously optimistic, to use that cliche, but not ecstatic about the prospect just yet.

Radio Australia: www.abc.net.au/ra

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FLP Cautiouisly Welcomes PER Lift and Commonwealth Statement

 Cautious welcome to lifting of PER

The Fiji Labour Party cautiously welcomes the decision to lift the PER later this week to allow for political consultations on the new constitution.



As an obnoxious and repressive set of measures, the Public Emergency Regulations should never have happened.

However, the Party believes that simply lifting the PER is not enough. To be fully effective, it should be accompanied by the following:

• the restoration of full media freedom

• restoration of the Judiciary’s independence and the restrictions on its jurisprudence lifted

• Government accounts together with Auditor General’s reports must be published

• There must be absolute accountability and transparency in the affairs of the nation

• Ministerial salaries must be made public

• All abuses under the PER must be investigated and those found guilty, punished


Ed. Note: "Full" media freedom yes but only with a responsibility that was frequently lacking in the past. Indeed, trial by media (Fiji Times)  was a major factor that toppled the FLP-led government in 2000. How is the  judiciary not independent? Judges on more than one occasion have refused to be pressured by Government.  Accountability, transparency yes, starting by asking  Mahendra Chaudhry to explain how Indian donations finished up in his personal Australian bank account.

 Labour welcomes Commonwealth statement on PER

FLP welcomes the Commonwealth statement on the lifting of the PER and its offer to assist Fiji return to democratically elected government without further delay. 

In a statement issued 2 January 2012, Commonwealth Secretary-General Kamalesh Sharma, welcomed the announcement by the Fiji authorities to lift emergency laws in Fiji and to begin national consultations on a new constitution by February. 

Describing it as “a positive step that was long overdue”, Mr Sharma said the CMAG – the custodian of Commonwealth values and principles – had repeatedly urged the authorities in Fiji to lift the PER and respect the human rights of all its people. 

He hoped that the national consultations expected to begin in February 2012 “will be fully inclusive and time bound and that they will lead to a genuine national consensus on the constitution, clearing the way for credible elections and the return of a democratically elected government without further delay”. 

 

“The Commonwealth remains ready to engage as a partner and to extend assistance as appropriate towards these ends,” he said. 

Ed. Note: "Without further delay"?   Elections will be held in 2014 following constitutional (2012) and electoral (2013) reforms.  The Commnwealth and the FLP should accept this timetable.  Democracy is not justg about holding elections, and much work remains to be done before 2014.

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PM Addresses the Nation on PER Lift

Friday  6th January, 2012 No:13/MOI) ADDRESS ON THE REMOVAL OF PUBLIC EMERGENCY REGULATIONS BY FIJIAN PRIME MINISTER COMMODORE VOREQE BAINIMARAMA

Ladies and gentlemen: As I announced in my New Year’s address, the Public Emergency Regulations will be lifted from tomorrow. 

This marks an important step toward the public consultations for the formation of a new constitution under which truly democratic elections can be held. I shall give  further details in due course of the shape and form of the consultations which will commence in February.

No modern state wishes anarchy upon itself. The acts of terrorism, racial riots, religious and ethnic vilification and other disturbances have given rise to legal safeguards in even the metropolitan countries such as Australia, the United States, the United Kingdom, Singapore, and India—to name a few.   

In Fiji, we too have experienced terrorism such as the events of 2000, during which government members were held captive by terrorists for close to two months. They held the country to ransom while being aided and abetted by political elites, religious groupings and self interested individuals. Suva and other centres including Muaniweni was systematically ransacked, looted and terrorised.

We must never allow this to happen again. Nor must we allow those who will create such a situation to act with impunity.

Many countries have placed limitations on rights where warranted and deemed necessary to safeguard society, to ensure stability and indeed to ensure continued liberties. 

For example, in UK, a person can be detained on the grounds of suspicion of terrorism for 14 days and the period of detention can be extended with the consent of the court. In Singapore, a person can be detained  for up to 2 years without trial if national security is concerned. In Australia, a person's movement can be restricted for preventative measures or tracking devices can be installed on the person to monitor his or her movements. In USA, the President and Attorney General can authorise the detention of  persons for undefined periods for suspicion of terrorism. 

In Australia and other countries, racial and religious vilification in public gatherings and even on the internet has been criminalised. 

We in Fiji have not had such safeguards in law and enforceable in a transparent manner. However, now the Public Order Act, which has been in force in Fiji since independence, has been modernised through the Public Order (Amendment) Decree 2012. This modernization is necessary to effectively address terrorism, offenses against public order and safety, racial and religious vilification, hate speech, and economic sabotage. 

We in Fiji will not go to such extreme as some of the countries I have mentioned. For example, for any breach of the offences under the Public Order Act, a person can only be detained for a maximum of 48 hours and if need be for a further 14 days but only if the Commissioner of Police deems it necessary and with the consent of the Minister. No person can be detained for more than 14 days without being brought before the court. In Fiji, we will also not allow tracking devices being installed on individuals. 

Over the past few years, my Government has brought about a number of structural and institutional changes to break from the past and to position Fiji for the future. 

We have sought to empower Fijians, modernize our country, and strengthen our economy. We have sought to rid our society and institutions of behaviour and practices that discriminate, that spread prejudice and misinformation. 

It has resulted in an overall decrease in the crime rate, the creation of a stable society—one that is safe for everyone including individuals, communities and businesses to succeed.

Under our past governments, corruption prevailed, our economy was mismanaged, and society was rife with political uncertainty—which fostered racial, ethnic and religious bigotry.

Although these governments were condoned either directly or implicitly by many, including our neighbours Australia and New Zealand, they were not just, not fair and not truly democratic. They led to intolerance, uncertainty and potential upheaval.

No society, no country—and indeed not Fiji—can ever be free if we do not remove or at the very least address directly these societal and political ills. 

Over the past few years, this is what my Government has done.

The imposition of the PER provided stability during this time of reform and change.

These reforms and changes—which have been for the clear betterment of society—include, among others:

• ·         Implementation of a common and equal citizenry
• ·         Outlaw of institutionalized racism and other discriminatory practices
• ·         Codifying equal rights for women
• ·         Creation of FICAC
• ·         Creation of the Independent Legal Services Commission
• ·         Instituting a Child Welfare Decree
• ·         Putting in place a new Crimes Decree
• ·         Creating a transparent and sustainable provident fund
• ·         Equal distribution of land lease monies
• ·         And Restructured Fiji Sugar Corporation and the Sugar industry
• ·         Getting better returns for landowners and providing security for tenants

All of this has made for a better society—one that is more fair, just and transparent meeting international standards. And in the last few years, Fiji has been able to do great things, some of which include:

• ·         We have been able to make unprecedented investments in education, healthcare, technology and communications.
• ·         We have invested greatly in rural, remote and maritime areas—including electrification, roads and bridges and internet access.
• ·         We have provided free text books, subsidized bus fares, food vouchers for the poor and those who live on the margins of society.
• ·         We have seen record-high numbers of visitors enjoying our country.
• ·         We have expanded our diplomatic ties to more nations than ever before.
• ·         We have brokered many successful partnerships to create jobs and diversify our economy.
• ·         we have given the impetus for private sector, both local and international, growth and investment
• ·         And we have even been able to cut taxes for 99 percent of taxpayers.

But none of this could have been done successfully if politicians, religious organizations, and self-interested individuals had been allowed to fan the flames of prejudice and intoleran

ce.

We would not have been able to move forward, if they kept us in the past. As we have seen of late and even through the so called freedom blogs there are still some who are clinging on to the past, some who seek to advance themselves even though it is through racial or religious vilification, defamation, encouraging  terror and violence or simply lying about Fiji. 

Negativity would have been further exacerbated by the media bias in particular of the Fiji Times and Fiji TV. Media is undoubtedly powerful and critical for a well informed public. However, personal, political and racial agendas cannot be allowed to take precedence and continue behind the façade of a free press. 

Like with all societies, the safeguard and well-being of the nation must come first. Without stability, without the right to exercise our own sovereignty, no nation can progress, no nation can prosper.

I urge all Fijians not to be influenced by those self-interested individuals, politicians, religious organizations, and others who may seek to disrupt the stability we have enjoyed in the past three years. 

There is nothing more I want than a Fiji with a truly democratic government, one representative of all Fijians. For the first time in our history, we are on the path to making this a reality. We must get there.

But know that elections cannot be held in an environment devoid of social cohesion and economic stability. 

Know that those who seek to destabilize society only do so to serve their own interests. They do not serve you.

Also know that we will not tolerate an iota of disruption to the peace, safety, stability and common and equal citizenry we now enjoy. 

We cannot claim to be truly free and maintain a liberal society if we are beholden to self-interest and prejudice and seek to advance ourselves at the expense of our fellow citizens and the well being of our country.

We are all Fijians. Let us continue on our path to a new constitution and elections—for all of Fiji and for a better Fiji.

-ends-

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News and Comments 6 January 2012

WEEKEND READING.  •Allen Lockington Column   • More reactions to lifting of PER

6.1.12
PM Voreqe Bainimarama will address the nation this morning on the way forward for the public and all stakeholders when the Public Emergency Regulation will be lifted on Saturday.

THE AUSTRALIAN-Fiji Business Council has asked the Australian government to acknowledge the steps taken by its Fijian counterpart in lifting the Public Emergency Regulations. And the council has asked the Australian government to make some adjustments to the travel sanctions imposed on Fijians.

THE UK is looking forward to a public consultation process on a new constitution for Fiji which will commence next month. While welcoming the lifting of the Public Emergency Regulations, the UK government said the announcements were a step in the right direction.

RABUKA. FORMER Fiji Prime Minister Sitiveni Rabuka   believes Australia and New Zealand governments should consider their stance against Fiji following the decision of Prime Minister to lift the Public Emergency Regulation.

CREDIT CARD LEVY. A 2% levy on credit card balances came into effect on Jan 1. This was announced in the moderate anti-governmendt blog Fiji Today: "Government will now take 24% per annum of your credit card balance ... the money sharks." But 2% only becomes 24% if credit card users have an unpaid negative balance that remains consistent for 12 months. Why do the anti-blogs always see the worst possible scenarios?

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CCF Welcomes Lifting of PER

Lifting of PER Restores Fundamental UDHR Freedoms 

[My underlining -- Croz] 

The Citizens’ Constitutional Forum has been calling for the Public Emergency Regulation to be lifted since April 2009 and welcomes the announcement by Bainimarama that it will cease from January 7th, 2012.

“It is good as the PER fundamentally restricted people and ordinary citizens to be engaged in discussions on key issues which will dominate the next few years. Interestingly under the Universal Declaration of Human Rights these freedoms of assembly (Article 20) and opinion ( Article 19) were curtailed and violated with the imposition of PER, says CEO Reverend Akuila Yabaki.

“The lifting of the PER is a good sign by government as it represents a credible step in the right direction. But it is the first, belated as it is, and we may need to focus on this  an opportunity for the many more steps,” says Rev. Yabaki.

“The media Decree will now be allowed to be tested as the Duplication in Section 16 of the PER is covered by the Section 80 of the Media Decree which prohibits publication and broadcast of material which would give rise to public disorder. 

The PER,  however, restricted assembly and this is the fundamental difference meaning that groups, political, social, church can now freely exercise their fundamental right to sit and discuss issues.”

“This freedom means that potential spoilers will also be allowed the same freedoms. They must be allowed to express their views so the debate and discussion on key national issues and the way forward represents the view of all citizens of Fiji, a country of diverse people stresses Rev. Yabaki.

“In a way the blogs will no longer dominate political discussion. The other concern area

is if the media entities will quickly refrain from Self Censorship and adjust to practicing a

freedom and responsibility that is fundamental to all.”

“Opinion makers offshore must also acknowledge that the lifting of the PER has a lot to

do with the work by CSO’s over the last 3 years. The series of dialogues at the different

levels allowing space for reasoning out the call for the removal of PER. CCF has rather

been unrelenting in its call for the removal of PER and yet at the same time we have had

to apply for Permits. Last year alone we had to apply for about 70 Permit Applications for

each event and activity, 2010 about 80 permits applications” says Rev. Yabaki.

“The process is the first step and the real test if the current regime can shoulder the

diverse opinion some of which will be negative and critical and allow the groups to

assemble and talk freely without having to resort to the imposition of PER again. The

fact is if this freedom is not practiced with responsibility we may find ourselves back to

restrictions and this may delay the processes that promise to return us back to

sustainable democracy” stresses Rev. Yabaki.

“Lifting of the PER must be understood in the concept that it allows us our fundamental

freedom of expression. The work for Sustainable Democracy is in the Constitutional

Work, the Electoral Reform, A legitimate Consultation Process, the preparation of the

people for the polls and looking at the truth and reconciliation issues together with the

exit strategy for the current regime” stated Rev. Yabaki.

For further information please contact the communications team at CCF on

communications@ccf.org.fj

……………………….

Reverend Akuila Yabaki

CEO - CCF

The CCF is a non-government organization that educates and advocates for good

governance, human rights and multiculturalism in Fiji. We are not aligned with any

political party.

 

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