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Great concept, bad reality: the Amnesty Bill needs a rethink [The Fiji Times, 31 May 2005]

16/03/2012

Government is proposing a “Promotion of Reconciliation, Unity and Tolerance Bill”.

These are great objectives that can and should be pursued in their own right.  And Government may wish to set up a neutral committee to examine and advise on how to promote genuine reconciliation, tolerance and unity in the country.

But “reconciliation”, “tolerance” and “unity” are states of the mind which no Government can change by legislation, and there is no new mechanism proposed in this Bill that is likely to promote reconciliation, tolerance and unity amongst our people.

Unfortunately, amnesty for perpetrators and compensation of victims are the Bill’s only concrete measures, and more unfortunately, the measures proposed will seriously undermine investor confidence.

Government must heed the words of the President of the Fiji Law Society when he bluntly warns, the “proposed new law poses a serious threat to the rule of law …  undermines the independence of the judiciary …. parts of the draft bill may be unconstitutional [and] wise investors do not sink their money in countries where the just rule of law is under threat”.

It might also be added that to grant amnesty to military personnel who have committed acts of treason, mutiny and murder, will be to deeply undermine discipline in the armed forces, and be a recipe for continuing mayhem both in the military and the country, further undermining investor confidence.

Politically appointed Commission

   The all-important five member Commission,  the 3-member Victims and Reparation Committee and the 3-member Amnesty Committee will directly or indirectly be  politically appointed by the Government of the day.

It is these politically appointed Committees (not an independent judiciary) which will recommend to the Commission the “extent of excessive violation of human rights” to be declared by the Commission”, decide on the extent of reparation, and decide whether amnesty should be granted to the applicants.

Section 21 (2)  states that In dealing with applications for amnesty, the Commission shall give priority to applications for persons in custody”.  In other words, those who have already been found guilty by the courts.

Section 21 (9) requires the Commission to determine whether the act or omission for which amnesty is being sought was associated with a “political motive or objective”, committed on behalf of a political group, organisation or body of which the applicant was a member, agent or supporter,  and neither the act not the omission was committed for personal gain, out of personal malice, ill-will or spite”.

   How on earth could the Commission determine these terribly nebulous intentions of the perpetrators?

And how can these politically appointed Committees and Commission make valuation decisions which have for centuries been the prerogative of the courts, in which precedence has built up a consistent body of valuations knowledge, in which the investors (both local and foreign) have faith?

The world over, investors expect that if their investments are harmed because of illegal acts by individuals or organisations, then they will be able to obtain just and fair compensation from the courts.

And they will obtain the appropriate levels of compensation from the perpetrators of the crimes – for only then can there be any incentive for people to not commit such crimes.

Which foreign or local investor will have faith in Section 19 (1) (f) which states that the guiding principles for the (politically appointed) Commission and Committees include “adoption of informal mechanisms for the resolution of disputes, including mediation, arbitration and any other procedures provided for by the customary practices of the parties to facilitate reconciliation and redress for victims”.

Stopping the Law

   Foreign investors must worry that Section 21 (6) allows the Commission to request the courts to suspend any civil proceedings taking place as a result of the same actions which are claimed to be the grounds for the amnesty application.

Section 20 (14) states that “The granting of an amnesty by the President shall be a legal bar to any other prosecution based on the same facts upon which the amnesty was determined and granted”.

While Section 21 (11) states that “no person who has been granted amnesty in respect of an act or omission shall be criminally or civilly liable in respect of such act or omission and no body, group or organisation or the State shall be liable either directly or vicariously for any such act or omission”.

In other words, all claims for compensation will be taken completely out of the hands of the normal judicial system and placed in the hands of this politically appointed Commission and Committees.

Someone’s investment could be destroyed or seriously harmed, in the name of some alleged “political objective” which could, for instance be the driving out of expatriate investors so as to give indigenous people greater ownership of the tourism industry.

Criminals could be granted amnesty, protected from civil or criminal charges, and given immunity from claims for fair compensation.

All that needs to be proven is that there was some “political objective” and the crimes were not conducted for personal gain of the perpetrators.  And who can ever prove what personal gain there may be for perpetrators a few years down the line?

Perpetrators and compensation?

   While Section 20 (1) sees a Special Fund being established for compensation purposes, there is no guarantee that it will be adequate.  And the amounts made available may well be a pittance (which should be a relief to tax-payers).

For death or personal injuries to any claimant, Section 18 (5) states that the Committee “shall be guided by any limitations prescribed by the Minister and endorsed by resolution of the House of Representatives”.  And the compensation shall be limited to the “maximum amount which may be paid to such a claimant under Part II of the Workman’s Compensation Act”.

But the public must ask why should the compensation be paid by the ordinary hard-working innocent tax-payers, who were neither the perpetrators nor the beneficiaries of the coups.  Indeed they have lost heavily and many continue to suffer.

Perpetrators and Restorative Justice

   Section 3 (d) of the Bill states that it is based on the principle of restorative as opposed to retributive justice.   The section on “restorative justice” has nice sentiments about involving the victims, offenders and the community in the reconciliation process.

But the Bill requires absolutely nothing concrete from the offenders.  The offenders may or may not reveal anything at all about who were behind the coup, who planned it and financed it, who played the critical roles.

   It is merely stated that the Commission can receive “admissions and voluntary disclosures”.  But Sections 15 (1) to 15 (5) has a number of protections which imply that no witness may be compelled to incriminate themselves, their family members, their medical clients, their legal clients, their religious clients.

   And then Section 15 (6) states that no statement, or application of record of any hearing by the Commission may be admissible as evidence “in any court or other legal proceedings”.

So offenders get completely forgiven, are set free, their crimes are excused and legally expunged – at no cost to themselves. And they are protected from any charges in the future.     How could this Bill discourage future “politically motivated” crimes?

There are many other debatable aspects of the Bill – such as Preamble (4).  Not only are there serious disagreements in our society about what led to the 1987 and 2000 coups, but it is totally unreasonable to expect that any constitution can protect and preserve indigenous  “interests, their values, traditions, customs, way of life and economic well-being”.

   The Costs of the Quango

   The public should not have any illusions about the financial burdens that are likely to be imposed on tax-payers.

There will be the salaries needed for some eleven Commission and Committee Members (who must include retired judges) for three years at least.  There must be support staff to assist in the numerous inquiries. Secretaries, typists, clerks.   There will be office space, computers, four-wheel drives.  There must be sitting allowances and hotel bills all over the country. And the inevitable cost over-runs.

It will easily chew up six millions in administration costs alone. And then there will be god-knows how much required for the actual compensation itself.   All paid for by our hard-pressed tax-payers. Do we not have better uses for our taxes?

Why risk investor confidence?

   The Attorney General states that there is no legal provision for a Referendum and indeed we should not waste our country’s valuable resources on a Referendum.

If the Government genuinely believes that this Bill is not a party political Bill, it could allow all parliamentarians to vote in a secret ballot “according to their conscience”.

But we are going through a period in which our sugar and garment industries are under serious stress andFijidesperately needs investment.

And investors must be disturbed if they see government tabling a Bill which has been so severely and scathingly condemned by the Fiji Law Society, which includes amongst its members, the corporate lawyers who typically act for both local and foreign investors.

Government needs to think not only about the dangers of this Bill currently, but also any future misuse were the reins of State power to fall into less responsible hands, in comparable or worse situations of civil disorder.

Government would be well advised to withdraw this Bill altogether.

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