Fiji urged to revise draft constitution to protect rights
In January 2013, the government scrapped a draft of the constitution developed by a committee headed by a noted constitutional and human rights lawyer, Professor Yash Ghai, and handed duties to draw up the constitution to government legal officers in the attorney general's chambers.
"This draft constitution represents a major step backwards for human rights from the constitution thrown out by Fiji's military in April 2009," said Phil Robertson, deputy Asia director at Human Rights Watch. "Unless the government revises this draft constitution to guarantee freedom of association, assembly and expression, it's hard to see how Fiji could become a rights-respecting democracy."
Since Commodore Frank Bainimarama took power in a military coup on December 5, 2006, his government has consistently attacked critics, including arbitrarily detaining them, and instituted heavy censorship. The military and police have indiscriminately arrested and detained human rights defenders, journalists, and labor leaders.
Under the current draft, significant restrictions in articles 17, 18, and 19 would allow the government to interfere with key rights of freedom of expression, assembly, and association. The draft constitution sets out broad limitations to these rights "in the interests of national security, public safety, public order, public morality, public health, or the orderly conduct of elections."
The International Covenant on Civil and Political Rights, which Fiji has neither signed nor ratified, says that any restrictions must be provided for in law and strictly necessary to accomplish the specific objective at hand. However, the Fiji military's track record of repression suggests that these restrictions will be applied in a way that risks destroying the very essence of these rights.
The elections exemption is particularly chilling, given that Fiji's military government has long stated that it intends to hold national elections under the new constitution before September 2014. Under the draft constitution, the authorities can also limit freedom of speech when speech could impose "restrictions on the holders of public office." This loophole would allow authorities to limit basic rights and freedoms for anyone they find to be critical of the government and authorities.
Under a state of emergency, any powers assumed should be subject to independent judicial review. The government of Fiji should revise the draft constitution to ensure that rights and freedoms shall be respected at all times, including during emergency situations. Any limitations should conform to the requirements set forth by the International Covenant on Civil and Political Rights for emergency situations, both in its article 4 and General Comment No.29.
Under article 20 on "employment relations," the draft constitution protects the right to form and join a trade union, and to participate in union activities. However, it would permit limitations on freedom of association and right to collective bargain "for the purposes of regulating the registration of trade unions" and the "collective bargaining process." These provisions would undermine the ability of trade unions to defend the fundamental rights of workers on the job freely, further contributing to a climate of fear and impunity.
In previous years, the government has made various attempts to dismantle the labor movement, prompting strong criticisms by the International Labour Organization (ILO) In September 2012, the Fiji government expelled representatives from the ILO sent to Fiji to examine workers' complaints about restrictions on their right to freedom of association.
"Fiji's military rulers have made a regular practice of stripping workers of their fundamental rights, including the right to form a union," Robertson said. "The government should show it's serious about democratic reform by taking real action to restore the rights of workers to protect their interests."
Chapter 10 of the draft constitution also grants absolute immunity to those responsible for past human rights abuses and extra-constitutional seizures of power. "Absolute and unconditional" immunity is granted to all members of the public service, public office holders, and security officials for actions and abuses taken between the coup d'état of December 5, 2006, and the seating of the new parliament under the draft constitution. There is no limit to this immunity and the draft constitution states that the immunity provisions shall never be revoked or altered, nor can any court review them.
"Rarely has a whitewash of past rights abuses been so sweeping and absolute," Robertson said. "Make no mistake about it, adoption of this constitutional provision will slam the door on efforts to achieve accountability and justice in Fiji."
Fiji is party to the Convention on the Elimination of All Forms of Discrimination Against Women, and has an obligation to respect, protect, and fulfill women's rights. Notably, the draft constitution prohibits violence within the family and workplace and also guarantees the right to reproductive health.
But the protection against gender-based and other discrimination is weakened because the constitution merely includes 'sex' and 'gender' as prohibited grounds for "unfair" discrimination in article 26. In order to strengthen constitutional safeguards on women's rights, at a minimum, the draft constitution should unequivocally guarantee women's rights to equality and non-discrimination. The inclusion of the term "unfair" is not known in international law – all forms of discrimination, meaning unjustified negative differential treatment of members of particular groups, should be banned, Human Rights Watch said.
The government should also consider creating mechanisms to address inequality between men and women as a matter of priority. Previous drafts of the constitution included measures to encourage the political participation of women in parliament, but those provisions have been removed.
In article 26 the draft constitution specifies protection from discrimination on grounds of sexual orientation, and gender identity or expression. However, it limits this right in the case of marriage, adoption, and inheritance, violating the principle of non-discrimination.
The constitution recognizes the right to work and achieve a just and minimum wage, but does not specify the basic conditions that enable the right to be fully realized, Human Rights Watch said. Those should include equal pay without discrimination on any grounds, safe and healthy working conditions, equal opportunity for promotion, and rest and leisure.
The draft recognizes that the state has a responsibility for the progressive realization of the rights to housing, sanitation, freedom from hunger, and social security but does not explicitly state that the government should take active measures to this end, whether through international cooperation or with specific national programs. Neither does it make other principles of international law on economic, social and cultural rights directly applicable, such as by including a minimum set of core obligations. Without the inclusion of these principles, the government of Fiji falls short of its obligations under international law.
The draft includes new amendments such as for indigenous rights, guaranteeing equality and non-discrimination to the iTaukei, Rotuman, and Banaban populations under article 26. The constitution should go further in securing the land rights of indigenous populations in article 28, including the international guarantee of free, prior and informed consent.
Foreign governments and international financial institutions engaged with Fiji should call on the government to revise the constitution to eliminate provisions that would limit basic freedoms and human rights, Human Rights Watch said. The government of Fiji has an obligation to ensure that its constitution is compatible with its international human rights commitments and customary international law.
"Human rights and democratic governance have been denied for far too long to the people of Fiji and they should not have to accept half-protections of their human rights," Robertson said. "The international community should not let this reform effort fall short of real rights protections."
Human Rights Watch
Human Rights Watch