27 February 2015: Oral Submission to the Standing Committee on Foreign Affairs and Defence on the Review of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)

ORAL SUBMISSION TO STANDING COMMITTEE ON FOREIGN AFFAIRS AND DEFENCE ON THE REVIEW OF THE UN CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (UNCAT)
27 February 2015

Who We Are: The National Federation Party
The National Federation Party (NFP) is the political the party with the longest record of service to Fiji and we proudly celebrated our 50th anniversary last year. We were born before Fiji became Independent and we have been part of the journey of modernizing Fiji since then. During this time, the NFP has always been the champion of principled policies and change for the betterment of all.

The NFP has always believed in the inherent power of our society’s diversity, including the rich cultural heritage of our indigenous people. During the past 50 years of the party’s existence, we have continuously promoted multiculturalism as the cornerstone of a peaceful community and we will not waver from continuing to strengthen the social cohesion between our ethnic groups.

The NFP has, is and will continue to stick to its enduring values of freedom for our people; democracy and good governance; and humility and understanding of the unique nature of our society. We believe in an open and accountable government. Our vision for Fiji is one where people have the freedom to earn a decent living, the freedom to question the government, and freedom from fear and oppression. We are committed to Fiji.

The Review of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or UN CAT
The intention of the Government to review and hopefully ratify the UNCAT is commendable yet we remain cautious about the sincerity of these intentions if Fiji’s profiling on the global arena by way of the stated idea that Fiji intends to become elected into the Human Rights Council in 2016, is a motivating factor. This Convention is about The People. Our People. Our Voters. Our Taxpayers – and the absolute and unwavering upholding of their inherent human dignity to safeguard against Excesses of the State. The inherent rights of Our People to be free from torture cannot be exploited to merely “tick boxes” in Geneva as was heard in the parliamentary sitting of 09 February 2015.

The National Federation Party of Fiji will only encourage and advocate Fiji’s ratification of this important treaty IF the Government is as committed and consistent as it is in its 2013 Constitution where the Freedom of Our People to remain free from cruel and degrading treatment is as absolute as it is on the constitutional document on which it is inscribed; and therefore Fiji’s ratification must be as absolute with absolutely no reservations.

Furthermore, it is not uncommon for international treaties to be ratified and yet domestic applications of it are not in step with the bold intent at the global level. For such a treaty as UNCAT and with all the heinous torture crimes against humanity (as section 87 of the Crimes Decree 2009 now cites it) committed by the State especially from the past coups reaching as far back as 1987 up until 2006, we respectfully implore upon this Committee that should ratification take place, to invoke Standing Orders 110 (e) and maintain a watchful eye over the implementation of the Treaty so that Article 19(1) of UNCAT is holistic and concise within the obligatory first year reporting period and that appropriate State funding is guaranteed to ensure that the periodic 4 year reporting obligations are embedded as part of a national paradigm shift.

It is our understanding based on the submission of the Solicitor General of 24 February 2015 to this honourable Standing Committee that there appears to be little appetite to adopt Articles 21 and 22 of this treaty. The resistance to Articles 21 and 22 where one State Party can report another State Party’s non-adherence to UNCAT appear to be unfounded because Article 30 provides for negotiation, arbitration and ultimately dispute resolution to the International Court of Justice between State Parties. Fiji’s international standing can only be enhanced and Fiji can only be considered sincere in its protection of human rights by the international community if it allows itself to defend itself on the global arena, that process is in itself a valuable “check and balance” against what should be robust national measures that must be adopted immediately and preferably within the first year reporting time-frame. Again, we respectfully remind this Honourable Standing Committee of Bipartisan Legislators that this Convention is ultimately about The People and the absolute and unwavering upholding of their inherent human dignity to safeguard against Excesses of the State. This Convention is not about what is convenient for The State and as Legislators we humbly submit that what is best for Our Citizens should be the ultimate lens that this Standing Committee then makes its recommendations on, for adoption in Parliament.

In terms of national alignment of laws and policies to UNCAT we respectfully bring to this Committee’s attention that “The Limitation of Liabilities for Prescribed Political Events Decree 2010” (decree 18 of 2010) goes against the principles of this Treaty. Under the Decree no compensation is payable by the State to anyone for damages or injury as a result of the political events prescribed in the Decree.

Furthermore, Section 172 (5) of the Constitution prohibits persons whose human rights have been violated before 21st August 2013 from complaining about such acts to the Human Rights and Anti Discrimination Commission.

These are but a few of the legal inconsistencies that NFP has identified. All limitations should be removed if Fiji is indeed sincere about ratification of UNCAT and upholding its commitment to it from the get go.

The Human Rights and Anti-Discrimination Commission
The Fiji Human Rights Commission, now known as the Human Rights and Anti-Discrimination Commission that is provided for in section 45 of the 2013 Constitution appears to have a “public perception” problem. These perceptions are not unfounded given its perceived role in acquiescence of the 2006 coup. That is not to say that this constitutional body should be completely discounted altogether. This body has a valuable role and State funds have been diverted towards this entity. As the constitutional guardian of human rights in Fiji, it is imperative that the Constitutional Offices Commission be convened as a matter of priority so that key appointments of the Human Rights and Anti-Discrimination Commission proper are made and that it can be enabled to do what it is constitutionally mandated to as per section 45, particularly in relation to torture.

We again respectfully urge this Honourable Standing Committee to invoke Standing Orders 110 (e) and maintain a watchful eye over the implementation of the Treaty should Fiji ratify, where the convening of the Constitutional Offices Commission and the appointments to the Human Rights and Anti-Discrimination Commissioners are made without delay in order to do justice to the sincerity of the intent to ratifying this Convention.

A Citizens Forum
It is our understanding that various calls from previous submissions have been made in support of a completely non-state and citizens-controlled body that spans across interest groups and religious entities that can look into the issue of torture at a national level.

The NFP believes it is worth investigating whether such a body can be organised that is completely devoid of any State influence where ordinary citizens can receive, table and discuss torture related issues. It must be noted that the definition of torture as the UNCAT lays out in Article 1 includes “severe pain or suffering, whether physical or mental” which is intentionally inflicted on a person etc – and within the wide ambit of the treaty definition is the need to made for it to be made relevant and meaningful at a national level.

Where torture is concerned and the wide ambit of its definition, it cannot be left to the State or State funded entities alone to receive, table and deliberate on national issues related to Torture and a citizens forum with an “ear to the ground” capacity is as critical as it is necessary. The practical mechanics of how this could work and the possible synergies of it, are in our humble opinion, best left to this Honourable Standing Committee to investigate and draw from practices from other parts of the world, as part of its invocation of Standing Orders 110 (e) and the Committee’s maintenance of a watchful eye over the implementation of the Treaty, should Fiji ratify.

It is even possible that such a Citizens Forum can be linked in parallel to, and synchronously with this Parliamentary Standing Committee so that appropriate legislative amendments and policies are looked into thereby ensuring that this Committee is well equipped with real-time perspectives from Citizen’s concerns.

Truth, Reconciliation and Healing
There appears to be an agreement that because of parliamentary democracy there is a need to move forward. The NFP can only be convinced of the sincerity of parliamentary democracy and forward movement if other draconian measures like the Media Decree, the Essential National Industries (Employment) Decree and others are repealed.

However, where torture in Fiji is concerned there are too many deep and festering wounds of Our People out there from as far back as the coups of 1987 up until 2006, to conveniently ignore or worse forget simply because Fiji intends to ratify this Convention.

Part of moving forward is also learning from the past and we respectfully implore upon this Standing Committee that in moving forward, it must also seek to rebuild and heal the nation, whether by way of a Truth, Reconciliation process or some other appropriate mechanism. It is necessary to have a national conversation and as uncomfortable and confronting as it may be, the outpouring of these wounds must be permitted in order for healing to then begin.

The NFP would support such a move that is inclusive and earnest.

Honourable Members We Thank You.