Submission to the Parliamentary Select Committee on Foreign Affairs & Defence On the Ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)

Thursday May 10, 2018, by National Federation Party Leader, Professor Biman Prasad

 

Honourable Chairman and Committee Members

Before I start on my submission, I wish to put on record our strongest disgust at the manner in which a Member of this Committee as Acting Chairman, responded to the submission by representatives of the NFP Youth Wing on Friday 4th May.

Also for the record, our Youth Wing were pleasantly surprised to have been invited by the Committee, even though they were only given less than 48 hours notice AND they stayed up until the early hours of Friday morning, to make sure that they got what they wanted to say, right. Our young people, are also students, consultants and candidates — time is a precious commodity, and yet they honoured the outreached hand of “consultation” from Honourable members of this august Parliament.

Honourable Howard Politini’s comments and agitated manner was most unbecoming of a Member of Parliament especially when we recall the Acting Prime Minister, who only at the last sitting of Parliament, lauded the valuable approach of seeking input from our young people.

I quote the actual comment by the Honourable member of the Committee directed at our Youth Wing General Secretary, Mr Dylan Kava because I am quite sure that we can ALL learn from it and perhaps resolve, in moving forward, that this is not how we should behave in The People’s Parliament as elected representatives:

I quote, “ I’ll interrupt you right now. Your contribution, this morning is non-constructive. We had a Youth wing before you, very constructive on the ratification of these treaties. You beginning to sound like your Leader! Be constructive in your contribution when you come to this House!” – Unquote

Honourable Chairman and Members, all of us as Members of Parliament must know and understand the role and workings of a parliamentary select committee. This becomes significantly important when our youth are concerned. Our youth are politically enlightened, unafraid to speak their mind and raise hard questions.

This is exactly how it should be because if we cannot reconcile different views in leadership and come to solutions together, we should think very carefully about our roles as elected representatives of the People.

Let me just add a bit of light-heartedness to this issue, Honourable Members. Please allow me to share a real-life situation where our party, was invited to speak to some young people in November last year. During the course of the discussion, the topic then turned to the issue of “sex education” that the young people felt needed strengthening at the school education level because, as they told us very pointedly, it was happening among their peers and the information they were getting at school was doing nothing to prevent teenage pregnancies. They were concerned about the rate of teenage pregnancies and young parents among their peers.

As you can imagine, our party representatives were all momentarily stunned and then after a few laughs with the young people where they had to laugh at THEMSELVES first (because their body language gave away their discomfort on such a topic) — the discussion finally turned into one where REAL solutions were then discussed.

My point is, Honourable Chair and Honourable Members, we all have to embrace the space of difficult conversations, and perhaps as we’re all  from a different era, re-learn the art of real listening, and real engagement. I myself can confirm that despite my experience as someone supposedly LEARNED in Economics, this has been a steep learning curve for me also. And for that I am very thankful to our young people, for whom, I too learn MUCH from. I mean, they’re the first people I turn to when I need help with my mobile phone!!

Thank you Honourable Chair and Honourable Members of the Committee for your indulgence, please allow me to now turn to the matter of the 2 International Treaties before you for consideration.

The ratification is long overdue. The Multinational Observer Group (MOG) that observed the 2014 general elections had recommended in its final report that Fiji needed to ratify the ICCPR. However, we believe this is being rushed through now as part of a campaign to win a seat on the UN Human Rights Council this year.

But it should not be forgotten the Government’s reporting obligations as a State Party, will be complemented by shadow reports from civil society, and this too forms a valuable part of transparency and accountability at the international level.

In addition, unlike the Talanoa that we like to do everywhere else, except here where it matters the most, ratification will compel a rethink in how the State likes to normally do things. When we accept visits from UN Rapporteurs as we have in the recent past, these too are valuable reporting mechanisms as part of our obligations.

Most critical however is the codification of these Treaties into domestic law. That is where we as Legislators come in. We cannot fast-track, nor ratify with reservations, nor spin-doctor our obligations, because we should be walking into these international obligations with our eyes wide open.

If we are also serious about the full acceptance of international human rights laws, which both these 2 Treaties are central Treaties for, at the national level much will be required of our Anti-Discrimination and Human Rights Commission. Primarily, that this body MUST comply with the Paris Principles in order to qualify as a bona-fide “national human rights institution”.

Independent national human rights institutions must be extremely effective in serving as a link between a Government and civil society. It must be an institution that can hold up a mirror to the State and will enable the State to strengthen itself. I therefore urge the Committee to also consider how this body becomes autonomous – in its finances, administration and membership.

That, I believe, was the intention of the submission of our Youth Wing. The laws that we have at present do not presently align to these Treaties and, we agree with them — we should ratify, but we have A LOT of work to do to align to these international laws. Ratification is but a first, small step.

In their 2014 report, the MOG noted that Fiji had not ratified the International Covenant on Civil and Political Rights (ICCPR) and recommended that Fiji should consider becoming a party to it, so as to improve protection for the electoral rights of all Fijians.

The ICCPR amongst a lot of things states that all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

More importantly Honourable Chair and Committee Members the ICCPR stipulates that:

“There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent”.

This, together with the recommendation of MOG is important given what Government has done or has been doing, backed by laws and limitations in the 2013 Constitution that derogate the political rights and protection of electoral rights of all our people, contrary to what the Covenant states.

As far as we are concerned Honourable Chair and Committee members, the review and possible ratification of the ICCPR and ICESCR, while welcome, has come too late, with the dissolution of parliament happening anytime within the next six months until October 6th,and the election period now kicking in with the last possible date of elections in the third week of November, unless of course Government falls or loses confidence.

It is our belief that this is coming a little too late in the day, when elections in all likelihood are going to be held under the same restrictive and regressive laws, that needed substantial amendments as per the recommendations of MOG and the former Electoral Commission in its Annual Report of 2014. Apart from cosmetic changes, nothing has been done.

Both Reports have been before the parliamentary select committee on Justice, Law and Human Rights for almost 2 years. The committee has not reported back to parliament. Yet the Honourable Chairman of that Committee was quick to assure this parliament last month that they would be ready within a month to have a report ready on the Online Safety Bill referred to it last month.

So, Honourable Chair and Committee members, this goes against what the ICCPR states on the protection of electoral rights of all our people. Above all, it is about electoral integrity.

I believe we would be well within our rights to question the authenticity, of this sudden interest in ratification. Is it simply intended to signal that we are progressive, without actually following through with codification with equal urgency?

There are clear derogations and limitations that are basically entrenched in the Constitution and the Decrees; that do not align with ICCPR. A good example of this is restrictions on trade unionists and union staff from becoming members of political parties. They have to resign their employment if they do so or wish to contest elections.

Another example is the provision and meaning of being “ordinarily resident“, where a citizen must be ordinarily resident in Fiji for 18 months of the two years preceding nomination to qualify as an eligible candidate. Those on official government duties however can be absent from Fiji and be residents elsewhere, while students or those on work permits are severely punished by this discriminatory rule. This was not so under the Electoral Act of 1998.

Honourable Chair and Committee Members, Government may argue that Fiji hasn’t ratified the ICCPR for 32 years and they are “unprecedentedly” doing so now. The fact is that no previous government or Constitution since Independence had imposed such severe limitations as contained in the 2013 Constitution and Decrees which unbelievably are now called Acts despite not being legislated by parliament.

The conduct of some of our Independent Constitutional Officers is also questionable and we have grave doubts as to their genuineness in upholding civil and political rights of all our people – as well as human rights.

Fiji received the esteemed UN Human Rights Commissioner for a visit to Fiji in February this year. One of his concerns was and I quote: –

“Overly broad laws can be and have been used to prosecute journalists whose work is deemed to be against the “public interest or public order”, with violations punishable by fines of up to FJ$1,000 (US$530) or imprisonment of up to two years under the Media Industry Development (Amendment) Act 2015. Media organisations can be fined up to FJ$100,000.

This should be a very concerning statement for the State because it reportedly has the effect of inhibiting investigative journalism and coverage of issues that are deemed sensitive, as well as discouraging a plurality of views.

There have also been a lot of discussions recently about regulating hate speech and “fake news”. I have urged the Government to ensure that any attempts to legislate on issues relating to freedom of expression are in line with articles 19 and 20 of the ICCPR, and for them to consult the Rabat Plan of Action* for guidance on drawing the delicate lines between permissible speech and speech that may amount to incitement.

The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji stated in his June 2017 report, the following extract from paragraph 57:

  1. The Special Rapporteur recalls that other laws also prohibit hate speech. Section 17 of the Public Order Act criminalizes the spreading or stating of words, whether spoken or intended, or by signs or visible representation, that are likely to: incite racial dislike or hatred of any race or community; promote feelings of enmity or ill will between different races or communities; or prejudice the public peace. It also criminalizes making intimidating or threatening statements “in relation to a race or community other than his own which is likely to arouse fear, alarm or a sense of insecurity amongst members of that race.” The Public Order Amendment Decree of 2012 prohibits grants of permits to any person or organization that on previous occasion has engaged in racial or religious vilification. Furthermore, the Media Industry Development Decree of 2010 prohibits media content that: (a) is against the public interest or order; (b) is against national interest; or (c) creates communal discord. The Special Rapporteur also recalls that the lack of a proper definition of what constitutes racist or hate speech gives wide ranging discretionary powers to MIDA and the executive to prohibit contents by the media.

Hopefully the Online Safety Bill, currently being considered by another Parliamentary Committee, is also assessing their recommendations against the lens of these 2 key international human rights Treaties drawing on this report also.

While there are a number of independent institutions, including the Constitutional Offices Commission, the Human Rights and Anti-Discrimination Commission (HRADC) and the Fiji Elections Office, I am concerned about a basic structural flaw that brings into question whether these bodies are truly autonomous.

It was a matter of grave concern that the Supervisor of Elections chose to react to the UN Special Rapporteur on Racism in the manner that he did in a speech during a Media Workshop on 20th February 2018.

He said and I quote:

here we have a classic case of a flyby where the maker of the statement fell victim to bias, probably politically influenced statements to be drawn by some as the ultimate conclusion on the matter. We have already seen how the unsubstantiated statement is being made a political football and being tossed around” – Unquote.

Honourable Chair and Honourable Committee members, when the Supervisor of Elections finds it appropriate to make political statements, that I am sure upon ratification of these Treaties, will rear its head again, this is gravely brow-raising to say the least.

Unfortunately Honourable Chair and Honourable Committee members, we also have a compliant Electoral Commission, which chooses to await instructions instead of advocating for legislative changes to Parliament, through the State. It would be very interesting to assess if the Electoral Commission proper has a view on these 2 Treaties because of their legislative mandate — quite apart from the Elections Office who we understand has made a submission already.

An overwhelming majority of people of Fiji, whose political rights the Commission is supposed to safeguard by ensuring integrity in the electoral process and that they are not restricted by limitations, do not know the background or credentials of the Commissioners. This wasn’t revealed to the public when they were appointed, unlike in January 2014 in the case of the former Commission.

But WE KNOW Honourable Chairman and Committee Members. We know and have evidence to prove that certain Commissioners have very close links to the ruling party. We know that some, rightly so, do not know anything about the electoral process. Nobody is expected to do so but those vested with the responsibility of ensuring the protection of electoral rights of all Fijians SHOULD.

They may be and are highly efficient and successful individuals, but their role as Commissioners can be rightly questioned. We therefore urge the Honourable Attorney General to inform the people of Fiji of the credentials of the Commissioners just as he did as an Attorney General in a military regime in January 2014.

In closing Hon Chair and Committee membes, I raise the issue of the 2017 Census because the withholding of that data by the State is also a clear indication that we are miles behind of the expectations of ratification of these 2 Treaties.

Again I draw on the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and his 2017 report, where on this issue of disaggregated data — he said this in paragraph 53, and I quote the following excerpt:

  1. “…The Special Rapporteur is fully aware that in some instances laws prohibit the official collection of ethnically disaggregated data and statistics. Under such circumstances, there are still innovative ways of ensuring that such data is available for policy making and change. He recalls that in such a case, the collection of disaggregated data was undertaken by independent research institutes and universities, with the support of the State.

Honourable Chairman and Committee Members, against this backdrop, the move to ratify these two treaties, while welcome, has come too late and until we are convinced otherwise, is a cosmetic exercise. Unless and until Government fully complies with the ICCPR and the ICESCR and its Articles by changing laws conforming to the Covenant, we treat this as farcical.

I thank you for your time and greatly look forward to your report and sharing more thoughts on it in Parliament.