Tuesday, April 9, 2013

Voices of the People: Rule of Law

UNPUBLISHED BY THE FIJI TIMES DUE TO LEGAL ISSUES.... (was supposed to run on 20th March, 2013 in my usual Off the Wall column)

This week’s Off the Wall continues to share a summary of the book, “Voices of the People: Perceptions and Preconditions for Democratic Development in Fiji”. In this six-part series we seen the results of the research conducted by the Institute for Research and Social Analysis of the Pacific Theological College into issues of leadership, decision-making and democracy. In part 4, participants of the research share their perception on the Rule of Law.

Participants and interviewees alike spoke about being subject to various sets of rules and laws in their day-to-day lives. In particular, there is recognition that two systems hold great sway in Fiji: customary rules and state law. However, customary rules are seen as being applicable mostly in the rural areas and villages rather than the urban areas. Customary rules are also seen as mainly affecting the iTaukei, and not Indo-Fijians. The majority of interviewees and participants feel there is a conflict between the two sets of rules, and that this is most acutely felt in relation to customary rules and human rights law (although not all feel that this conflict is irreconcilable).

Other issues giving rise to conflict include the tension between individual rights and group rights, and between rights and duties, responsibilities and obligations. While state law, including human rights law, is felt by most to be paramount, it was broadly agreed that there needs to be research done to:
1)      identify the various manifestations of customary rules in Fiji;
2)      decide how customary rules and state law should relate to each other (that is, either integrate customary rules into state law, or retain customary rules as a separate set of rules, but ensure that they are consonant with Fiji’s international human rights law obligations);  and
3)      realize that approach.

Opinions differed as to whether traditional leaders are still able to enforce customary rules effectively in their villages, or are losing their authority. To support the customary system of enforcement, a majority of iTaukei participants and interviewees want the Great Council of Chiefs (GCC) to be reinstated, albeit with some reforms.

There is some concern about a possible lack of separation of powers in customary structures, where traditional leaders often act as investigators, prosecutors and judges in cases brought before them. If customary rules are to be taken seriously, then the structures supporting and implementing these rules should be similarly examined and strengthened.

Both participants and interviewees feel that there have been so many changes in state law (including the abrogation of the 1997 Constitution, the amendment of many pieces of legislation, and the introduction of numerous decrees, not to mention that a new constitution is currently being drafted and debated) that they are uncertain as to what laws pertain to them. As a result, many called for a concerted and wide-spread programme of education about law (in particular human rights law) to be developed and implemented as soon as possible.

Participants feel that Fiji should have a constitution, but generally did not specify whether they preferred the 1997 Constitution, or a new constitution. The majority of interviewees did not discuss this issue in any detail, but of those who did discuss it, the vast majority want the 1997 Constitution to be re-instated (or believe it has not been lawfully abrogated, and is therefore still in force). However, they are not averse to the 1997 Constitution being amended if this proves necessary, particularly those sections dealing with electoral matters.

In relation to the enforcement of state law, the police force was heavily criticized by both participants and interviewees; criticisms included: that the police were often late in attending crime scenes, or didn’t turn up at all; that the proportion of unresolved cases is very high; that the police are not properly trained and are under-resourced; and that corruption is rife amongst police personnel. There appears to be very little trust in the police, although some think that the police force is better now than before 2006. Finally, interviewees raised concerns about the militarization of the police in particular, and what they viewed as the military usurping the role of the police. It is clear that there needs to be a great deal of work done both to improve the performance of the police, and the perception of that institution.

Participants appear to have had very little personal experience with the Fijian court system, but the common view is that delays in dealing with cases are common. There is also a perception that the law does not apply equally to everyone, and that those with status and/or money are above the law, or receive preferential treatment from the courts. As for interviewees, a few think that the courts are doing a good job under difficult circumstances, but most expressed serious concerns, particularly in relation to the independence of the judiciary. It is felt that the independence of the judiciary is not being respected by the current government.

Closely connected to judicial independence is the separation of powers, which many interviewees feel is being undermined in the current set-up. In addition, it is felt that there are insufficient local lawyers included in the magistracy and the judiciary, and, that as a result, the courts lack a proper understanding of local context and culture, which is seen as important to achieving justice in any case before the court.

The role and function of the military was a matter for debate amongst interviewees, given its involvement (in one form or another) in all the coups that have taken place in Fiji: a few want the military to be abolished, but most feel that this is not feasible. As to the military’s role in protecting the state and the constitution, there was broad agreement that there needs to be an informed and in-depth debate on this issue, dealing particularly with such questions as on what grounds, if ever, the military could consider removing an elected government. The vast majority of interviewees want the military to return power to the people as soon as possible; an exit strategy is seen as being critical to this process, with most mooting some form of amnesty.

In relation to returning power to the people, the vast majority of participants and interviewees feel that installing a democratic system of government, along with the promotion and protection of human rights is the best way forward for Fiji. However, there was also the recognition that these are not going to be realized overnight in Fiji, but will take time to develop, and – vitally – must be tailored to Fiji’s specific circumstances.

Read more details of the findings of the research study in “Voices of the People: Perceptions and Preconditions for Democratic Development in Fiji,” which is available from the Pacific Theological College, Suva.

Next week: What the people think of the issue of Citizenship.

“Simplicity, Serenity, Spontaneity”

Rev. James Bhagwan is currently a student of the Methodist Theological University’s International Graduate School of Theology in Seoul, South Korea. He is a member of the Institute of Research and Social Analysis’ Strategic Think-tank. Email: padrejames@gmail.com or visit http://thejournalofaspiritualwonderer.blogspot.com

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