‘Fiji Human Rights Commission is Independent’
The receptiveness with which Fiji engaged with the UN High Commissioner for Human Rights on the occasion of his recent visit is a strong testament to Fiji’s openness to international scrutiny.
That apart from the Government, the High Commissioner had the benefit of listening to a polyphony of dissenting voices who without fear of reprisal or recrimination were able to say in a public lecture that they are not free, civil society that freely expressed its fears about shrinking civic spaces, opposition politicians who spoke without restraint about draconian laws, the need to delimit rights and freedoms and whether our independent institutions are truly autonomous and a media that openly published and continues to do so well after the visit of the High Commissioner for reporting in a highly punitive environment attests to the strength of our democracy.
If not usurped by narrow and parochial political interests, these visits including that of the UN Special Rapporteur on the right to education, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the UN Independent Expert on the enjoyment of human rights by persons with albinism and most recently by the High Commissioner can be a catalyst for intelligent discussions that are critical to the interests of the public on one of the most pressing human rights challenges of our times: balancing our rights and freedoms with the responsibilities that come with it in a democratic society.
Core human rights conventions
The calls to ratify core human rights conventions namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights while salutary needs to be foregrounded in the realisation that these Conventions too, while guaranteeing fundamental rights and freedoms, come with justifiable limitations that are in consonance with the freedom of speech, expression and publication, freedom of assembly and association provisions in the Fijian Constitution. Whether and how these limitations are interpreted towards the just ends of human rights, democracy and the rule of law are conversations that have yet to materialise because the political fault lines run too deep.
Despite the conversations and undertaking to constructively engage following Fiji’s Universal Periodic Review, there is no evidence of constructive engagement between civil society and the Government. Engagement with the state is seen as complicity although one can still engage with the state while holding it to account.
Conflict of interest
Although the High Commissioners remarks, and it is unfortunate that the Commissioner never raised these issues in his discussions with the Director of the Human Rights and Anti-Discrimination Commission of also holding the Director’s position as well as the Chair of the Media Industry Development Authority (MIDA) may give rise to “the perception no matter the Director does, the perception that there could be conflict of interest”, appears to have given politicians who have been either silent, complicit in the perpetuation of hate speeches, or launching the most virulent attack on the Human Rights and Anti-Discrimination Commission in the name of freedom of expression a new lease of life and a convenient temporary distraction from the controversies surrounding the announcement of political candidates with dubious disposition, the fact remains that should the Director resign from both these positions, Fiji will still have to grapple with issues of hate speech, incitement to violence, reporting that is bereft of impartiality, accuracy, balance and fairness, balancing freedom of expression with the right to reputation, privacy and human dignity. The jurisprudence on freedom of expression will need to be developed. The profound irony of the MIDA Act reportedly inhibiting investigative journalism and covering of issues deemed to be sensitive is that media reports that have been the subject of scrutiny for either inciting violence or impugning independent institutions have in fact been bereft of investigative journalism.
Autonomy of commission
On the question of whether the Human Rights and Anti-Discrimination Commission is truly autonomous given “a basic structural flaw” as observed by the High Commissioner bringing “into question whether these bodies are truly autonomous or not”, I can easily quote section 45 (7) of the Constitution provides that “in the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law”.
I can further quote section 45 (8) and 45(9) guarantees the administrative and financial autonomy of the Commission or section 45 (11) which requires that the Parliament shall ensure that adequate funding and resources are made available to the Commission, to enable it to independently and effectively exercise its powers and perform its functions and duties.
Or even allude to section 45 (12) which expressly provides that the Commission shall have control of its own budget and finances, as approved by Parliament or chart the Commissions progress in ensuring compliance with the Paris Principles and the steps it is taking towards seeking accreditation.
Proffered evidence
However, the judgement on the Commissions autonomy, its ability to dispense with its constitutional mandate ultimately lies in the hands of ordinary citizens of Fiji for whom the Human Rights and Anti-Discrimination Commission is the measure of last resort. So I leave the question of the Commission’s autonomy to:
• The child who was removed from school on the grounds of her religion, conscience and belief • The child who was sexually assaulted and denied medical examination
• Women who are victims of gender-based violence • The Iranian refugee who was desperately seeking refuge in Fiji amidst calls and pressure by leaders of the two political parties, who are now ironically tweeting and quoting the UN High Commissioners statement, on the state to deport without delay
• The HIV positive individual who had difficulty accessing much-needed antiretroviral drugs because of the stigma and pathologisation of Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) persons • The individual who was precluded from donating blood due to his sexual orientation • LGBTI persons and in particular the transgendered community and the discrimination they have suffered in accessing justice, securing accommodation and finding jobs that afford them human dignity
• Persons living with disabilities who struggle every day to use basic public services such as public transportation and to reasonable accommodation • Those that have been subjected to hate speeches because of their race, religion or sexual orientation
• Those who have been arbitrarily evicted denied access to justice as well as the right to water and sanitation • Those that have been subjected to brutality, cruel and degrading treatment • Those that the Commission has assisted in accessing courts and tribunals in the restitution of their rights I leave them to answer the question of our autonomy and NOT the political elite of Fiji who hasn’t spent a day in prisons speaking to inmates, in police stations or hospitals and the streets engaging with those with mental illness.