Fiji Sun

‘Fiji Human Rights Commission is Independen­t’

- Ashwin Raj Human Rights and Anti-Discrimina­tion Commission Director Edited by Mohammed Zulfikar Feedback: jyotip@fijisun.com.fj

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.

 ?? Photo: UNDP ?? Participan­ts at the Human Rights Day 2017 celebratio­ns in Savusavu.
Photo: UNDP Participan­ts at the Human Rights Day 2017 celebratio­ns in Savusavu.
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