What to Keep and What to Lift in the Public Emergency Regulations (PER)

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By Crosbie Walsh

Abstract. I believe Government would win much support in Fiji and overseas —and take the wind out of its opponents sails— if it lifted the PER completely. Failing this, I urge Government to increase the authority of the police vis-a-vis the military; revisit detention practices and  blanket immunity; selectively and progressively lift restrictions on meetings and assembly; and lift the PER restrictions on the media. Readers too busy to read the full article may care to use the subheadings to read those parts of most interest to them.

Some time back a reader said that with the imposition of PER 'Government had embarked on a path that is only likely to see further rumour-mongering and division in society [and prevent] the dissemination of the ideas and the goodwill that will be essential in the next few years if the aims of the 'Roadmap' are to be achieved.'

Another reader thought PER and the attitude of the military were preventing the emergence of the new leaders, leaving Fiji only with the old leaders who had lost everything from the Coup, and not those it would need in the future. He wrote that if the Prime Minister wanted 'balanced, genuine new leadership in the country' he had to be more inclusive and open to alternative views and approaches. On PER he wrote: 'When you try and silence everyone someone somewhere screams....that is what is happening now.' Neither reader was opposed to government.  Both, in fact, wanted Government policies to succeed.

I'm sure one of the readers echo the thoughts of many when he said the last thing Fiji needed was a 'bunch of has beens back in power or the military leadership staying in power forever.'  He concluded by wishing the PM 's the best of luck as he faces his greatest challenge: how to can change from a military to a civilian style of governance where leaders take advice and know when it is the right time to step aside.

This article takes up these issues first by examining the PER and their purpose, and then by considering ways by which they can be lifted without jeopardising public order and the path the Bainimarama government has chosen to follow in the lead up to constitutional and electoral reform and elections in 2014.

The Public Emergency Regulations

The Public Emergency Regulations (or the PER as they are un-affectionately known) were introduced in April 2009, and have been extended, by Presidential decree, at three-monthly intervals ever since. A copy of the regulations in pdf format may be accessed here.

I have argued previously for all sides on the PER issue, saying that PER should be retained if there are specific, immediate threats against public order and Government; lifted, at least in part, if there are only general threats; and lifted completely if the threats are unlikely to amount to anything.

A military government by inclination is likely to find control mechanisms convenient, but a military government committed to essential reforms, dialogue, constitutional and electoral reforms and elections in 2014 is not credible if restrictions are maintained without proper cause. Whatever the situation, Government should be doing everything possible to ease the restrictions, as a sign of good faith in the people and as the only way to encourage dialogue.

There can, in my opinion, only be a positive reaction to the lifting or easement of the PER, both from within Fiji and overseas. And the recent rumblings caused by Ratu Tevita Mara's flight to Tonga that has served as a rallying point for the so-called democracy movement should not be a reason to dismiss thoughts of change now. Indeed, it could be that now is the most opportune time, for changes now would be the opposite to what the anti-government elements expect, and possibly have  planned for. I think they would be decidedly uncomfortable if Government lifted or significantly modified the regulations.

Lifting or making major changes to PER would certainly put NZ Minister Murray McCully, and his stance on the World Cup, on the spot for this would be a very big sign of "progress" towards democratic rule, his requirement for lifting the travel ban on Fiji officials and players associated with the Bainimarama government, which will prevent their participation in the World Cup.

In the article, I attempt first to summarise the main features of the PER regulations. This is followed by recommendations for clarification and change on some aspects of their application, and a number of  recommendation I hope go some way to meet the concerns of all parties.

The main elements of PER

The Regulations comprise 17 pages of restrictions, powers and procedures. The restrictive contents fall into three broad groups:

1. Restrictions that may be placed on the usual rights of meetings and assembly, whether public or private;
2. Restrictions on the possession and carrying of arms, wearing uniforms or insignia deemed likely to disturb public order, and acts calculated or likely to cause mutiny, sedition or disaffection in the military, police and prison services; and
3. Restrictions on broadcasting and publications, where the power to restrict lies with the Permanent Secretary of Information that will be discussed after considering the role of the police and military.

PER and the powers of the Police and Military

The Regulations give senior police and military officers (their roles are almost interchangeable) the powers to act in a number of areas that may affect public order, with the military to act "at the request of, or with the concurrence of, the Controller of Prisons or the Commissioner of Police as the case may be to perform all or any of the duties and functions of a prisons officer or police officer..“

The police and military may "prohibit absolutely or subject to such conditions as he or she may think fit any procession, meeting or assembly in any place, or building whether public or private notwithstanding the fact that a permit for such a procession, meeting or assembly may have already been granted." They may temporarily close roads and deny people entry to or exit from "protected" areas. And they may arrest, with "reasonable force," people considered likely to breach, or to have breached, the regulations, and detain them for up to 24 hours, and a further 48 hours, and again for up to seven days, on the direction of a magistrate or police officer. The person detained is "deemed to be in lawful custody and may be detained in any prison or any police station or in any other place authorized generally or specially by the Commissioner of Police or the Officer Commanding."

Where cases are brought to court under the Regulations, the police, the military and persons assisting them are not "liable in criminal or civil proceedings for having by the use of such force caused harm or death to any person;" cases may be heard in camera; and persons found guilty may be fined up to $1,000 or imprisoned up to two years or to both fine and imprisonment.

PER and the Media

PER gives the Permanent Secretary powers to prohibit any broadcast or publication that she believes may give rise to disorder, breaches of the peace, public disaffection or alarm, or undermine the Government. Material for publication or broadcast has to be submitted to the Permanent Secretary prior to publication, and those failing to do so may be ordered by the Commissioner of Police or Officer Commanding upon advice from the Permanent Secretary for Information to cease all activities and operations.

Overall  recommendation on PER

Three weeks ago I thought it realistic to expect government to totally lift PER. Now, with Ratu Tevita's defection giving fresh heart to the so called pro-democracy movement and obdurate restatements by Australia and New Zealand, I am less confident. But I do think Government could be persuaded to make changes to and lift some of its provisions and procedures. Why? Because there are good reasons for doing so. For this reason, I think the constituent parts of PER need to be viewed — and reviewed by government—separately.

Recommended changes to Procedures

The areas that have produced the most concern are (1) the overlapping authorities of the police and military, and the dominance of the military in this relationship; (2) the military detention of civilians for breaching PER,  the withdrawal of normal detention rights for those detained, and their detention at the military barracks; and (3) the protection or immunity of police and military against charges of abuse of power. A further concern, related to immunity, is that cases before the court may be held in camera.

If government were to address these concerns — which I think it should— attention could be given to a clearer boundary between police and military authority, with military involvement restricted to only the more serious cases, or specific events when police resources are overtaxed. The normal rights enjoyed by detainees, such as the right to inform kin of their whereabouts and to have a lawyer present, should be restored, and all detentions should occur at police stations. There should be no instances of physical or mental abuse. Police and military officers should know that they are personally and collectively responsible for their actions and in no case should they be given 'blanket' immunity. All citizens should have the right to contest in court their detention, arrest and treatment while in detention, and only in exceptional cases should court cases be heard in camera. A clear an unequivocal statement by government on these issues would do much for public confidence.

Recommended Changes on Restrictions

Group 1 Restrictions on meetings and assembly. Government knows who and which organizations are most likely to attempt to destabilise government and create discord and discontent. The restrictions should therefore be limited to these people and organizations. They should not apply to registered educational, business, trade union, sports, civil society or religious organisations unless there is known  cause.

Government also knows the types of meetings and assemblies that are the most likely to disturb public order. Again, the restrictions should apply to them, and not others.

Most public meetings should be permitted so long as they are open to all, and there should be no prohibitions against private meetings unless they are attended by those known likely to create discord and discontent. All rallies and marches, however, should require permits issued by the police.

Group 2. Direct threats to public order. This group of restrictions deal with specific acts, other than meetings, that may threaten public order such as the possession of arms, and acts calculated and likely to cause mutiny, sedition or disaffection in the military, police and prison services. These provisions should be retained if they are not already covered by the Crimes Decree.

Part 3 Restrictions on broadcasting and publications. This is the most noticeable of the restrictions and the one that most impedes intelligent discourse and dialogue. If genuine dialogue is to take place on the constitutional and electoral reforms planned to start next year (in not much more than six months time!) media censorship will have to be lifted. This, of course, does not mean the media will be able to publish anything it wishes. It will be restricted by the normal laws of libel and slander and the provisions of the Media Decree. Fiji's media has learnt a very hard lesson over the past two years and its publishers and editors are not likely to take these lessons lightly.

The special case of the media

As I write this a Citizens Constitutional Forum press release has “welcomed revelations that News Directors and Chief Editors of various News agencies are making a collective effort to engage government in dialogue on removing section 16 of the Public Emergency Regulations.” CCF's Rev. Akuila Yabaki acknowledges that the PER deals with wider issues relating to the states concerns regarding national security but argues:

“Section 16 of the PER unnecessarily duplicates the provisions of Section 80 of the Media Decree which effectively binds media outlets from refraining from broadcasting or publishing any information which may give rise to public disorder. As such, removing section 16 of the PER would be a prudent move and compel media outlets to practise self censorship and adhere to the requirements under the code of conduct” .

I fully endorse these views but would go a step further. Government should do more than leave news and discussion initiatives to the media. To coin a phase I do not particularly like: it should be pro-active. It should actively promote the issues it wishes to have discussed.

Ways and means

It is not for me to suggest the ways and mean. Others are far better informed on possibilities. The channels and outlets are numerous. But a start could, for example, be made to solicit the views of responsible people knowledgeable on these issues and encourage their wider circulation by the media. Government could increase its support for the political education work being carried out by Civil Society Organisations such as Dialogue Fiji and Pacific Dialogue. It could encourage groups such as the Chambers of Commerce, CCF and, of course, the universities, to stage forums to restart dialogue, and make available qualified government spokesman to join them. It could ask TV to start a live (or only slightly delayed) five minute nightly Questions and Answers programme. Questions of particular concerns to itaukei could be addressed on the radio in Fijian language programmes, and similarly on Indo-Fijian concerns in their vernacular media. All sections of the public, including young people, could be targeted in appropriate ways. Everyone should feel they have been involved.

It is not that dialogue is not taking place. It is. But Fiji needs to resound with informed comment on critical issues. It should resound louder than church bells and calls to prayer, louder than the cheers at a football match, and the people —all of the people— need to hear these comments, and comment themselves.

These initiatives could be mounted jointly by the Ministry of Information, the Strategic Framework for Change Committee and the appropriate ministries and departments.

In summary

I urge Government to lift PER completely in the belief that other regulations —the Crimes Decree and the Media Decree— are sufficient to address their concerns about public order. Failing this, I urge them to consider the recommendations made in this article, namely, to increase the authority of the police vis-a-vis the military; revisit detention practices and 'blanket' immunity; selectively and progressively lift restrictions on meetings and assembly; and lift the PER restrictions on the media.

Why? Because these measures —and particularly the lifting of media restrictions— would win them immeasurable support and confound their opponents.