More on the Public Order Ammendment Decree, and the A-G's Response to the ACTU

New Fiji Rules Put Lid on Freedom is the heading used in a teletext item on Friday. The item continued: "The Fiji military regime is tightneing its grip on power despite lifting emergency regulations only days ago.  The military dictatorship has given itself huge powers under a public order decree which cannot be legally challenged. Under the new rules, anyone who takes part in what is considered a meeting with no permit — even if it is in a private home — faces up to five years in prison."

Whoever wrote this has either not read the new public order decree or is so disposed to criticize Fiji that they have allowed their prior opinions to colour their opinions, and their opinions to intrude on what purports to be a factual report. Although, I confess, the part of the new decree that appears to deny appeals to the court, is a source of concern.

What the overseas media ignores is that most provisions in the recent decree are not new.  Almost all the powers exercisable under the new decree can be traced back to the  Public Order Act Cap 20 (Act No. 19 of 1976, and Ordinance 15 of 1969).*

This early Act defined a meeting as an assembly of three or more persons meeting for a common purpose to discuss matters of public interest or for the purpose of the expression of views on such matters”. All such meetings required permits. By definition, a “meeting” is not a school or university, a religious gathering or a dinner party, or afternoon tea at a friend’s house.

Under the earlier Public order Act before the amendments, the appropriate authority was the District Officer. He had to issue a permit unless “satisfied for good reason that such a meeting or procession is likely to prejudice the maintenance of peace or good order”.  Marriage ceremonies, funerals, sports, social events, private entertainment, religious gatherings, or charitable events carried out with the permission of the local authority where the event was to take place, were exempt from the requirement of applying for a permit. These provisions remain. The only difference is that permit applications are to be made to the police and not the District Officer, and that meetings held in contravention of the Decree carry smaller penalties than formerly.

Other offences created by the 1969 Act were; Disturbance in a public place ( 3 months imprisonment and/or $100 fine);  Malicious acts defined as “maliciously fabricating or knowingly spreading abroad or publishing, whether by writing or word of mouth, any false news or false report tending to create or foster public alarm, public anxiety or disaffection or to result in the detriment of the public or..... Acting in a manner prejudicial to the public safety or to the peace and good order in any part of Fiji..... Or endeavour[ing] to disturb the public peace by inciting hatred or contempt of any class of person...”; and incitement to violence and disobedience of the law. This last offence was committed when a person without lawful excuse (the burden of proof being on him/her on this issue) utters, spreads or publishes any words or does any act or thing which is calculated to bring death or physical injury to any person or to any class, community or body of persons, or to lead to the damage or destruction of any property, or to prevent the execution of any written law by violence or any other unlawful means. The maximum sentence was 2 years imprisonment and/or a fine of $1000. This offence was probably the closest offence to terrorism that existed in Fiji’s statutes prior to the Public Order Amendment Decree.

Section 17 of the Public Order Act said that any person, who by words, spoken or written and intended to be heard or read, spread any report or made any statement which was likely to incite racial hatred of any race or community, or to promote feelings of enmity or ill-will between different races or communities, or to prejudice the public peace, or makes intimidating or threatening statements in relation to a community which is likely to spread fear, alarm or insecurity amongst members of that community, or spreads a report or makes a statement which incites people to violence, or counsels people to disobey the law or any lawful order given by the police, prison officers, or  members of the armed forces, commits an offence.

These provisions have been a part of Fiji law since 1969, and for some provisions, since 1976.

In summary, under the Act, a permit was always required for a meeting unless the meeting was specifically exempt. A gathering in a house to celebrate Christmas was not a “meeting” under the Act. Nor was a gathering at the temple church or mosque. Hate speeches were an offence. ‘Terrorist’ acts were offences, although acts and speeches had to be “calculated” to bring about death, destruction, damage, or to prevent the execution of any law.

In other words, if an organisation has previously acted in breach of a section 8 permit, or has been refused a permit, or which has previously organised a meeting which has prejudiced public safety and order, or has made hate speeches or has tried to damage Fiji’s economy, a permit can be refused.

The main difference between the earlier and later Public Order Acts is in section 21 of the latter that reads: "no court, tribunal, commission or other adjudicating authority may hear a challenge to the validity, legality or propriety of any decision made under the Public Order Act by the Commissioner of Police, Divisional Police Commander or Minister or any public official. Where any such claim is brought, the file will be taken to the Chief Registrar for termination of the proceedings." It is this section where criticism should be focused, not on the meeting and other provisions that are little changed  since 1969. It is also important to watch the use of the Media Decree. Media censorship ceased with the lifting of the Public Emergency Regulations budt the Media Decree, if wrongly applied, could still be used to limit media freedom. 

* Most of the foregoing is based on Former Judge Nazhat Shameem's article published on Tuesday.

The A-G's statement below may help to clarify matters further: 

Fijian Attorney-General Aiyaz Sayed-Khaiyum released the following response today to the Australian Council of Trade Unions:
“The latest missive from Australian Council of Trade Unions (ACTU) President Ged Kearney regarding Fiji’s Public Order (Amendment) Decree betrays the organization’s desperation to score self-serving points against Fiji as we move positively into the future—as it is obvious she has not even read the provision or understand what is going on in Fiji. Her letter is rife with even the most basic inaccuracies. 

“She writes that the Fijian government has given itself the abilities of “detention without a warrant…for 16 days.” False. In Fiji, a person can be detained for a maximum of 48 hours, or up to 14 days if warranted and only after the Police Commissioner has convinced the Minister responsible. Further, no one is to be detained beyond 14 days without allowance to go before the court, and none of these provisions apply to any crimes outside those outlined in the Public Order Act, such as robbery.  (My underlining. Ed.)

“Indeed, Fiji’s laws pale in comparison to other countries, many of which allow both preventative and indefinite detention in certain circumstances without court appearances. And, unlike Australia, Fiji does not allow tracking devices to be installed on individuals in any situation. Even the United States, under the National Defense Authorization Act, allows the military to indefinitely detain terror suspects, including American citizens arrested in the U.S., without charge. 

“Fiji does not come close to going as far as other countries, yet the ACTU views Fiji in isolation, neglecting both context and historical perspective.  

“The Bainimarama Government has approached the Public Order (Amendment) Decree with the utmost transparency and accountability, as it will continue to along with all matters on its path to elections in 2014. 
“Just this week, the Fijian Police Commissioner proactively invited the leadership of Fijian unions along with other civil society groups to an open discussion about the repeal of the emergency restrictions and to establish an ongoing dialogue. Many members of the Fijian unions spoke publicly about the positive changes occurring.  
“Pramod Rae from the Fiji Bank and Finance Sector Employees Union stated in a television interview: ‘We are very grateful to the Commissioner for his initiative,’ a sentiment echoed by Agni Deo Singh of the Fiji Teachers Union. Attar Singh from FICTU added also in a televised interview: ‘[The police] appreciate that we have an eligible role to play and…they will help facilitate our activities.’ Union members were also provided personal contact information of high-positioned officers to ensure an open-door policy.  

“Through incendiary and false claims, the ACTU has proven again how out-of-touch it is with reality, and has confirmed that its interests are only self-serving.”

Question:  The A-G did not mention that Section 21 of the Decree reads that "no court, tribunal, commission or other adjudicating authority may hear a challenge to the validity, legality or propriety of any decision made under the Public Order Act by the Commissioner of Police, Divisional Police Commander or Minister or any public official. Where any such claim is brought, the file will be taken to the Chief Registrar for termination of the proceedings."   How does he reconcile this situation with his statement about detentions and appeals to the court that I have underlined above?

Naz informs me: "The court he is referring to is the magistrates court where the accused has to be presented within 14 days (if the Minister has agreed to detention for up to 14 days) in order to file the charge and set a trial date. If there is no charge filed, the accused will be released as soon as the 14 days are up. In other words,  if there is no charge, there can be no detention after a maximum of 48 hours or 14 days with Ministerial sanction.  


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