A Rebuff to the Critics

There's an old saying: sometimes I sit and think; other times I just sit. And so I may well do in the aftermath of publishing Nazhat Shameem's analysis of the Public Order Decree. For what is the point of thinking when some of those you write for stubbornly refuse to use their own thinking facilities.

No. Naz did not write the decree, as some claimed.  No. She did not express her opinions on the decree or indicate that she agreed with its provisions.   She wrote a completely objective explanation of the decree, and how it compares with earlier legislation,  for the benefit of readers of this blog.  Why?  Because that is what I asked her to do.

The decree was issued last Friday, one day before lifting of the PER. I was reluctant to comment until I had read the decree and obtained a lawyer's interpretation of its provisions. (Such reluctance, I am sorry to say, was not shared by others who rushed in to make their views known, without even having read the decree.) Naz replied to me on Sunday saying I would have to wait until Monday because she had not seen the decree. 

She told me: "This article was written to explain the law, not to defend it. I have done what any lawyer in Fiji should be able to do, and could do. Knowing what the law says and how it has changed, empowers people. Ignorance of the law disempowers people."

But this is not what her detractors claim. One threatened violence against her person when his people are returned to power. Others said she approved of the decree. I do not know how they could possibly have arrived at this conclusion from reading the article. No personal opinion is expressed. She writes: "I did not express my opinion of the Decree deliberately. It was supposed to be a factual analysis and my opinion would have diminished its role of purely informing."

She did, however, point out that many provisions, including the need to obtain a permit to hold a meeting, existed before Bainimarama assumed power, and that most provisions in the Crimes Decree are exactly the same as under the old Penal Code.  What seems new is the power given to the police to stop meetings even if a permit was obtained from the District Officer, and powers of arrest for suspected terrorism. The sedition offences in the Crimes Decree are exactly as they were under the Penal Code, and offences of treason do no more than set out the common law definition of treason as was defined earlier by the courts.

These matters should be of no great concern if they are interpreted sensibly but this was also the case under the PER. Interpreted strictly, the need for institutions to obtain permits for meetings, for example, would have applied to all meetings but in many cases meetings went ahead without permits, and permits were easily obtained unless known opponents of the regime were involved. The permits were an irritant more than an obstacle. 

It is claimed the Public Order Decree is worse than the PER.  It is not. Even section 21 that prevents appeals to the court existed under the PER. And on this Naz, who some readers have painted as a Bainimarama toddy and coup apologist, is most critical.  She writes: "Section 21 is an indefensible provision intended to oust the jurisdiction of the courts. It is unfortunate, because the courts are the protectors of civil liberties and this section prevents citizens from challenging, e.g., an unlawful detention in court. We should be able to rely on the judiciary to balance liberty issues with public order concerns. In fact, if the judiciary was really controlled by the government as has been alleged, there would be no need for [this] ouster clause."

"Ouster clauses have been used by governments usually during the time of war or public disorder. They were used to oust the jurisdiction of the British courts during World War II in relation to decisions of the Home Secretary to detain foreign nationals, but they are now rare, and arguably in Fiji, unnecessary."

The lifting of the PER has not brought all we hoped for but its application over the next few weeks will give us a better idea of whether things have improved or are just the same.  The monitoring  of the media has now become the responsibility of the Media Decree which has many sound provisions, including a code of ethics for journalists and publishers. There are signs that the media is now prepared to publish views other than those of government but it is early days and only time will tell.

Meanwhile, overseas commentators such as former NZ Labour Party leader Phil Goff and NZ Law Society Jonathan Temm should desist in their attempts to frighten NZ tourists out of visiting Fiji.  Fiji is not less safe than it was under, and before, the PER, and no less safe  than most NZ cities. No tourists have ever been attacked or threatened as a result of the Coup. Jonathan should take up the offer to visit Fiji to see for himself. What he has to say may then have more credence.

The way forward is to latch onto improvements, however small they may seem to be, and build around the positives. Six years of constant negativism has done nothing to improve the situation in Fiji, and it never will. 

Comments

Anonymous said…
Croz
A coup is a coup. A junta is a junta. A dictatorship is dictatorship. Fiji under Bainimarama is all of these. All of the people who have assisted Bainimarama in ANY way, or have benefited in ANY way from the junta, will need to face the consequences. They can do so rationally and quitely or they can resist. It is their call. But they will be brought to justice and punished accordingly. History clearly indicates to all of us they will be better off not resisting the inevitable. Fiji WILL be free again and the rule of law WILL be reintroduced. So build a bridge and move on.
Open Your Eyes said…
Croz,
I am glad you feel the need to rebuff the critics as it keeps the debate going on longer. As you said you did not want to comment on the decree until you had a lawyer’s interpretation. The word here is interpretation. The lawyer you chose was Nazhat Shameem and she is very closely linked to the regime. The government is her biggest client whether directly or holding workshops for businesses to give her interpretation of the latest Government decree. Another lawyer with a different paymaster would have a different interpretation.

You say “It is claimed the Public Order Decree is worse than the PER. It is not”. Even if what is covered by the Public Order Decree is no worse than the PER it is worse a lot worse. The PER had to be renewed every 30 days. The Public Order decree is with us forever.

It is clearly the regime’s permanent replacement for PER. They may have couched it in language about terrorism and compared it with similar laws in other countries. However, those countries face real terrorists threats and most have suffered terrorist attacks. Fiji has not. The only terrot has excercised on this country has been carried out by the military. 5 times this country has experienced terrorism at the hands of the RFMF. Even 2000 would not have happened without the support of parts of the military. So the only anti terrorism decree needed in this country is one which controls the military.

The controls imposed by both PER and POA were there for one reason only and that is to control opposition to Frank and his cronies.

With regards to meetings you say “and permits were easily obtained unless known opponents of the regime were involved. The permits were an irritant more than an obstacle.” The whole point of the removal of PER was so that everyone could talk about constitutional reform. The opponents of the regime included. So if the same formula is used in granting meeting permits under the POA as in the PER the opponents will not be allowed to meet. So rather than just being an irritant it means there will be no true and open discussion on the constitution. That is a massive obstacle in moving Fiji forward.

Shameem says “In fact, if the judiciary was really controlled by the government as has been alleged, there would be no need for [this] ouster clause." Far from it. If you have a court case you will get publicity and if it is the authorities that are on trial then it is bad publicity for the regime. Far better for them not to have a trial in the first place.

The media decree is yet to be tested but the big worry I have is the trouble that the media can get into for publishing something that is not in the national interest. Who defines national interest? In all probability it will be a dictator who has made himself answerable to no one. So to be honest there will be no free and fair media.

Added to which it is a crime to say or write anything that can economically harm the country. So if I was to say to a potential investor not to put their money in Fiji because it is run by a dictator and the courts are suspect; does that mean I can be sent to prison.

You say “The way forward is to latch onto improvements, however small they may seem to be, and build around the positives. Six years of constant negativism has done nothing to improve the situation in Fiji, and it never will.”

The way forward is for people, institutions and governments to stop giving legitimacy to a dictator. The way forward is for everyone to realize that we are living under the rule of a dictator. The way forward is for everyone to realize that you never appease a dictator.
Walker Texas Ranger said…
We are in general not too hot on objective and purely rational thinking. We find it difficult even when evidence is right before our eyes that issues must be addressed. These issues (often related to Grand Larceny and Corruption) are frequently set aside.

More fool us!
Declare her hand said…
Croz
Perhaps to clear the confusion Nazhat Shameem needs to declare her hand? Does she or does she not support the military junta? Was she aware of any aspects of the coup planning prior to Dec 5 2006. Answering these questions might help her immensely into the future most would think?
If she does not answer it can only be assumed she had prior knowledge of the coup (treason) and supports the military junta?
Open Your Eyes said…
Croz,
Read this story on Raw Fiji News. Namosi indigenous landowners say NO MINING, SAVE OUR PARADISEIt written by NOELENE NABULIVOU.

Let us see if any of this finds its way into the mainstream Fijian Media. If it does then we will know controls are relaxing.

If it does not then we will know the Media is still under the control of the regime.
Hello said…
Croz,

I would like to propose some more practical tests to see if we are moving to a free and open society...

Would the media be able to print the now PM's promises to the nation when he he removed the elected government and a objective scorecard on those promises ?

Can a new political party now form ?

What if the one of the new politcal parties platforms was removing of RFMF personel from civil service and the scaling back of the size if the RFMF to reduce the risk of future coups ?

Could a public debate be held arguing the legality of the current government ?

If a journalist was to attribute some of the GDP decline of the last five years to the military coup would he be called up to barracks ?

Can the media print a article (or letter to the editor) calling for the PM to be charged with treason for his role in overthrowing the elected Qarase government ?
Ram Sami said…
Open your says:

Is it possible for you to get a lawyer of your choice and get him/her to set out out the provisions of this law in simple English?

I personally think Nazhat has a great job in putting in layman terms what can or cannot be done uner law.
Ram Sami said…
Anonymous @ 12:55am

You talk about Fiji being under rule of law.

What rule of law are you talking about? The sort we had in April-May 1987, which when it no longer suited those accustomed to the gravy train, was merely put aside at the barrel of the gun??

More importantly, what was your position then ??
Please don't try to fool me said…
Sorry who says that Fiji knows no terrorism except at the hands of the military? Wasn't what happened in Parliament in 2000 terrorism according tovany definition of the word? When thugs terrorize the civilian population of Fiji for political reasons that is terrorism. And all was to be forgiven and legalized by Qarase! By ignoring that historical fact Anonymous gives himself away as a nationalist whi wants the thugs to rule this country. When he does he can kill all the opponents. The commitment to democracy is a sham. It is really a commitment to nationalist racist and corrupt power. He is probably a lawyer who has lost government business since 2006.
Navosavakadua said…
Croz
I'm pleased to learn that Nazhat Shameem did not, as I had speculated (not claimed), write the POAA decree. As I said, I did not think the worst excesses of this piece of legislation would be consistent with any principles that she has in the past supported. I am pleased to see her confirm it. Did I miss it in her analysis the other day, or was it not there? I would appreciate your confirmation that my eyesight is not the problem.

But what I'm interested in Croz is YOUR view. Do you think it is right to deny access to the courts for people who believe that police have exceeded their powers? Nazhat Shameem doesn't think so. What do you say?
Bated breath said…
Can open your eyes give us a different interpretation of the Decree? How does he know that Shameem has been paid by the government? Does he work for FIRCA? Or has he been tapping telephones or hacking email accounts to find this information?
Short memory said…
Where was Open Your Eyes when my family was terrorized in 2000 and when the didn't want to hear our cases? We were in a refugee camp for 8 weeks and now they are saying there was no terror bin Fiji? Our women were violated in the name of politics and there was no terrorism in Fiji? He must have been part of the terror if he can be so blind tom our suffering. No one helped us then.If they get power again no one will be safe here. Terror is just under the surface of our society waiting forva cjhance to happen again. If it does the lawyers will all be laughing and enjoying the fun. Only the poor will suffer. The laws should be harsher on terrorists.
please said…
They came at night and they tried to cover their faces but we knew them because we had grown up with them. They turned off our generator so the lights went off. They said that we were Indians and were taking the best away from them. They beat us up and threw our small child against the wall because he was crying. They stole everything and said they would burn down our house if we came back to our village. They took our cows. We hid in the bush all night. no one came to help us. Then we saw the police van come and the police took our cows. They said in Fijian that the cows were being taken to George Speight in Parliament. We had no where to go. Even the police were part of it. Tell me Open Your Eyes, is that terrorism or not? Do you condemn what happened to us or will you join in the next time it happens after your people get power again?
Kahukiwa said…
Croz,

Given that an enquiry has just been announced into the conduct of a phone poll - yes, a phone poll of all things - that allegedly failed to deliver unto Great Leader the exaltation he expects, I am left wondering if I am the only sane person left in the room.

This blog has been notable in that it entertains views from all sides and certainly lacks some of the hysteria displayed on other blogs. And you should be credited with that. You still insist on blaming Qarase and foreign media for all of Fijis' woes but you can be forgiven for that. But to even the most casual observer the developing story about the Fiji TV poll does beg the question that has to be asked of this motley regimes supporters - ARE YOU SERIOUS!!??
Anonymous said…
Yes there was terroism in 2000. Equally there was terroism in 2006 (committed by the military as opposed to civillians). And yes there was terroism by Rabuka in 1987.
Croz Walsh said…
Answers to the above ...
@ Anon... A most unhelpful contribution.
@ Open your eyes 1 ... Your opinions respected. They provide a useful platform for discussion and a means of monitoring what now goes on.
@ Walker ... Agree. Only too evident in the black or white arguments of some readers. This is illustrated in the next comment by ...
@ Declare her hand ... Your anonymous threat is cowardly and provides a warning should people like you, God forbid, ever have power again. Most things in life cannot be seen in blacks or whites. Thinking people often see shades of grey. Nazhat and I do not need to take sides. We try to see the 'good' and 'bad' in situations before assessing their relative importance.
@ Open your eyes 2 ... Agree. Some differing views are beginning to appear. I hope it continues.
@ Hello again ... I doubt it at this time. The situation is too delicate. But I don't think anything is to be gained by publishing deliberately provocative and confrontational statements disguised as questions. That has been part of the problem in Fiji's past politics. The country now needs to move forward, not back. Concentrate on what you would like to see in the Constitutional reforms.
@ Ram Sami ... Vinaka for the suggestion. I'll be publshing more as the situation becomes clearer. How the law is applied is as important as what it says. Many laws remain unused unless a situation demands it.
@ Please ... I have some sympathy with your position. The past has its place but I think it important we all focus on questions about the future. What issues need to be addressed in the new Constitution?
@ Navosavakadua ... I think Nazhat and I are in agreement on the consequences of the lifting of PER. We welcome some things. We think there should be a right to appeai to the courts. And we're crossing our fingers on how things will work out.
@ Baited breath ... The question is addressed to Open your Eyes, but as far as I know the only payment Nazhat receives from Government is when she runs workshops, e.g., on the meaning or this or that law for public servants.
@ Short memory ... This is a part of Fiji history that few know about. I'd welcome further details of your family's experience, for publication.
Fun day said…
@Declare her hand
I think a lot of people should do a bit of declaring. Like which law firms got government business under Qarase and Bale. And how much? And what for? And how many lawyers supported the 2000 coup? How many went up to Parliament " to drink grog" with George? Which journalists supported the 2000 coup? What was the Fiji Times role in the coup? And was there Murdoch type telephone tapping by the Times in those days?
While we are at it, can all the NGOs audit their accounts so the public can see who is funding which NGO?
Can our "friendly" neighbors do a bit of declaring too? Are they still tapping our phones? This declaring business could be fun! And don't get started on 1987!
Short memory said…
Croz
I will never forget. I still dream about it. I will send you the statement I gave police but I am still afraid so I hope you can suppress my name. I tried to tell the community police but they are not interested. They said I should move forward. Our case was dismissed by the magistrate. But dpp appealed and Judge Shameem ordered a new trial. She said the magistrate was bias. That's why they hate her.
Croz Walsh said…
@ Fun day ... These are important questions. Why don't you help to provide the answers.

@ Short memory ... Your identity will be protected, I promise. You may send your story to the blog or directly to me at croz.walsh@xtra.co.nz
Declare her hand said…
Croz
If you are speaking for shameem, and she refuses to answer the question then she has implicated herself. And if she doesn't like the heat she can get out of the farking kitchen - as it is going to get much hotter.
Oh, and your side have the guns, and nobody gives a rat's arse, so you and your thugs are the cowards - and will squeal like mongoose when the tide is turned. cowards and hypocrites! like Gaddafi.
Take a chill pill said…
@ Declare her Hand
Temper temper! Were you caught on the wrong side of Parliament in 2000? Or was it Muanaweni?
Anonymous said…
Well you had the guns and the power ones when you rode on the back of the Fijian army and created hell for simple, law abiding citizens and now the guns are turned against you and you are squealing and hoping to repossess the guns so that bandits like you can again hold Fiji to ransom! You and your cahoots ran amok and looted Suva and you derived courage, knowing that the Army was an ally! It's not the same now, the game plan is different and you don't like it. Tough luck!
Open Your Eyes said…
@Short Memory

I am sorry if my comment awoke painful memories and I did not say there had not been terror in Fiji. What I said was “5 times this country has experienced terrorism at the hands of the RFMF. Even 2000 would not have happened without the support of parts of the military.”

You may not have been attacked by the military but you would never have been attacked if the military had all stood firm as one and supported the Government of the day. Without the help of RFMF there would not have been guns in parliament and in the hands of civilians.

If the RFMF did not have this massive split it could have been used to disperse the rioters. Instead because nobody knew who they could trust it stood idly by whilst Suva burnt.

Possibly things might have been different if the Commander had not jetted off an one of his beloved overseas jaunts and remained in Fiji as requested by the President of the day.

Still the terror in this country continues at the hands of the RFMF. The beatings continue, unlawful detentions at QEB continue, even deaths at QEB continue.

It is the irony that the Commander of the organization that has terrorized Fiji since 1987 is the man who says we need stronger anti terror laws.

If we were like Samoa and did not have a military we would never have had terrorism in Fiji.
SOE said…
No one is going to "get out of any f.......g kitchen". Terrorism took place within Fiji on 19 May 2000. How do we know? Because we were there when it kicked in. A phone call at precisely 10.45am from Cummings Street, Suva. Taking hostages for 56 days at the point of a gun in Fiji's Parliament is terrorism in anyone's language, in any country around the globe you might care to name. Depriving people of their homes through arson, killing their cattle and poultry, carting them away to feed a Mob.....is terrorism. Forcing people to sleep in the jungle when they have nowhere to turn for two days and nights..... facing rape and further violence is terrorism.

Make no mistake about this. TERRORISM must be recognised by Law and dealt with as other countries deal with it: proscribe it with penalties which fit the Crime Against Humanity. A lifetime in prison to reflect? Too comfortable a fate for the average terrorist: or Home Invader?

THE TRUTH AND COMPENSATION COMMISSION - Former Police Commissioner Andrew Hughes was asked in writing for one. That is history. But the witnesses are still here. Many will return. Our recollections and conversations are still intact: like yesterday in fact. A day of reckoning is coming. In France, the Renault Family have found this to be so - almost seventy years later!
Walker Texas Ranger said…
@ Declare her hand.......

You are asking questions which surely come well down the pecking order when Crimes Against Humanity and Terrorism are on the menu?

Terrorism is at the pinnacle of crime. We need to OPEN OUR EYES to terror and not turn our backs on it: as so many of us have done since May 19 2000 - even Police Commissioners and Directors of Public Prosecutions. Too many of us have dined with terrorists, drunk and 'talanoa'd ' with terrorists. Thought little of it and we sat by when witnesses were called for. Immersed ourselves in a comfortable Conspiracy of Silence. So, we are at a place where we have the society we have chosen and deserve: the 'Impunity Reigns Society'? Who will take that to task? What courageous proposals are coming forward? The rewards of terror are a fractured and fearful society which feeds on itself. Sound and seem familiar?
fun day said…
@ Declare her hand
No sorry you said 'the only terror done in this country was by the military". Lets not deny what is recorded above.If it wasn't for the military in 2000 we would be another Rwanda.We haven't forgotten the chiefly instigated mutiny either where innocent soldiers lost their lives because they were used by civilian leaders. And which killings at the camp are we talking about? everyone killed in custody has had their day in court and people were convicted, soldiers and policemen. so lets not doctor the facts eh? you lawyers are good at that.which deaths are still continuing?
ISLANDS IN THE STREAM said…
@ A Coup is a coup, a junta is a junta, a dictatorship is a dictatorship....... posted Anonymously (of course)

This sort of thing used to be referred to as 'Stating the Obvious'. It was never permitted in our family: Why? Sloppy thinking; repetive thinking; unimaginative thinking; uncreative thinking; uneducated,incurious, unsmart, not-fast but slow thinking and it leads to no useful outcome.

History shows us that. Current Affairs show it also. It is the reality on the ground that must be handled. It takes much more than this to build a democracy. A great deal more. Where is the Principle of Duty? The entire range of thought which underlies the protection of the minorities and vulnerable in society? A deterrence to the Tyranny of the Majority. Where is 'Noblesse Oblige' (The Duty of those nobly born to sustain their people morally and materially)? 'Dieu et Mon Droit' (God and My Right). The years, hundreds of years, of evolution towards the development of Jurisprudence throughout the world? The very foundation of our law. The bedrock upon which our rights derived from Magna Carta are invested: although some determined to deprive us of them in 1987). Not just for ourselves within Fiji but for Americans (within their Constitution which they awarded themselves in 1787) Canadians, New Zealanders and the Australians and numerous fortunate others.

You want a battle on the ground of reasonable and intelligent thought? You'll have one. Face to face, eyeball to eyeball. But it will always come back to how the Tactics of Terror were unleashed upon the innocent and upon elected Parliamentarians in Fiji. No dates because it has happened MORE than once.

"The Americans are the first people whom Heaven has favoured with an opportunity of deliberating upon, and choosing, the forms of government under which they shall live. All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection, which, though beyond our reach, may nevertheless be approached under the guidance of reason and experience". (John Jay 1777)

"Let us raise a standard to which the wise and honest can repair. The event is in the hand of God".

(George Washington 1787)

"As in the Arts and Sciences the first foundation is of more consequence than all the improvements afterwards, so in kingdoms, the first foundation or plantation is of more dignity and merit than all that followeth".

Francis Bacon (1561 - 1626)



Quotations from the Longman History of the United States of America - Hugh Brogan
and dedicated to "All my pupils - Past, Present and to Come".
An End to Impunity for murder? said…
Referring to a fractured and fearful society - @ WTR

Just yesterday, we received good information that a person allegedly responsible for the murder of a British Tourist to Fiji was imprisoned for a totally unrelated crime: receiving a stolen laptop computer. His name came up in the Fiji Times. Now this is a truly important advance. Because we now believe that this person has allegedly continued his criminal life unabated over the past seven years. Had the press not reported the name, we might never have taken instant action. An investigation is required immediately and the present British HC should take a direct interest. Thank you Fiji Times. More of the same!
Forward March said…
@ Declare her hand

How will finger pointing help us all to move forward ? How can black and white statements help ? Should we not all try and be more mature and reasonable, weigh the pros and cons and promote a middle ground to ensure a greater sense of safety and security for as many adults and children as possible ? Point scoring is no longer smart. Nation building is.Come on Team Fiji. Let's cut the crap and be creative and positive. The lives of our children and grandchildren are at stake.Go Fiji Go!
sara'ssista said…
Let's all move forward by holding people accountable for their actions and support for the military regime. Absolutly lets move forward and plan, but the idea of a amnesty is anathema to this without a truth and reconsiliation commission or some gaolings.

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