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.