Fijilive: Malani files review on alleged AG bombing case:
April 10, 2021

The woman who accused Attorney General Aiyaz Sayed-Khaiyum of being involved in two bombings in 1987 has filed an application with High Court for a judicial review. Veronica Malani had lodged the application of judicial review on Wednesday in Suva against the Director of Public Prosecutions.

She said she was now waiting for confirmation on a court date next week. In January, the public prosecutor dismissed the case after a six-month police investigation couldn’t find ‘credible evidence’ to press charges. Director of Public Prosecution Christopher Pryde had said there was insufficient evidence to support any criminal charges laid against the Attorney General.

“Following a review of the police docket, it is our opinion that there is insufficient credible or reliable evidence to support any criminal charges being laid against the Attorney General.

“Therefore, the docket has been returned to police with the instruction not to charge and no further action is required,” Pryde had said.

Malani said she was disappointed by Pryde’s decision not to lay charges.

“The scales of justice have now been tipped and ordinary citizens like me are severely suffering from access to justice and basic human rights,” she said.

She, her father, and brother alleged that their family was a direct target of two politically motivated bombing attacks involving Sayed-Khaiyum, during the height of the 1987 coups.

It is alleged that as a result, Malani’s mother suffered serious injuries, and a bystander died during one of the attacks.

In their police statements, Malani and Ratu Benedito, who were 14 and 13 years old at the time respectively, claimed that they had identified Sayed-Khaiyum as the attacker.

Police had completed their initial investigations and sent the evidence to the DPP’s office on 13 November last year.

The 2020 report on human rights in Fiji issued by the US Department of State is perfunctory, scant in its interpretation and deconstruction of the law, saturated with generalisations and selective in its treatment of facts.

While the report impugns independent institutions like the judiciary and those responsible for the protection, promotion and preservation of human rights, there was neither any consultations with the state and independent institutions including the Human Rights and Anti-Discrimination Commission in the formulation of this report nor any ethic of constructive engagement over the years, as far as the HRADC is concerned, in relation to human rights in Fiji.

This does not mean that Fiji does not have any human rights challenges. We certainly do.

They include but by no means limited to sexual and gender based violence , torture and brutality at the hands of law enforcement agencies, rights of arrested and detained persons, racial and religious intolerance and hate speech, the need for constructive discussions on the right to peaceful assembly and the imperatives of public order and national security, the existential threat of climate change and the advent of COVID-19 and its attendant human rights challenges, and the need to ensure that the national human rights institution is compliant with the Paris Principles but Fiji continues to subject itself to scrutiny both domestically and at the highest human rights forums internationally, the most recent being the third cycle of its Universal Periodic Review at the Human Rights Council in Geneva.

Curiously the US State Department Report does not even make a cursory reference to Fiji’s UPR almost giving an impression that there is no accountability for human rights violations in Fiji, nor does it document our human rights achievements.

The US human rights record is hardly worthy of emulation but Fiji does not occupy an indomitable moral plateau with the compulsion to ritualistically produce a report on them every year. Given that the US jealously guards the right to free expression, or so it putatively claims, I will exercise mine and point out some of their human rights failings and the reason I raise these are because ironically some of these human rights failings form the basis of the report on Fiji.

This is a country that until recently had turned its back on the Paris Climate Agreement, had withdrawn from the UN Human Rights Council, placed sanctions against the International Criminal Court and has yet to ratify all core international human rights instruments.

These are Conventions on the Elimination of All Forms of Discrimination Against Women, International Convention on the Protection, Convention on the Rights of the Child, International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of Persons with Disabilities, International Convention on the Protection of the Rights of All Migrant Workers, and Members of Their Families, International Convention for the Protection of All Persons from Enforced Disappearance, Rome Statute of the International Criminal Court.

It has yet to establish an independent national human rights institution.

At the third cycle of its UPR, member states called on the USA to establish a moratorium on the death penalty, to put an end to life without parole sentence for juveniles, an end to arbitrary and indefinite detention, illegal and secret detention facilities, overcrowding in prisons, Police violence, use of excessive force and torture, racial profiling by law enforcement agencies, killing of civilians in military operations, gun violence, racism, extremism, xenophobia and hate speech directed at immigrants and asylum seekers, the adoption of punitive measures such as the incarceration of migrants and separation of migrant children from their parents to deter irregular entry and retrogressive policies that inhibit comprehensive and universal access to voluntary sexual and reproductive health services.

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and immunity provisions in the Fijian Constitution

Just like the United States, Fiji is equally concerned with torture and other cruel, inhuman, or degrading treatment or punishment and we have acknowledged this at home and internationally and the need for accountability without impunity for acts of egregious violations of human rights.

The claims about carte blanche immunity extended to security forces, however, is a distortion of the law and a complete misrepresentation of section 157 of the Fijian Constitution giving an impression that this provision is still being invoked in present day cases of torture and brutality to exonerate security forces.

While granting immunity to the President, the Prime Minister and Cabinet Ministers, Republic of Fiji Military Forces, Fiji Police Force, Fiji Corrections Service, Judiciary, public service and any public office from any criminal prosecution and from any civil or other liability in any court, tribunal or commission, in any proceeding including any legal, military, disciplinary or professional proceedings and from any order or judgement of any court, tribunal or commission, as a result of any direct or indirect participation, appointment or involvement in the Government from 5 December 2006 to the date of the first sitting of first Parliament elected after the commencement of this Constitution, section 157 of the Fijian Constitution expressly states “provided however any such immunity shall not apply to any act or omission that constitutes an offence under sections 133 to 146, 148 to 236, 288 to 351, 356 to 361, 364 to 374, and 377 to 386 of the Crimes Decree 2009”.

Absence of an independent oversight mechanism for the security forces
Quoting approvingly from a 2016 Amnesty International report, the State Department claims that “there is no independent oversight mechanism for the security forces”, “the legal framework means that no investigation can be initiated or disciplinary action taken against a Police officer without the consent or approval of the Police commissioner”, “authorized investigations were usually conducted by the Internal Affairs Unit, which reports to the Police commissioner, who decides the outcome of the complaint” and “information about the number of complaints, investigatory findings, and disciplinary action taken is not publicly available”.

This claim is misleading about the work of independent institutions such as the Human Rights and Anti-Discrimination Commission that independently investigates such matters and the Office of the Director of Public Prosecutions which sanctions charges.

Here are some examples of cases of torture and brutality investigated by the HRADC independently against the Fiji Police Force and Fiji Corrections Service (refer to table on page 5)

It is also imperative to note that information about the number of complaints, investigatory findings, and disciplinary action taken is available to the public.

The Office of the Director of Public Prosecutions routinely releases statistics on serious crimes (sexual as well as non-sexual offences) on a monthly basis with cases and the outcome of the investigation resulting in charges.

This is available on their website and is also widely publicized by the mainstream media. Between 1 January to 31 December 2020, statistics from the ODPP show that a total of 20 Police officers were charged with assault causing actual bodily harm in the course of arrest or in custody while 4 officers from the Fiji Corrections Services were charged with murder and assault.
The ODPP also in their release make available the nature of these offences.

Some of the examples include: 
3 Police officers were charged with assault causing actual bodily harm, acts intended to cause grievous harm to a 27-year-old man. Also charged with conspiracy to defeat justice and aiding and abetting. They allegedly assaulted a suspect with a concrete block and threw boiling water at him in the Police station.
2 Police officers were charged with assault causing actual bodily harm to a 41-year-old man
5 Police officers were charged with acts intended to cause grievous harm, assault causing actual bodily harm, common assault, conspiracy to defeat justice and interference with witnesses. These officers were charged in relation to the Naqia Bridge case for assaulting and throwing a man off the bridge.
8 Police officers were charged with assault causing actual bodily harm, acts intended to cause grievous harm, aiding and abetting assault causing actual bodily harm, aiding and abetting acts intended to cause grievous harm, common assault, giving false statements on oath, conspiracy to defeat justice and interference with witnesses. These officers were charged in relation to an assault case of suspects at Tavua Police station.
4 corrections officers were charged with the murder and assault causing actual bodily harm and common assault of a prisoner at Natabua Corrections Centre.
2 Police officers were charged with assault causing actual bodily harm to two suspects in a drug case

The HRADC ‘s annual reports are also available on the Fiji Parliament website and specific cases investigated by the Commission are also widely publicised by the mainstream media. There is no secrecy about the manner in which allegations of torture and inhumane and degrading treatment are investigated and the outcomes of these investigations are made public.

While the report mentions NGOs and Red Cross, the State Department conveniently glosses over the fact that Visiting Justices and the Human Rights and Anti-Discrimination Commission have the powers and do visit places of detention.

Public Order Act and the power to detain suspected persons for up to 16 days

It is imperative to note that the amendments to the Public Order Act in 2017 was in response to the UN Security Council resolution which called on member states to strengthen their judicial, law enforcement and border control capacities and develop their capabilities to investigate the offence of terrorism and is in consonance with section 6(5) of the Fijian Constitution on the grounds of necessity.
The power to detain suspected persons for more than 48 hours and for a further 14 days is based on necessity. Section 17A (2), expressly provides that
“No person shall be detained under powers conferred by subsection (1) for a period exceeding 48 hours except with the authority of the Minister on whose directions such a person may be detained for a further period of 14 days if the Minister is satisfied that the necessary enquiries cannot be completed within 48 hours”.

Criticism of government as a crime of sedition and press freedom 
The assertion that “the law includes criticism of government in its definition of the crime of sedition” is again incorrect.
Section 66 (a) (b) (c) and (d) of the Crimes Act very clearly stipulates that an act, speech or publication is not seditious when it is done with the intention of showing that Government has erred in any of its measures; pointing out errors or defects in the Government or the Constitution, or to persuade Fijians to change the law by lawful means.

It precludes criticism of Government and legitimate acts of dissent from the offence. These provisions are integral in preserving citizens ability to exercise democratic dissent. Nor does the assertion that “the media law authorizes the government to censor all news stories before broadcast or publication” hold any credence.
If this was the case then media organisations that are openly critical of government would have all shut down by now. In the face of claims of “self-censorship”, the mainstream media continues to publish robust criticism of authorities and giving platform to dissenting and divergent views.

The justifiable limitations placed on freedom of speech, expression and publication under section 17 of the Fijian Constitution are consistent with international human rights law in particular Article 19 and 20 (2) of the ICCPR.

While expressing alarm at the Media Industry Development Act, the report fails to show how many media organisations were prosecuted under the Act, for which transgressions and whether the Media Tribunal which is independent of the Authority and presided by a high court judge has convened at all.

Judiciary subjected to intimidation
The unsubstantiated claim that “the constitution provides for an independent judiciary, but the judiciary was subject to intimidation”  is alarming and highly irresponsible and so is the claim that the “constitution and the law provide for a variety of restrictions on the jurisdictions of the courts” and warrants a prominent retraction if the State Department is unable to substantiate its use of the word “intimidation”.
Such generalisations, in my view, are an assault on judicial independence and impartiality. I draw the State Department’s attention to section 97 (1) (2) (3) (4) (5) (6) of the Fijian Constitution that guarantees judicial independence.
Furthermore, in relation to its observations on the jurisdictions of the court, I suggest the State Department also reads sections 98 (3) (4) (5) (6) (7) in relation to the Supreme Court, section 99 (3) in relation to the Court of Appeal and section 100 (3) (4) (5) (6) (7) with regard to the jurisdiction of the High Court and section 101 (2) with regard to the Magistrates Court of the Fijian Constitution.
The report fails to deconstruct the law to show how the purported restrictions on jurisdictions of the courts has effectively derailed the access and administration of justice. I find it equally curious that the State Department keeps making reference to “decrees” when “decrees” no longer exist.

Government human rights body, its independence and silence on politically sensitive human rights matters
The State Department erroneously refers to the Human Rights and Anti-Discrimination Commission as a “Government Human Rights Body”.
If the authors of the report could laboriously sift through the Fijian Constitution and adduce that the Constitution prohibits the Commission from investigating matters in relation to the 2006 coup and the abrogation of the 1997 Constitution, I fail to understand how they glossed over the fact that section 45 (7) of the Fijian constitution guarantees the independence of the institution from the state.
Nor did they make any effort to look at the powers of the Commission under section 12 of the Human Rights and Anti-Discrimination Commission Act. As documented in its Annual Reports and publicised by mainstream media, the Commission is able to independently dispense with its mandate including conducting investigations against the State.

This is evident in the various proceedings the Commission has instituted against the State. Alternative reports prepared by the Commission as well as submissions to parliamentary standing committees on existing and proposed laws attest to the Commission’s independence.

The Commission has expressed its views on a range of human rights issues that include: rights of arrested and detained persons, torture and brutality, use of force, on balancing the right to peaceful assembly against the imperatives of public order, on balancing rights and restrictions in the context of COVID-19 including curfews and lockdowns, discrimination on prohibited grounds, advocacy of hatred and the right to free speech, same sex marriage, sexual and gender based violence, human trafficking, business and human rights, rights of refugees and asylum seekers, rights of children and persons with disabilities, freedom of religion and the right to education, and most recently the deportation of the USP Vice-Chancellor.

There is no clarity as to what amounts to “politically sensitive’ human rights matters and what is deemed as typically taking government’s stance in public statements given that the Commission’s statements are premised on our domestic procedures and international human rights law.

How is speaking out against racism and communalism a pro-government agenda since it should be everyone’s concern? Why is the Commission’s call to strike a right balance between rights and restrictions whether it be about freedom of speech, expression and publication or freedom of assembly deliberately misconstrued as taking the side of government?

Contrary to the claims in the report, the Commission has been vociferous. Surely, if this report is premised on the observations of select media rather than a wide cross section of the mainstream media in Fiji, one would get an impression that the Commission is not independent.

Of course, the State Department does not acknowledge that it is not censorship but political bias that has plagued the possibility of accurate, balanced and fair reporting and this report is no exception.

Some examples of cases of torture and brutality investigated by the Human Rights and Anti-Discrimination Commission independently against the Fiji Police Force and Fiji Corrections Service

Fiji 2020 Human Rights Report: Freedoms of Peaceful Assembly and Association

The constitution provides for the freedoms of peaceful assembly and association; however, the government restricted these freedoms in some cases.

Freedom of Peaceful AssemblyThe constitution provides for freedom of peaceful assembly but allows the government to limit this right in the interests of national security, public safety, public order, public morality, public health, and the orderly conduct of elections. The constitution also allows the government to limit freedom of assembly to protect the rights of others and imposes restrictions on public officials’ rights to freedom of assembly.

The POA allows authorities to use whatever force necessary to prohibit or disperse public and private meetings after “due warning,” in order to preserve public order.

Although event organizers said authorities were sometimes very slow to issue permits, they granted permits for public rallies in support of the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community and the 16 Days of Activism against Domestic Violence Campaign. Authorities, however, denied permits for public-service unions and the political opposition to protest.

Executive members of the Fijian Teachers Association (FTA), an affiliate member of FTUC, claimed police harassed and threatened them with “further action” over plans to hold a march during an Asian Development Bank (ADB) summit to be hosted by Fiji from May 1-5, and also if they failed to turn up for meetings at the police office. The Ministry of Education also threatened teachers with further reprisals, including legal action, if they participated in a planned May 3 nationwide strike (see section 7, below).

On June 17, police detained the president of the Fiji National Farmers Union (NFU), Surendra Lal, for questioning regarding alleged incitement and threatening to disrupt the harvesting of sugar cane. After two days Lal was released without being charged. According to an NFU statement, the detention came when growers were protesting low cane payments, a low forecast price for sugar, and the imposition of cane-cartage weight restrictions for trucks, which the union claimed would significantly add to transport costs.

On October 8, police rejected a request from the opposition National Federation Party (NFP) for a permit to march in Suva on October 10, Fiji’s national day. The police claimed the party failed to fulfill filing requirements. The proposed march was to protest the delayed police investigation into an alleged assault on NFP President Pio Tikoduadua by Prime Minister Bainimarama on August 9 (see section 3, below).

Freedom of Association

The constitution provides for freedom of association but limits this right in the interests of national security, public order, and morality and also for the orderly conduct of elections. The government generally did not restrict membership in NGOs, professional associations, and other private organizations.

On May 2, police raided the FTUC’s headquarters without a warrant and confiscated documents, laptops, and other equipment belonging to the union.

Fijileaks: The 2021 Report next March will highlight the following - denial of march permit application to the FTUC

PREFACE:

I am honored to release the 45th annual Country Reports on Human Rights Practices and to reaffirm the United States’ commitment to placing human rights at the center of our foreign policy.  The cause of human rights, freedom, and dignity is close to the American heart. As President Biden emphasized, “We must start with diplomacy rooted in America’s most cherished democratic values: defending freedom, championing opportunity, upholding universal rights, respecting the rule of law, and treating every person with dignity.”  Transparency and accountability are integral to this process.  By documenting the status of human rights around the world each year, the U.S. Department of State provides objective and comprehensive information to Congress, civil society, academics, activists, and people everywhere – all of whom have roles to play in promoting human rights and accountability for rights abuses and violations.

The 2020 report reflects the unique challenges that nations had to confront as the COVID-19 virus spread throughout the world.  The pandemic impacted not only individuals’ health, but their abilities to safely enjoy their human rights and fundamental freedoms.  Some governments used the crisis as a pretext to restrict rights and consolidate authoritarian rule.  Other governments relied on democratic values and processes, including a free press, transparency, and accountability, to inform and protect their citizens.  Women and children faced heightened risk as the prevalence of gender-based and domestic violence increased due to lockdowns and the loss of traditional social protections. Other marginalized populations, including older persons, persons with disabilities, and LGBTQI+ persons, experienced particular vulnerability.

Human rights are interdependent, and the deprivation of one right can cause the broader fabric of a society to fray.  Despite potential risks to their health or threats of arrest or other repercussions, people around the world demanded that governments respect their human rights and inherent dignity.  From Hong Kong to Belarus, from Nigeria to Venezuela, people assembled in the streets. (Fijileaks: Except in Fiji where application to march peacefully have been consistently refused). They called for governmental protection of their human rights and fundamental freedoms, safeguards for free and fair elections, and an end to discrimination.

Too many people continued to suffer under brutal conditions in 2020.  In China, government authorities committed genocide against Uyghurs, who are predominantly Muslim, and crimes against humanity including imprisonment, torture, enforced sterilization, and persecution against Uyghurs and members of other religious and ethnic minority groups.  Assad’s atrocities against the people of Syria continued unabated, and this year marks ten years of their struggles to live in dignity and freedom. The war in Yemen has driven millions to extreme humanitarian need, preventing them from exercising many of their basic rights. The Russian government has targeted political dissidents and peaceful protestors, while official corruption remained rampant. The corruption of Nicolas Maduro increased the dire humanitarian crisis of the Venezuelan people.
In Nicaragua, the corrupt Ortega regime passed increasingly repressive laws that limit severely the ability of opposition political groups, civil society, and independent media to operate.  Meanwhile in Cuba, government restrictions continued to suppress the freedoms of expression, association, religion or belief, and movement.  State-sanctioned violence in Zimbabwe against civil society activists, labor leaders, and opposition members continued a culture of impunity, and LGBTQI+ persons continued to be vulnerable to violence, discrimination, and harassment due to criminalization and stigma associated with same-sex sexual conduct.  In Turkmenistan, citizens criticizing the government faced possible arrest for treason, and the whereabouts of more than 100 political prisoners remain unknown.

These and other ongoing rights abuses cause untold damage well beyond the borders of any single country; unchecked human rights abuses anywhere can contribute to a sense of impunity everywhere. That is precisely why this Administration has placed human rights front and center in its foreign policy. Recognizing that there is work to be done at home, we are also striving to live up to our highest ideals and principles and are committed to working toward a fairer and more just society in the United States.  We all have work to do, and we must use every tool available to foster a more peaceful and just world.

Antony J. Blinken
Secretary of State

Country Report Preparation

This report is submitted to the Congress by the Department of State pursuant to Sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961.  19 U.S.C. § 2464, 2467 also require that U.S. foreign and trade policy take into account countries’ human rights and worker rights performance and that country reports be submitted to the Congress on an annual basis.

This report includes documents on several countries that do not fall into the categories established by these statutes and thus are not covered by the congressional requirement.

The report addresses situations and events in calendar year 2020 only.

The Department of State prepared this report using information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations, jurists and legal experts, journalists, academics, labor activists, and published reports. U.S. diplomatic missions abroad prepared the initial drafts of the individual country reports.

Once the initial drafts of the individual country reports were completed by U.S. missions abroad, the Bureau of Democracy, Human Rights, and Labor (DRL), in cooperation with other Department of State offices with the relevant country and regional expertise, reviewed and edited the reports, drawing on its own sources of information as well as of the Department of Labor.  Bureau officers also consulted experts in the Department of State and elsewhere on worker rights, refugee issues, police and security issues, women’s issues, and legal matters, among many others. The guiding principles were that all information be reported objectively, thoroughly, and fairly.  DRL, working with other Department offices as necessary, also ensured that all reports followed the same methodology and conformed to standard format and structure.

Maguire said preliminary calculations by the ITF showed the seafarers had been paid as little as 75 cents per hour in recent months by Goundar for the hours they worked. At least one seafarer, a cook, had a take home pay of just 40 cents per hour. He was paid for just seven hours per week, despite working 98-hour weeks. Like many of Goundar’s workforce, he worked 14 hours a day, seven days a week.

The ITF estimates Goundar Shipping owes the seafarers collectively more than AUD $250,000 in unpaid wages.

“Goundar’s abusive tactics are not limited to taking passports – his illegal pay cuts kept these seafarers too poor to afford tickets home. They’re trapped there – working for a man they despise. And if they complain, his company sacks them and dumps them at the nearest port with absolutely nothing. They’re a million miles from home, with a Fijian government, which has so far failed to enforce their rights under the law,” said Maguire.

ITF working with Police investigation as new allegations revealed

On Tuesday the seafarers and their legal team met with officials from the Fiji’s immigration department and Human Rights Commission. For the first time, Fijian authorities confirmed that an active Police investigation has been launched into Goundar’s conduct.

It follows a months of the complaints being overlooked by Fijian officials. The seafarers had tipped off labour authorities in September 2020, and made official complaints with Police and the immigration in December 2020. When they received no response, another Police complaint was made on 5 January in the presence of the seafarers’ legal team. As recently as late February, Fijian government officials were denying that they had received complaints.

The ITF this week sent a letter to Permanent Secretary of Prime Minister Voreqe Bainimarama’s office detailing new allegations against Goundar Shipping that have been uncovered in recent days.

The ITF says that documents and testimonies indicate Goundar Shipping may have broken more Fijian laws than previously thought, as Goundar:

• routinely docks seafarers’ pay for basic items like PPE (Personal Protective Equipment);
• fails to provide basic hygiene necessities such as hand soap or laundry powder
• refuses to give workers transparent payslips;
• does not provide functioning fire and protective equipment onboard – severely endangering crew and passengers;
• informed workers that they needed to sign a contract for another year before he will pay for their return flights.

The ITF’s Sarah Maguire said that the seafarers were brought to Fiji under the country’s laws, and it was the Fijian government’s responsibility to make sure their laws were enforced and lawbreakers punished.

“Fiji owes the victims justice by fully investigating every allegation made against Goundar and pushing for prosecution in every area where laws have been broken. A thorough, transparent investigation is what these seafarers deserve after Fijian officials failed to act for so long over the abuse rampant in their biggest shipping company,” she said.

Goundar’s ongoing treatment of seafarers embarrassing Fiji

In the ITF’s letter on Monday to the Office of the Prime Minister and Minister for Immigration, who are both Voreqe Bainimarama, and his top officials, the global union federation said that Goundar Shipping’s conduct was now embarrassing Fiji on the world stage.

“This is a test for the Fijian government, and the whole world is watching. Are employers made to honour their obligations and promises to workers in Fiji, or can they get off the hook without paying what’s owed under Fijian law? The answer will send a message to workers, employers and would-be scammers. It’s time to crack down on crooks like Goundar – make them pay,” said the ITF’s Maguire.

Seven of the Filipino 20 seafarers Goundar brought to Fiji under its scamming operation are still currently abandoned without income and housing in Suva. All of the seafarers, including those still working for the company, want to go home after months of being over-contract.

Goundar this week told nine of the remaining seafarers it employs that it would finally arrange flights for them.

However, the shipping company is refusing to pay for quarantine and Covid PCR testing as part of the repatriation, meaning the impoverished seafarers will likely remain stranded in Fiji. A PCR test is worth about $300 Fijian Dollars (or $190 AUD).