By Ashwin Raj
The vitriolic diatribe that the Permanent Representative to the United Nations and other offices in Geneva Ambassador Nazhat Shameem Khan has been subjected to for a principled intervention that Fiji made against institutionalised racism and the Human Rights and Anti-Discrimination Commission for its presence and participation at the 34th session of the Human Rights Council in Geneva necessitates a response.
While Fiji made a number of substantial interventions premised on principles of non-discrimination, human dignity and substantive equality spanning from social and economic rights to civil and political rights such as the rights of persons with disabilities with a particular focus on Article 5 of the Convention on the Rights of Persons with Disabilities, protection of the rights of children in the implementation of the 2030 Agenda for Sustainable Development, Fiji’s commitment towards the ratification of all core human rights instruments by 2020 and its presidency over the United Nations Conference on Climate Change COP23, the enjoyment of human rights by persons with albinism, the inexorable relationship between human rights and peace, the abolishment of death penalty, the impact of climate change on the rights of children and the incorporation of human rights education into the school curriculum in response to Fiji’s commitment to the 2030 Agenda for Sustainable Development, and access to medicine as one of the fundamental elements of the right to the enjoyment of the highest attainable standard of physical and mental health, the polemicists have strategically and exclusively focused on racism.
So what exactly did the Ambassador say about racism that has riled the NFP, SODELPA, Wadan Narsey, self-selected moral entrepreneurs and arm chair critics? “It must be noted”, the Ambassador said, “that racism was institutionalised in Fiji to such an extent that it instilled in a privileged class a sense of entitlement based on ethnicity and CLASS, and that racist attitudes were engrained in all communities, which have resulted in mistrust, resentment and suspicion”.
The Ambassador never used the word “caste” as has been reported by the NFP and SODELPA and uncritically reproduced by the Fiji Times, Radio New Zealand and the ABCamongst various other social media platforms. She actually used the word “class”.
This begs the question, is the NFP and its leadership deliberately encouraging the conflagration of communalism given that the word “caste” has a particular historical and sociological resonance with the Indo-Fijian community?
One does not need a doctorate in sociology to appreciate the political purchase of the term caste or indeed need such a credential to condemn racism!
The string of racist, sexist and bigoted comments following the NFPs post on Facebook is a sad indictment of the fact that racism and prejudice is alive and thriving.
Extremely derogatory things have been said and continue to be said about the Ambassadors ethnicity, her gender, and her religion and the NFP did not even once intervene in the barrage of these attacks which are simply unconstitutional.
Not only did they selectively focus on the issue of racism, they also deliberately distorted what was said about racism to suite their own political agenda.
The Ambassador never apportioned the charge of racism to a single community. She actually said “…racist attitudes were engrained in all communities”. The following statement that Wadan Narsey so casually and conveniently dismissed is a testament to that:
“Fiji has embarked on a path of substantive equality and this path requires a level of gender, disability and cultural competence and the ability to understand that poverty and disadvantage exists in all cultural groups”.
So is it not obvious then that it is precisely these detractors who are reproducing a racist epistemology to give credence to their own political agenda?
Their vitriol raises fundamental questions about whether a non-indigenous can speak on indigenous issues. It is also a sad indictment of the fact that Fiji has yet to learn to speak meaningfully about race without descending into racism.
Incidentally, in reiterating Government’s priority in light of Fiji’s presidency over the United Nations Conference on Climate Change COP23 and underscoring the inextricable relationship between climate change and human rights and in particular recognising the specific vulnerabilities of women, children and persons suffering from disabilities in disasters and climate change induced movement, the Ambassador had adduced the significance of ensuring that “natural relocation policy is sensitive to indigenous rights in ensuring that the rights of the iTaukei to use land, food security including the protection of cultural rights, customary fishing rights and safeguarding of traditional grave sites are protected”.
So why did the NFP, SODELPA and Wadan Narsey not make any reference to these subsequent paragraphs appearing immediately after the paragraph that the NFP deliberately misquoted, SODELPA, the Fiji Times, Radio New Zealand, ABC reproduced and Wadan Narsey once again conveniently glossed?
Your guess is as good as mine!
So are the Ambassador and the Fijian Government really complicit in the erosion of indigenous rights and the distortion of the concerns of the iTaukei at the UN as has been intimated or are her interventions an affront to the political elite that have profited from racism in the last three decades?
Her interventions affirm the intersectional nature of indigenous community’s human rights concerns that affect the ordinary iTaukei in Fiji as opposed to the obsession with political preponderance unabashedly lampooned as an affirmation of indigenous rights. Are these human rights costs of climate change to our iTaukei any less pressing because it has been conveyed to the world on behalf of Fiji by a woman, a Muslim and an Indo-Fijian?
The Ambassadors allusion to the creation of a privileged class as a result of institutionalised racism is about the complicity between the political elite across the racial divide in which the only people who suffered were the marginalised. To those who are suffering from social amnesia or wilful forgetfulness, here is the legacy of institutionalised racism in Fiji:
The politicisation of the sugar industry by the political elite of both major ethnic communities and the consequent non-renewal of cane leases, displacement, social death and poverty accentuating existing class polarities not only between but within communities;
An electoral system premised on ethnicity that entrenched racial compartmentalisation;
The exploitation of non-unionised workers mostly iTaukei and Indo-Fijian women, in tax free zones established to arrest Fiji from the economic malaise following the 1987 coup;
Social justice initiatives such as the enactment of the Social Justice Act 2001 and the implementation of the 2020 Affirmative Action Plan which were contrary to Section 44 (1) of the 1997 Constitution which mandated the design of programmes to achieve equality for all groups or categories of persons who are disadvantaged and therefore deprived of access to education and training, land and housing and participation in commerce and in all levels and branches of service of the state;
Discrimination in the education sector as evidenced in the selection criteria for scholarships. Not only were Indo-Fijians deprived of equal opportunity, the requirements for a Fijian Affairs Board (FAB) scholarship also precluded children that were not registered under the Vola Ni Kawa Bula (VKB). Furthermore,the applicant had to have paternal lineage if she or he were a Rotuman effectively depriving any child who had maternal lineage to iTaukei but paternal lineage to any other race;
Not only were Indo-Fijian farmers rendered landless because of institutionalised racism, both the SVT in the 1990s and the SDL after coming into power in 2001 introduced policies that surreptitiously and permanently alienated the iTaukei from their customary land through the conversion of iTaukei land into freehold land. A damning example is the Momi Bay;
Accumulation in the hands of a few in the name of indigenous capitalism to at least putatively bridge the gap between Indo-Fijians and iTaukei. The unlawful allotment of Fijian Holdings Limited shares by Laisenia Qarase who was the Director of Fijian Holdings Limited and a Financial Advisor to the Fijian Affairs Board and the Great Council of Chiefs after all prioritised immediate family members over the provincial, Tikina Councils and eligible iTaukei people;
The introduction of the Reconciliation, Tolerance and Unity Bill and the Qoliqoli Bill not only deprived Indo-Fijians from ownership and access to land and ocean, but precluded the iTaukei community as well;
The unequal distribution of lease money and the introduction of goodwill payment over lease renewals.
Is the coalition of detractors denying that Fiji has a history of institutionalised racism? Erasing the ignominy of racism from our public memory will require the courage of conviction to confront this history. Will we speak up against racism and structural inequality again? Absolutely and unabashedly.
Fijileaks: In August 2006, four months before the December coup, VICTOR LAL had analysed in the Fiji Sun the Social Justice Bill and had revealed how the Qarase Goverment had lied that it was not consulted by the Fiji Human Rights Commission
FHRC consulted Government on Affirmative Action Report
The consultant who reviewed the Affirmative Action programme for the Fiji Human Rights Commission provided ample opportunity to the Prime Minister's Office to respond to various queries. The consultant's recommendations titled 'Report on Government's Affirmative Programmes 2020 Plan for Indigenous Fijians and Rotumans and the Blueprint - June 2006', which the Commission is yet to officially release, notes that 'the government had decided that rather than the Government submitting comments on the consultant's draft report to the Commission, the Commission should proceed to its publication and public release'.
If it is true, than the Prime Minister is clearly wrong to raise the concern that FHR report on the Blueprint is definitely biased as the Commission consultant did not approach him or his CEO to get the government's side of the story on the setting up of the program. He also expressed concern that the report was only prepared by one consultant who never spoke to anyone at the PM's Office.
Mr Qarase said he is now analyzing the report following comments by the Commission that it would take the government to court if it does not make immediate changes to the Affirmative Action Program. According to the report, the Government was provided with a number of opportunities to be heard during the investigation.
It was advised of the intention to investigate and invited to provide information about all affirmative action programmes. In March 2005 the Office of the Prime Minister was advised that a number of government ministries, departments and agencies had not responded to requests for information, and the assistance of that office was sought in obtaining their cooperation - some departments subsequently responded, others did not; That same month the CEO of the Prime Ministers Department, the report claims, advised that at a discussion of departmental Chief Executive Officers on 18th March 2005 it had been agreed that the Prime Minister's Office would reply on behalf of Government through its Chief Executive Officer, though no response was received.
Over two months later, on 23rd May 2005, the CEO of Prime Ministers Office sent a copy of the publication For the Good of All, which had been tabled in Parliament in 2004. Later, on 24 November 2005, the same CEO sent copies of a second report on the implementation of the affirmative action programmes under the Social Justice Act that had been tabled as Parliamentary Paper No 108 of 2005. The CEO also supplied the Commission with a copy of the Preliminary Analysis by the ADB of the 2002/2003 Household Income and Expenditure Surveys (September 2005) together with comments.
Despite these opportunities already given, the Commission claims, it provided the Government with a final opportunity to comment on the investigators report and the draft report was sent to the government with the request that a response be received by 23 March 2006. The government subsequently sought an extension of time, and the date for final response was amended to 1 May 2006.
On 19 May 2006, according to the report, the CEO of the Prime Minister's Department wrote to the Commission to advise that the government had decided that rather than the Government submitting comments on the consultant's draft report to the Commission, the Commission should proceed to its publication and public release.
In 2004 the Commission had instigated an 'own motion' investigation into the Government's affirmative action programmes under the Social Justice Act 2001, aspects of the Blueprint initiated by the Interim Government in July 2000 and adopted and continued by the SDL Coalition Government, and the Social Justice Act itself. When notified of the Commission's intention to undertake the investigation, the SDL Coalition Government had offered its cooperation, says the report.
The Commission's decision to instigate the own motion investigation was triggered by the number of complaints it received from different sources about the Affirmative Action law and policy as well as by the Commission's own concerns about the proposals of two different Governments to enact Social Justice legislation for Fiji.
The investigation examined whether each affirmative action and blueprint programme, the policy, and the law complied with the requirements for affirmative action in Chapter 5 (section 44) of the Constitution. Based on the consultant's research, the report concludes that overall, but with some exceptions, the affirmative action programmes put in place by Government under the Social Justice Act 2001 do not comply with the Constitution.
The Social Justice Act 2001 does not comply with the Constitution.
It continues as follows:l Affirmative action programmes based on ethnicity do not comply with the Social Justice provisions (Chapter 5, section 44) of the Constitution.l The programme as a whole lacks a proportional balance between any disadvantage intended to be addressed and the measures being taken to alleviate the disadvantage. Minor or even presumed but non-existent disparities between ethnic groups have been used to justify the complete exclusion of groups other than indigenous Fijians and Rotumans from the bulk of the programmes
The programmes fail to make provision for all who are disadvantaged. This is particularly so in relation to women, who are far more disadvantaged than men. Individual programmes are weighed so disproportionately against Indians, women and other disadvantaged groups as to undermine the legality of all the programmes based on ethnicity.
No programme accurately links its goals to the disadvantage borne by the target group that it is intended to overcome.
Few programmes identify any performance indicators and those that do have no historical component. It is therefore not possible to monitor the effectiveness of the programmes without data that identifies trends before and after the programmes were initiated. There is no data that relates to whether alleged disparities between indigenous Fijians and Rotumans and Indians, for example, have reduced in the areas where affirmative action programmes have been introduced.
On the question whether Government has discharged its burden of establishing justification for the programmes, the report says that the Government's principal justification for its affirmative action programmes, that the rural sector is poorer than the urban sector and a majority of indigenous Fijians live in rural areas, is seriously flawed. In fact, the poorest households in rural areas are Indian.
The Government's other main justification (that the average income of indigenous Fijians is below that of Indians and Others and therefore all indigenous Fijians are disadvantaged and entitled to affirmative action) does not meet the legal standards imposed by the Constitution, the Human Rights Commission Act, and international law.
The programmes fail to justify the distinctions based on ethnicity on which most of the programmes are based. The Government has not established that 'the race-based affirmative action programmes meet the legal standards for these particular programmes'.
According to the report,
the programmes have not been established in response to a justifiable compelling Government interest;
the programmes are not narrowly tailored to remedy the past discrimination or present disadvantage that they purport to correct;
the programmes are not narrowly tailored to exclude from the indigenous Fijian group preferred, any members who are not, or are no longer disadvantaged, through means testing, or class-based and other appropriate measures;
the programmes are inflexible, without waiver provisions to narrow their scope;l criteria in relation to targets make no reference to those qualified group members in the relevant sector or industry;
there is no evidence that the Government has considered race-neutral alternatives;l although the programmes are temporary, the periodic review mechanisms are inadequate;l there is little or no consideration given to degree and type of burden, including on excluded groups, caused by the programme.The report goes on to ask whether affirmative action law and programmes are lawful, and answers in the following:
Since the Affirmative Action programmes do not fulfil the requirements of the Social Justice Chapter in the Constitution, they are not protected by the exemption in section 44 (4). Accordingly, to the extent that certain disadvantaged groups are excluded from the Affirmative Action programmes, they are being unfairly discriminated against in contravention of their rights contained in section 38 (2) of the Constitution.l Since the Affirmative Action programmes do not fulfil the requirements of section 21 of the Human Rights Commission Act, they amount to unfair discrimination in breach of section 17 of the Act.
Since the Affirmative Action Programmes do not fulfil the 'special measures' requirements contained in international human rights instruments such as the Convention on the Elimination of All Forms of Racial Discrimination (CERD), they amount to a contravention of the rights contained in section 38 (2) of the Constitution.
Since the Affirmative Action programmes are based on the Social Justice Act 2001, and the Social Justice Act itself breaches Chapter 5 of the Constitution, the programmes cannot be justified on grounds that they comply with the Act.It concludes by noting that the 50/50 by 2020 Development Plan, the Blueprint and the Social Justice Act 2001 have the combined effect of imposing large-scale discrimination against the minority ethnic groups, specifically on the disadvantaged categories within these groups, and more generally on other disadvantaged groups who have not been provided with affirmative action programmes to improve their conditions of life.
The affirmative action law, policies and programmes do not comply with the requirements of Chapter 5 of the Constitution.
