Bill On Parliamentary Powers and Privileges

Submissions by the Fiji Public Service Association

1.0  PREAMBLE

1.1  This submission is made by the Fiji Public Service Association (FPSA), a registered Trade Union, established in 1943, and operating in the Fiji Public Sector for eight decades.   Our membership consists of the bulk of permanent serving staff in the general, administrative, medical, accounting and technical sector cadres, including support staff, of the Public Service including statutory authorities and other government entities. The contents herein reflect their views and legitimate expectations on issues of freedom of expression and human rights.  It is their sincere desire to ensure and uphold freedom of expression or write and express whatever they want within the confines of the Bill of Rights.  It is also noted that Bill of Rights already have derogations and the current Bill will worsen the situation.

1.2  Response to Parliament: Our submission is in response to a Call by Parliament inviting interested parties to submit their considered thoughts on the contents of the Bill.  As an inherently involved social partner in the industrial and economic fields of the nation, we are qualified to aspire to make our submissions to the Standing Committee. It is the Association’s view that the contents of Bill No.28 of 2016 covers several fundamental and core issues of freedom of speech and human rights and issues, such as: violations relating to rights to express views and opinion freely including on parliament and elected members of parliament who cannot be above criticism as they are put there by the people including our members

2.0  GENERAL RESTRICTIONS

2.1   The initiation of the above Bill in Parliament strikes at the very heart of our freedom of speech (whatever is left of it) or expression and the provisions of the Media Industry Decree which is an anathema on freedom of speech.  This Bill removes the rights and freedom of expression of all citizens of this Country specified in Section 24-1 of the Bill. Section 24 restricts people’s rights to freedom of speech, expression & publication.  Every citizen has the right to make critical analysis of their elected representatives and demand accountability, transparency and good governance.  To put simply this Bill is proposed to create a law to silence the very people that puts MPs in Parliament and above all, as taxpers, pay for their salary and perks.  It is nothing more than intimidating people and denying them their basic right to “check and balance’ the performance of their representatives who are elected to represent them.  This is the basic principles of good governance.  It is clear that the very reason for the Bill is that Parliamentarians once elected will be “untouchable” and they would be free from any criticism.  People will now start thinking why bother going to the polls to elect an official who will not be accountable to the very people who put them there.  Furthermore, and ironically, the elected parliamentarians will have the power to sue citizens to whom they are supposed to be accountable.  If the law will remove our freedom and rights than we need to know what is the intention of this proposed Bill?  One would not be wrong in thinking that the inevitable consequences of such wide powers contained in the Bill would be the derogation from the jurisdiction and authority of Courts.  We seriously consider that it is necessary to strengthen the capacity for democratization and the accountability of the government.  These are important in themselves, but are also necessary to give a sense of security and confidence in the fairness of the system to each individual. Democracy is not merely majority rule.  Contemporary study of democracy shows that it is connected with social justice, impartial governance, human rights and the rule of law.

3.0  BREACH OF INTERNATIONAL COVENTIONS AND 2013 FIJI CONSTITUTION

3.1  The Amnesty International (AI) has pointed out that the Bill is about the curtailment of the rights and freedom of expression which would give power to Parliament and politicians to place them above the law and make them unaccountable for their actions and what they say.

3.2  The AI states that “the right to freedom of expression includes the right to critique government and challenge government policies.  Citizens should be allowed to raise important issues in the public interest and hold their representatives accountable.”

3.3  The Citizens Constitution Forum (CCF) has called for the removal of section 24 of the Bill.  It told the Parliamentary Standing Committee that it breached core international conventions on International Covenant on Civil and Political Rights  and Covenant on Economic, Social and Cultural Rights and is inconsistent with other provisions of the 2013 Constitution including Sections 18, 72 and 73 and infringed on people’s right to freedom of speech, expression or publication and freedom of assembly as guaranteed under the Bill of Rights.

4.0      DEMOCRACY AND RIGHTS

4.1   The concept and contents of rights has helped to establish the relationship between democracy and rights.  Some rights are sine quo non for the operation of democracy viz the right to vote, to stand for elections and to form political parties etc.  Rights also demonstrate to us the substance of democracy.  They remind us that democracy is more than the rule of the majority of parliamentarians.  Democracy is meaningless unless it is underpinned by the protection against arbitrariness, oppression and the denial of equality.  In this country we have been too long concerned with the procedural  aspects of democracy to the exclusion of the values that underlie it.  It is a fallacy to suppose that all rights are based on individual selfishness.  Even the more individual oriented rights are meant to guard the dignity of the person.

4.2  Fiji is a free society according to the Fiji Constitution and the FPSA vigorously protests that the Bill No.28 will impose serious restrictions on freedom of expression and as such the provisions which impinge on the freedom of speech should not be allowed to see the light of the day.

5.0      FIJI’S OBLIGATION AS A MEMBER OF THE UNITED NATIONS

5.1     Universal Obligations: Fiji Government is a member of the United Nations Organisation and many other specialized international agencies. Our nation has ratified numerous conventions and protocols to observe the universal and uniform standards in many areas of human endeavour.  As such, the Govt has an outright obligation to ensure that its undertakings are in support and conformity with international practices of human rights.

5.2     Parliamentary Oversight:  In light of the principles discussed above, it is incumbent on the Fiji authorities to always ensure that the international protocols and standards are applied, implemented and upheld in the Fiji national scene.  There are existing laws on defamation which is sufficient to address the issues raised in the Bill regarding criticism of members of Parliament or laws to deal with defaming and demeaning the sanctity of parliament.  The Association’s view is that Bill No.28 of 2016 is totally unwarranted and there is no need to make freedom of speech a criminal offence.  Defamation is primarily a matter of civil law between private parties or individuals.  This being so, it makes perfect sense to stay clear of criminal remedies or sanctions particularly where individual rights are at stake.  International experience suggests that attempts to use criminal sanctions on issues of human rights and freedom of expression ultimately brings both the law and the judicial system into disrepute and this would be the last thing that any government with conscience would contemplate risking to demean their standing in the international arena.

6.0    CONCLUSION

6.1  The foregoing submission comprises our views, comments and suggestions to the Standing Committee for the purposes of making our position known to the Parliament of Fiji.  It is obvious that there have been serious, and at times disastrous, shortcomings when a Bill or any legislation is brought by the government to stifle the voice of the people of this country.

6.2   The government has an obligation to propose laws that must be consistent with the international obligations and conventions and in this area the trade unions know that the government has a dismal record in observing ILO Core Conventions to which the government is a signatory.

The Association strongly condemns Bill No.28 of 2016 particularly the section that proposes to gag the voices of the citizens of this country and their rights to freedom of speech.  The Bill, in fact, flies in the face of functioning of a parliamentary democracy.  It also notes that Fiji does not have a liberal democracy and the current Bill No.28 will further take the country towards anarchy and shutting out any opposing views which would strike at the very heart of freedom of speech.