President of the Republic of the Fiji Islands
H.E. Ratu Josefa Iloilovatu Uluivuda, CF, MBE, KStJ, MSD, JP
Dear President Ratu Iloilo,
In February 2007, Human Rights Watch wrote to you detailing a number of grave human rights violations in Fiji stemming from the December 2006 military coup, including one death in military custody, arbitrary detentions of at least two dozen people, and the provision of immunity for military personnel involved in the coup. To date we have yet to receive a response.
We write again now to communicate urgent concerns regarding the recent developments in Fiji following the Court of Appeal decision in Qarase v. Bainimarama on April 9, 2009, and your subsequent announcement, with the backing of the army, "I hereby confirm I have abrogated the 1997 constitution and appointed myself as head of state in the new order." Over the past three weeks, the Fiji government has engaged in serious violations of the rights to freedom of expression, association, and assembly, among others, and abolished any pretence of an independent judiciary. These actions, in which the President has given himself near absolute powers, have made Fiji a dictatorship.
On April 9, 2009, the Fiji Court of Appeal declared the coup of December 5, 2006, unlawful and noted that it would be advisable for the President to appoint a distinguished person independent of the parties to the litigation as caretaker Prime Minister. That caretaker Prime Minister was to advise the dissolution of the Parliament and direct the issuance of writs for an election. The following day, you abrogated the Constitution, appointed yourself head of state, revoked the appointment of all judicial officers, and reappointed military commander Commodore Bainimarama as interim Prime Minister. Despite your promise, in your Address to the Nation at this time, that basic rights would be protected under the new legal order, the interim government and security forces have committed serious human rights violations.
Rule of law and the independence of the judiciary
Recent presidential actions have failed to uphold the rule of law and encroached on the independence of the judiciary. On April 10, 2009, you removed all judicial officers from office. On April 16, you issued the Administration of Justice Decree, which removes the President of the Law Society from the Judicial Services Commission and terminates all pending cases that challenge the actions of the interim administration since the coup. On April 20, you appointed, under this Decree, Ajmal Gulab Khan as Chief Magistrate and Faizal Koya as magistrate, together with seven others who were sitting magistrates prior to the abrogation. Ana Rokomokoti, the former military lawyer who was appointed a magistrate by the interim administration in May 2007, was appointed Chief Registrar on April 15 by the Public Service Commission, reconstituted under the State Services Decree 2009. Five magistrates, Amani Rokotinaviti, Josaia Waqavolavola, Vani Ravono, Laisa Laveti, and former Chief Magistrate Naomi Matanitobua, were not reappointed. All other judicial offices remain vacant. Since their removal, judges have been closely monitored by police and military officers and have been refused access to the court buildings.
Lawyers are also being targeted. On April 14, police arbitrarily detained Dorsami Naidu, the President of the Fiji Law Society, after Naidu attempted to enter the Lautoka High Court Building with fellow lawyers and High Court Judge Gwen Phillips to deal with cases as usual. Naidu was released the next day, though has since received a late night telephone call from someone identifying himself as a military officer, asking him to come to the barracks. Naidu refused. In addition, the Law Society has not been given written permission to meet, over two weeks after it applied for such a permit.
Through the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, you revoked all constitutional offices, including the Office of the Solicitor-General and of the Director of Public Prosecutions. You reappointed Christopher Pryde, an interim government appointee who represented Commodore Bainimarama in the Qarase v. Bainimarama proceedings, on April 21 after consulting with the Interim Attorney General, pursuant to the State Services Decree 2009. A new Director of Public Prosecutions is yet to be appointed.
Taken together, these steps severely undermine access to justice and the independence of the judiciary. In order to restore the rule of law, Human Rights Watch urges you to:
- Return immediately to constitutional rule, annul decrees made since April 10, 2009, in particular the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, Revocation of Judicial Appointments Decree 2009, the Administration of Justice Decree 2009, and the State Services Decree 2009, and recognize the legal system as it stood prior to April 10, 2009.
- Publicly commit to upholding the fundamental principles of independence of the judiciary, the prosecutorial service and lawyers, and desist from further undermining these principles.
- Abide by the Qarase v. Bainimarama decision; any discontent with the decision should be addressed through the ordinary course of appeal.
- Respond immediately and positively to the UN Special Rapporteur on the independence of judges and lawyers' request of January 18, 2007, and reiterated on June 26, 2008, for a country visit to Fiji. On November 9, 2008, the Permanent Mission of Fiji articulated strong support for this request before the UN General Assembly.
- Issue an open invitation to all Special Procedures of the UN Human Rights Council and other international observers.
Freedom of expression
The right to freedom of expression has been violated since April 10, 2009. The government has censored media outlets and intimidated human rights defenders, journalists, lawyers, and political opponents.
The Public Emergency Regulations 2009 empower the Permanent Secretary for Information to prohibit the broadcast or publication of any material the secretary believes may result in a breach of the peace, or promote disaffection or public alarm or undermine the government.
Immediately following the abrogation of the Constitution on April 10, Ministry of Information officers were placed in newsrooms to monitor what is being published. On April 12, the most widely distributed national daily newspaper, the Fiji Times, contained blank spaces, with the notice, "the stories on this page could not the published due to Government restrictions"; Fiji TV cancelled its 6 p.m. news broadcast, displaying instead this message, "Viewers please be advised that there will be no 6 p.m. News tonight"; other domestic news sources omitted stories on the political situation.
The Ministry of Information and police have summoned editors, publishers, and journalists to explain or justify stories. On April 13, the police took Fiji TV reporter Edwin Nand into custody for allegedly breaching the Public Emergency Regulations 2009 by interviewing Australian Broadcasting Corporation (ABC) journalist Sean Dorney prior to his deportation. Nand was detained at the Central Police Station for two nights before being released without charge. On April 16, the police arrested PACNEWS journalist Pita Ligaiula for allegedly breaching the regulations. Ligaiula was released the following day without charge. The same day, five regional and international media correspondents based in Fiji were summoned to appear before the Ministry of Information, where they were told to comply with the regulations. At around 7 p.m. on April 16, police raided the Islands Business office. Police specifically stated that their purpose was to prevent the release of a story on the detained journalist Pita Ligailua.
Three international journalists, New Zealand's 3 News reporter Sia Aston and cameraman Matt Smith, together with ABC Pacific Correspondent Sean Dorney, were forced to leave the country on April 14. On April 13, all three had been summoned to the Ministry of Information, where officers told Aston and Dorney that they were not happy with their reporting. Aston and Smith were ordered to erase all material from their tapes prior to their departure. The three were then detained for five hours before being handed over to Immigration officers who accompanied them to Nadi, where they spent the night. The next morning, they were served with deportation papers and put on flights to New Zealand and Australia. Some international journalists have since been allowed to enter Fiji and report, but are only permitted to do so at the interim government's invitation and their reports continue to be censored.
On April 15, two Radio Australia FM transmitters were shut down by local technicians who were acting on the orders of officers from Fiji's Ministry of Information and soldiers. On April 20, Pacific Women's Information Network (Pacwin), a regional listserv, issued the following message:
Until further notice this list will be moderated. We kindly request all members to refrain from posting commentary on the current situation in Fiji. All such posts will be withheld by our moderators.
Human Rights Watch urges you to:
- Immediately cease the harassment and arbitrary detention of journalists, writers, lawyers, human rights defenders, and political opponents.
- End government interference of the domestic and foreign media.
- Discipline or prosecute as appropriate any officials found to be carrying out any activities restricting the right to freedom of expression.
State of Emergency
The Public Emergency Regulations 2009, decreed on April 10, purports to empower security forces to prohibit processions and meetings, to use such force as considered necessary, including use of arms, to enter and remain in any building where there is reason to believe three or more people are meeting, and to regulate the use of any public place of three or more persons. It further provides for the detention of suspects for up to seven days without charge. Regulation 3(3) provides:
[n]o police officer nor any member of the Armed Forces nor any person acting in aid of such police officer or member using such force shall be liable in criminal or civil proceedings for having by the use of such force caused harm or death to any person.
The wide-ranging powers and immunity provided in these regulations contribute to impunity for members of the security forces. In addition, the regulations violate the rights of liberty and freedom from arbitrary detention, free speech, and freedom of peaceful assembly. The arbitrary enforcement of restrictions on gatherings and meetings, provided for in the regulations compromises the work of nongovernmental organizations, religious groups, and other civil society organizations.
The Public Emergency Regulations 2009 are incompatible with international human rights standards, and we urge that you revoke them immediately.
The people of Fiji have a right to take part in self-government through free and fair elections.
You stated, in your Address to the Nation given on April 10, 2009, that you believe "that a period of five years is necessary for an interim government to put into place the necessary reforms and processes." As such, you advised that you would "direct the soon to be appointed Interim Government to hold true democratic and parliamentary elections by September 2014 at the latest." Commodore Bainimarama echoed your comments in his own Address to the Nation the following day, noting that the Interim Cabinet would "ensure that elections are held at the latest by September 2014."
Human Rights Watch urges you to take immediate steps toward holding elections by immediately appointing an independent civilian caretaker Prime Minister to promptly direct the issuance of writs of election. Any aims for electoral reform should be pursued through the democratic process entrenched in the Constitution.
Human Rights Watch reminds you that even under a state of emergency, the government of Fiji must protect and uphold fundamental human rights of all people in Fiji. Human Rights Watch urges you to commit to the promotion and protection of human rights, the rule of law, and democratic governance by taking the substantive steps recommended in this letter. This includes returning to constitutional rule, respecting the rights to freedom of expression, association, and peaceful assembly, restoring judicial independence, and holding elections as soon as possible. Should you fail to do so, the future of human rights in Fiji will remain in jeopardy.
We welcome any opportunity to discuss these matters with you further.
Commander of the Republic of Fiji Military Forces
Commodore Josaia Voreqe Bainimarama