by Apenisa Vatuniveivuke, NFP Youth Wing General Secretary
Opinion piece published in the Fiji Times on:
Saturday 10th April 2021
Lately, applying for a permit to march by the Fiji Trades Union Congress (FTUC) has become a bit of a joke. Everyone expects the applications to be refused. For whatever reason, the police will consistently deny FTUC and by extension the public the right to exercise the right to peacefully march and protest.
Through it all, it makes us ask where the Human Rights Commission fits into all this. We have not heard a word of condemnation from our Human Rights Protection Agency against this constant denial of Human Rights. This piece is an attempt to contextualize the current situation and offer an insight into the responsibilities of the Human Rights watchdog.
Why there is a contravention of Human Rights
From student occupations of universities in Paris in 1968 to the Arab Spring of 2011, mass demonstrations have been the way people demand social change. Article 20 (which concerns freedom of Assembly and Association) of the Universal Declaration of Human Rights (UDHR), combined with Article 19’s freedom of expression, together ensure the right to gather publicly or privately and collectively express, promote, pursue and defend common interests.
“The exercise of fundamental freedoms should never be considered a crime, and impunity should never be accepted.” said UN experts, on an Egyptian mass trial of 739 protestors, and the failure to investigate deaths and injuries caused by security forces.
States not only have an obligation to protect peaceful assemblies, but should also take measures to facilitate them. The former UN Special Rapporteur on the rights to peaceful assembly and association, Maina Kiai, pointed out that “Participating in peaceful protests is an alternative to violence and armed force, as a means of expression and change, which we should support. It must thus be protected, and protected robustly.”
The 2013 Fijian Constitution
The Fijian Constitution also reaffirms the right to peacefully assemble and protest under Section 18. In which it states that “Every person has the right, peaceably and unarmed, to assemble, demonstrate, picket and to present petitions.
Indeed, the Constitution places limitations upon these rights. However, I will lay out why these limitations do not apply to the current context.
As mentioned above, the Constitution of Fiji does place constraints under which rights may be limited. They are:
in the interests of national security, public safety, public order, public morality, public health or the orderly conduct of elections;
for the purpose of protecting the rights and freedoms of others; or
for the purpose of imposing restrictions on the holders of public offices.
The interests of national security, public safety, public order, public morality, public health or the orderly conduct of elections
Even though Fiji likes to refer to itself as a “COVID Free” country, we still have considerable limitations to the freedom of movement in the form of the 11.p.m. - 4.a.m. curfew (a human rights discussion for another time). Yes, measures are in place that restrict public gatherings out of the fear of so called ‘super-spreader’ events. But, it seems wholly unnecessary to do so when we are a COVID Free country and when there is no social distancing being enforced on buses, in restaurants, places of worship and at sporting events. If there is a concern of restricting freedom to assemble and protest because of the pandemic, the reasoning is really skating on thin ice.
Technically, the regulations that were put in place in line with the Public Health Act have not been amended or reviewed in a major way. Why then is there laxity in enforcing every other regulation under the Act but apparent strictness when it comes to the right to protest and picket?
Even so, the denial of permits by the police have been going on way before the pandemic began why has no concern for this clear violation of human rights been addressed by the Human Rights Commission?
The excuse of there being no complaint as a reason not to do anything that we have observed as the usual way to dodge your human rights responsibilities is placing the position as the nation’s supposedly top human rights defender at risk. It is analogous to clearly seeing a person on fire but explaining later that they did not help them because the person that was on fire did not lodge an official complaint by filling out a form.
Protecting the rights and freedoms of others
Marching and picketing, as mentioned above, are human rights. There is nothing to suggest that doing so affects the rights and freedoms of others. In fact, the right to protest has been a way to publicly demand human rights, show dissatisfaction and to demand change. The only people whose rights have not been protected are those that are applying for permits to exercise their constitutionally guaranteed freedom of assembly and public demonstration. A right which, to the best of my knowledge, the Human Rights Commission has been hesitant to protect.
The purpose of imposing restrictions on the holders of Public Offices:
This limitation does not apply in this context.
The Responsibilities of the Human Rights Commission
The responsibilities of the commission have clearly been laid out in Section 45 of the Fijian Constitution. Where they are empowered under subsection (4)(f) to take their own initiative to investigate alleged breaches of human rights—with or without complaints. Subsection (4)(g) of section 45 lists out their responsibility to monitor compliance by the State with obligations under treaties and conventions relating to human rights.
If they are aware of these responsibilities and are simply ignoring them, they continue to build a case against themselves and Fiji’s record as a state that respects human rights. In doing so, they continue to add to the public perception that the Human Rights Commission is no longer independent and bends only to the will of the government instead of calling out the government when it violates Human Rights and Freedoms. If anything, this adds weight to the allegations of Human Rights abuse laid out in the US state Department’s Human Rights country review on which the Director of the Commission so recently made public statements against.
However, if they are not aware of their responsibilities, I propose that they take this as a gentle reminder of the higher cause that they are mandated to serve for the betterment of all Fijians. The denial of Human Rights now clearly far outweigh the limitations cited to justify them.
Protecting human rights does not mean protecting only a few rights, it means protecting them all.