Legal action options

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Suva lawyer Jon Apted speaking to the Fiji Times at the Fiji Law Society Convention 2023 at Pacific Harbour’s Pearl Resort. Picture: Ian Chute

Persons who wish to take legal action for alleged torture by a representative of the Government following the 2006 coup in Fiji have at least three options, said constitutional lawyer Jon Apted.

Mr Apted said as a first option, citizens may be able to bring a court action in the High Court seeking a ruling on whether the immunity provisions in the 2013 Constitution apply to their complaint of torture, “although Section 158 of the Constitution says that a court has no jurisdiction to hear or decide a challenge against immunity conferred under Chapter 10”.

“An action to decide on whether immunity from torture is conferred by Chapter 10 would not be a challenge against immunity, but would be asking the court to define where immunity applies, ” Mr Apted said.

Another option is to lodge a complaint of torture to an international human rights body under the Torture Convention and other international human rights instruments.

“This would be a complaint against the State of Fiji for treatment that they received from representatives of the Government of Fiji. The Fiji Constitution and its immunity provisions do not apply to these bodies,” he said.

Thirdly a criminal complaint can be made to the government of another country if it recognises universal jurisdiction over torture.

“This is what happened to General Pinochet, the former dictator of Chile,” he said.

“In 1996, lawyers acting on behalf of victims of military repression in Chile who were unable to pursue their claims at home filed criminal complaints in Spain against General Pinochet.

“Although the crimes were committed in Chile, Spanish courts allowed the cases to proceed in Spain, using the principle of “universal jurisdiction” over human rights atrocities that is contained in Spanish legislation and international law.’

He said this option was based on the idea that torture was a universal crime so every government has the right to prosecute anyone who committed this violation.

“However the number of countries who recognise this is limited and the availability of this remedy will depend on whether one of those countries is willing to accept a complaint and open an investigation,” he said.

If so, Mr Apted added they may request extradition from other countries to which the subject of the complaint may happen to travel.

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