CONSTITUTIONAL lawyer Jon Apted has raised serious concerns about the state of human rights and the separation of powers under the 2013 Constitution, describing them as illusory.
Speaking at the Attorney-General’s Conference on the session titled Where to from here? A Constitution by the people, Mr Apted questioned key provisions of the Constitution, highlighting its limitations on human rights and the broad powers it gives to the Government.
Mr Apted cited Section 73 of the document, which reserves the 400 decrees and promulgations enacted before the Constitution’s adoption.
“They’re not subject to the Bill of Rights provisions,” he said.
“So, if the FCCC (Fijian Competition and Consumer Commission] or the Commerce Commission does something to you that breaches your rights under this Constitution, you have no Bill of Rights remedy because that provision is reserved.”
Mr Apted also emphasised the removal of a critical safeguard that previously required any limitation of rights to be “reasonable and justifiable in a democratic society”.
He noted that under the 2013 Constitution, this provision no longer existed. Instead, Section 656(5) allows rights to be limited if the limitations are “necessary and are prescribed by a law, or provided under a law, or authorised or permitted by a law, or actions taken under a law”.
“What it seems to mean is that, so long as there is a law and the Government can justify it as necessary, they can do whatever they like to infringe your rights, regardless of whether it’s permitted by a specific limitation provided for under that right. So that’s pretty wide.”
Mr Apted acknowledged that courts in recent years have applied a proportionality test, ensuring that limitations to rights are “no more than necessary”.
However, he cautioned that judicial interpretations could change, leaving no fixed limit on the scope of rights infringements.
“The human rights provisions need review if we are truly going to have a country, a society in which human rights are protected.”
