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.
So this makes us ask where the Fiji Human Rights and Anti-Discrimination Commission fits into all this.
We have not heard a word of condemnation from our human rights protection agency against this repeated denial of human rights. So this article is an attempt to look at our human rights “watchdog” in this situation and to try to work out what its rights and responsibilities are.
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 of the Universal Declaration of Human Rights (UDHR) concerns freedom of assembly and association. Combined with freedom of expression under Article 19 the right to gather publicly or privately and collectively express, promote, pursue and defend common interests is a protected human right.
“The exercise of fundamental freedoms should never be considered a crime, and impunity should never be accepted,” said UN experts after 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 reaffi rms the right to peacefully assemble and protest, under Section 18. It states: “Every person has the right, peaceably and unarmed, to assemble, demonstrate, picket and to present petitions.” Of course the Constitution places limitations upon these rights. But do they apply in the current context? The Constitution limits the rights of peaceful assembly and protest under the constitution for reasons which include: 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; and for the purpose of imposing restrictions on the holders of public offi ces. So let us look at each of these.
National security, public safety, etc Even though Fiji likes to refer to itself as a “COVID contained” country, we still have considerable limitations on our freedom of movement in the form of the 11pm-4am 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, this seems wholly unnecessary if we are a COVID free country and when there is no social distancing being enforced on buses, in restaurants, places of worship or sporting events. If we are restricting freedom to assemble and protest because of the pandemic while we allow all these other things, 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. So there seems to be laxity in enforcing every other regulation under the Act – but apparent strictness when it comes to the right to protest and picket. Why? Even so, the denial of permits by the police have been going on way before the pandemic began. So why has there been no concern for this clear violation of human rights from the Human Rights Commission? The Commission sometimes gives the excuse that there is “no complaint” as its reason to do nothing. This is like someone who sees another person on fi re but explains later that he or she didn’t help because the victim didn’t ask for help (or fi ll out a form).
Protecting the rights and freedoms of others What about the second ground – 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 third restriction on people’s rights to assemble, march or protest are “for the purpose of imposing restrictions on the holders of public offi ces”. Obviously these restrictions don’t apply here
Responsibilities of the Human Rights Commission The responsibilities of the commission have clearly been laid out in Section 45 of the Constitution. The Commission is empowered under s.45 (4)(f) to take its own initiative to investigate alleged breaches of human rights—with or without complaints. So it does not have to wait for someone to complain. Subsection (4)(g) of section 45 lists out the Commission’s responsibility to monitor the Government’s compliance with Fiji’s obligations under treaties and conventions relating to human rights. If the Commission is aware of these responsibilities and is simply ignoring them, it continues to build a case against itself and Fiji’s record as a state that respects human rights. In doing so, it continues to add to the public perception that the 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 laxity laid out in the US. State Department’s Human Rights country review. However, if the Commission is not aware of its responsibilities, I propose that it takes this article as a gentle reminder of the higher cause that it is mandated to serve for the betterment of all Fijians – including those who seek to assemble and protest, like the FTUC. Protecting human rights does not mean protecting only a few rights. It means protecting them all.
APENISA VATUNIVEIVUKE is the general secretary of the Youth Wing of the National Federation Party. The views expressed in this article are his and not necessarily shared by The Fiji Times
