Opinion

Pacific Regional Workshop on the Benefits of, and Challenges to, the Ratification and Implementation of the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment

 This following is the Attorney-General Aiyaz Sayed-Khaiyum’s speech at the United Nations Convention Against Torture regional workshop at the InterContinental Fiji Golf Resort & Spa at Natadola yesterday.  
29 Oct 2016 12:00
Pacific Regional Workshop on the Benefits of, and Challenges to, the Ratification and Implementation of the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment


This following is the Attorney-General Aiyaz Sayed-Khaiyum’s speech at the United Nations Convention Against Torture regional workshop at the InterContinental Fiji Golf Resort & Spa at Natadola yesterday.

 

 

The Honourable Prime Minister;

Your Excellency, the Ambassador of Indonesia to the United Nations in Geneva;

Your Excellency, the Ambassador of Denmark to the United Nations in Geneva;

Your Excellency, the Ambassador of Ghana to the United Nations in Geneva;

Your Excellency, the Ambassador of Chile to New Zealand;

The members of the Core CTI (Convention against Torture Initiative) Group;

Your Excellency, the Ambassador of the United States of America to Fiji;

Your Excellency, the British High Commissioner to Fiji;

The Regional Representative of the Office of the United Nations High Commissioner for Human Rights;

The Deputy Head of Delegation of the European Union for the Pacific;

The Director of Public Prosecutions;

The Deputy Commissioner of Police;

The APT (Association for the Prevention of Torture) Secretary-General;

Distinguished Guests;

Ladies and Gentlemen,

 

Bula vinaka and a very good morning to you all.

 

  1. On behalf of the Fijian Government, it gives us great pleasure to welcome you to the first ever Regional Workshop on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment held in the Pacific.

 

  1. The Fijian Government is firmly committed to advancing and protecting the fundamental principles and values of universal human rights enunciated in the Universal Declaration of Human Rights whilst cultivating an ethos of a responsible human rights culture. To this end, the Fijian Government at its second Universal Periodic Review Cycle reaffirmed its commitment to ratifying the nine core international human rights instruments by the year 2020.

 

  1. We are pleased to say that Fiji has ratified four out of the nine core international human rights instruments, which are:

 

  1. Convention on the Rights of the Child (CRC);
  2. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);

iii.           International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’); and

  1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’).

 

  1. In relation to CERD, when Fiji ratified it on 11 January 1973, one of the reservations made was in relation to political rights under Article 5(c) which guaranteed the right to participate in elections on the basis of universal and equal suffrage. On 10 August 2012, and I believe it is very important to note this, the Bainimarama Government notified the Secretary-General of the withdrawal of reservations and declarations made upon ratification on 11 January 1973. The 1970 Constitution, the 1990 Constitution and the 1997 Constitution mandated voting along ethnic or racial lines. However, with the 2013 Constitution, which removed the requirement to vote along ethnic or racial lines, and the removal by the Bainimarama Government of that reservation, the 2014 General Election was not conducted under an electoral system that had racial discrimination as in the past, and was free and fair, with the full participation of all Fijians. It also meant that the votes of all Fijians were equal.

 

  1. I’m pleased to also say that this year, the Fijian Government presented to Parliament the motion to ratify the Convention on the Rights of Persons with Disabilities. And we anticipate the parliamentary Standing Committee on Foreign Affairs and Defence, which deals with the ratification of conventions, to present their report to Parliament in the first sitting of 2017. And we expect Parliament to approve this in 2017.

 

  1. The Fijian Government realises and accepts that cases and allegations of torture and ill-treatment are not unique to Fiji or to the Pacific. This is a global issue and in order to address this, domestic law and policies must be in conformity with CAT. Indeed we would argue that the development of jurisprudence is also critically important to support the laws and policies that are being put in place.

 

  1. Just by way of background, I’d like to very quickly give a short demonstration of the issues we face.

 

Constitution of the Republic of Fiji

  1. The Fijian Constitution has a very comprehensive Bill of Rights. For the first time in Fiji, it creates the conditions for the realisation of civil and political rights, but also at the same time, includes social and economic rights, where the State is legally obligated for the advancement, protection and progressive realisation of these rights.

 

  1. Importantly, the application of such rights in Fiji is no longer simply confined to their vertical application but also their horizontal application. In other words, these rights are also enforceable against private actors. As the Honourable Prime Minister highlighted, the Fijian Constitution addresses torture. It affords the right to freedom from torture of any kind- not just by the State but also in homes, schools and other private places.

 

  1. Similarly, section 26 of the Fijian Constitution provides for the freedom from unfair discrimination which is applicable to private actors, whether they are private clubs or associations. It extends to those groups too.

 

  1. Now, I do not want to read out all the provisions pertaining to freedom from torture which we can, of course,discuss in this workshop. The Fijian Constitution refers to physical, mental or emotional treatment and the right to be free from cruel, inhumane, degrading or disproportionately severe treatment or punishment. It also states that every person has the right to freedom from scientific procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.

 

  1. It is prudent to argue that, as the Honourable Prime Minister highlighted, section 11 of the Fijian Constitution in fact goes beyond the provision that has been set out in the Convention as it extends to the home, school and work.

 

Crimes Decree 2009

  1. We also have, under section 87 of the Crimes Decree 2009, a provision relating to torture. A person commits an indictable offence by inflicting severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population. So there are much wider implications.

 

  1. Indeed ladies and gentlemen, one can argue that with all these constitutional and legislative provisions in place that it was not difficult for the Fiji to ratify CAT.

 

  1. Ladies and gentlemen, the jurisprudence in Fiji has also interestingly developed over the past few years. There was one particular case that in fact I was involved in when I was working at the DPP’s office – the case of Taito Rarasea v State (2000) in which a prisoner had appealed against a six-month imprisonment sentence for escaping from lawful custody, contrary to the Penal Code. Whilst the Court was giving him an additional sentence, the then Commissioner of Prisons also decided to impose other relevant punishments under the Prisons Act, which included the prisoner not getting adequate food.

 

  1. The presiding Judge, Justice J Madraiwiwi, who subsequently became the Vice President and who unfortunately passed away a few weeks ago, gave a ruling to say that reducing the prisoner’s food rations amounted to inhumane and degrading treatment. The ruling stated that it was cruel treatment and that you should not be punishing somebody twice, but also that the then Commissioner of Prisons had no right to deprive the prisoner of food.

 

  1. In fact what is interesting too is that at that time, Fiji had not ratified CAT, there were no specific laws in place, and we had not even ratified the International Covenant on Economic, Social and Cultural Rights. However, because the then Constitution allowed Judges to refer to international law as far as the enforcement of rights is concerned, that gives them the latitude to refer to cases offshore. So that also helps in developing the jurisprudence within the Fijian jurisdiction itself.

 

  1. There was also another case, in 2005,the case of Subash Mani v Ramendra Kumar & Others,where there were allegations of police brutality. In that particular case, because there were fractures that the person had sustained while in custody,he was awarded damages in the sum of $129,520.

 

  1. All these cases in fact developed prior to the ratification of the CAT. So it is very important to see that at the time of ratification, we already had existing jurisprudence which can be referred to, and indeed, will help us in terms of the enforcement of the various provisions that have now been put in domestic legislation.

 

  1. Our road to the ratification of CAT started shortly after the opening of Fiji’s Permanent Mission to the United Nations and other Offices in Geneva. The Fijian Ambassador was asked to meet with the Association for the Prevention of Torture (‘APT’) for discussions on ratification of CAT.

 

  1. Following that, of course, I have to highlight in particular to our fellow Pacific Island countries that it is very critical to have the political will to be able to see this through. And I am glad to say that our Honourable Prime Minister had the political will to see this through all the way.

 

  1. With the assistance of the APT, Fiji then presented the motion to Parliament, because under the Fijian Constitution, in order for us to be able to ratify an international convention, as provided under section 51, we have to obtain parliamentary approval.

 

  1. So we put a motion to Parliament and Parliament, of course, referred the matter to the Standing Committee on Foreign Affairs and Defence for further analysis and public consultation. Following that, the Standing Committee, of course, received submissions from civil society groups and various other stakeholders, including from individuals. There was an overwhelming response that the Fiji should ratify CAT. The Standing Committee’s report was then debated in, and approved by, the Fijian Parliament and CAT was ratified.

 

  1. Some remarks have been made about Fiji’s reservations and we have alluded to the reservation of Article 1. Of course our argument is that the scope of torture in Fiji is far wider than what is provided for in CAT itself. There is also reservation to Article 14 which deals with compensation and this of course can be discussed. But it must be noted that New Zealand for example also has a similar reservation to Article 14.

 

  1. Article 20 deals with the competent authority and there are also other countries such as Israel with reservations to this article. Similarly with Article 30, countries like France, South Africa, China and Israel have similar reservations. And of course in respect of general reservations,the United Kingdom also shares this with us.

 

  1. On the subject of the ratification of CAT, we are pleased to say that we have identified a number of priority areas for the implementation of CAT. This includes reform of police interrogation procedures and the effective implementation of the right to counsel, which is a right guaranteed under the Fijian Constitution.

 

  1. Ladies and gentlemen, something we tend to forget is that it is very important that we have complementarity, meaning we must have other laws to support the practicalities of CAT. For example, there are generally a lot of countries that do not have specific laws pertaining to domestic violence. This, in many countries, goes under the radar as it is seen to be something that belongs to the private sphere, and is not drawn into the public sphere. The Fijian Government, under the leadership of the Honourable Prime Minister, put in place the Domestic Violence Decree 2009 to provide greater protection from domestic violence by specifically addressing domestic violence offences which were previously prosecuted as common assault under the repealed Penal Code.

 

  1. In Fiji’s case previously, this common assault was what you would call a reconcilable offence. If two parties got together, they could reconcile. Hence, you would find many cases where the laws do not actually support a person’s ability to have the confidence to bring that complaint in the first place. Many of these complaints fell through the cracks. Indeed, if it was brought up at a prosecutorial level, there was a lot of social and economic pressure to reconcile. To have a specific law to deal with domestic violence, it addresses a wider spectrum of people, who one can argue,would go through torture in their everyday lives.
  2. Similarly, again under the Bainimarama Government in 2013, we brought about the Child Welfare Decree 2010. Under this Decree, it is now mandatory for a doctor or any other person who provides a particular service or social worker, to report if they suspect that a child is being abused. In many instances, a child goes to the doctor with all sorts of bruises and sometimes the excuse is that the child fell down the stairs or walked into a door. But if the doctor believes that the injuries are not commensurate with what is being said, they now have a legal obligation to report it.

 

  1. Similarly, we have a new bill in place before the Fijian Parliament called the Information Bill.In many countries, this is referred to as ‘freedom of information’. This Bill provides a person with access to information for records pertaining to them specifically.

 

  1. We similarly ratified the United Nations Convention against Corruption. All these laws combine to create anenvironment that makes complaint mechanisms a lot more conducive to individuals and various institutions.

 

  1. Participation and the ability to be able to access information are very critical. It is not a straitjacket. It is not simply a question of ratifying CAT. We need to have various laws that would help build up a culture and ethos in bringing about change – as the Honourable Prime Minister has highlighted – and this is very critical.

 

  1. Unfortunately, in many casesfor a number of years,there has been a lack of investment ininterrogation methodologies and in the training of police officers in areas such asforensic technology.We found, for example, when we came into Government, that many Police departments did not have proper funding for even fingerprintingor DNA analysis. There is, of course, pressure to bring the perpetrators of crimes that have gained a lot of public attention to justice quickly, andpolice officers can feel pressured to use techniques that arenot recommended. This is not an excuse but it is a practicality that we must be able to address. And, of course, if the lawsare not commensurate with the level of violence, then we have problems.

 

  1. In Fijifor example, for a number of years previously, we have had issues with domestic violence and sexual assault. And frankly, the laws then were abit of a joke. The sentencing then,that had been handed down had been considered by the public to be abit of a joke. So we have amended the laws and removed the old Victorian rules pertaining to corroboration in relation to rape. We have replaced the previous Penal Code which was almost 120 years old with the Crimes Decree 2009, which is a lot more modern and removed corroboration and gender specific offences. All these things are very critical and go towards complementarity. Ladies and gentlemen, when that culture is built within the police it does take some time to remove it. One of the quickest ways to do that of course is to give them access to technology and training.

 

  1. Again, I would like to echo the Honourable Prime Minister’s appreciation to the British Government and also the European Union for providing Fiji with much needed support. And indeed recognising the critical need to have training to build strong and long-lasting institutions, which invariably contributes to building and maintaining the rule of law.

 

  1. The Honourable Chief Justicehas also implemented in the court system the video recording of court proceedings and is working together with the Fiji Police Force to implement a project for the video interviewing of all suspects in custody.

 

  1. Early this year, representatives from the Office of the Attorney-General, the Legal Aid Commission and the Fiji Law Society met with representatives of the Geneva Bar Association in Switzerland and with the Legal Aid Commission in the United Kingdom to see how the right to counsel could be effectively implemented through a First Hour Procedure. This ensures the presence of a legal practitioner within the first hour of custody to explain to the suspecthis or her legal rights.

 

  1. TheFirst Hour Procedure and the video recording interviews initiatives were presented by the Honourable Chief Justice during the 33rd Session of the Human Rights Council held from 13 to 30 September 2016, where Fiji’s Permanent Mission to the United Nations and other Offices in Geneva co-hosted a side event with APT

 

  1. We would also like to highlight that the office the Honourable Chief Justice is currently working on a draft Practice Direction intended to guide both the judicial officers and the prosecution on the expected requirements for the admission of video recorded statements.

 

  1. Ratification of CAT has also opened avenues for discussions on possible reviews of Police and Corrections Services manuals and upgrading cell facilities at all police stations and remand centres throughout Fiji.

 

  1. The ratification of this important human rights instrument further reinforces Fiji’s recognition of the equal and inalienable rights of all people which is derived from the inherent dignity of the human person.

 

  1. Sometimes with the ratification of conventions, we tend to get caught up with the bureaucracy of it and seem to be more focused on the reporting side. The main reason for ratifying CAT is the practical implementation of the provisions of this Convention.We are not saying that reporting is not important.But we must remember to focus on the implementation – making sure that the values outlined in CAT are actually put in place on the ground; and that we provide for human dignity, which is a concern for all of us.

 

  1. Ratification also opens doors to bilateral and multilateral assistance and cooperation from various StatesParties to the Convention and other organisations such as the APT and Convention against Torture Initiative.

 

  1. It also contributes to Sustainable Development Goal 16, which is to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

 

  1. Ladies and gentlemen, we would like to thank you all for your participation and in particular, thank the Honourable Prime Minister who has a very busy schedule ashe just returned from overseas, to be here with us today.This goes to show the importance that the Fijian Government and Fijian leadership is placing in respect of our obligations to the core international conventions and our quest to also remedy many of the issues of the past and to start on a clean slate. And we look forward to our development partners’ assistance.

 

  1. It is also very critical to highlight that this is not a blame game; it is about assisting each other to be able to help achieve those objectives. The issue is not about turning the Convention into something political, but about bringing home the point that it is about individuals who may have suffered and how we can stop that.

 

  1. Ladies and gentlemen, thank you very much for being here. We would like to urge those Pacific Island Countries that have not ratified CAT to consider ratification.And we would also like to offer our assistance to APT in facilitating any regional meetings or workshops that you may want to have in the future and also on a bilateral basis. We are willing to help other Pacific Island Countries that require assistance.

 

  1. To those who have not visited Fiji before,bula vinaka once again and as the Honourable Prime Minister has said, pIease enjoy the wonderful scenery and our Fijian hospitality. And I wish you all a successful workshop.

 

Vinaka.

 

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