‘Alice in Wonderland’ Bill criticised for favouring offenders over victims

The University of Fiji has delivered a scathing critique of the Criminal Records Bill No. 41 of 2025, warning Parliament that the proposed law is confused, unconstitutional and dangerously skewed in favour of offenders at the expense of victims and public safety.

Presenting the University’s submissions before Parliament’s Justice, Law and Human Rights Standing Committee, Professor Shaista Shameem described the Bill as an “Alice in Wonderland” piece of legislation.

She said trying to understand the Bill felt like “falling down a rabbit hole with no hope of coming up again”.

Professor Shameem told the committee the Bill suffered from two fundamental failures: poor and confusing drafting, and a one-sided focus on the rights of offenders while ignoring the rights of victims of crime.

She said provisions stating that convicted criminals should be “respected and seen as a valued member of the community” overshadowed the need for offenders to take responsibility for the harm caused to individuals and society.

Reference to victim statements, she said, was only discretionary for magistrates considering applications for spent convictions, making the Bill “lop-sided”.

Professor Shameem reminded the committee that the purpose of law was four-fold: maintaining order and safety, providing justice and rights, resolving disputes, and establishing common standards.

Bill No. 41, she said, failed to serve any of those purposes.

She said anyone drafting such legislation should have read three key texts: The Social Contract by John Locke, Crime and Punishment by Dostoevsky, and Discipline and Punish by Michel Foucault.

She explained that Locke defined the balance between state authority and citizen rights, Dostoevsky recognised that crime remains on one’s conscience, and Foucault warned against misunderstanding discipline as a social concept.

Professor Shameem also raised serious constitutional concerns, particularly around section 33 of the Bill, which she said breached section 26 of the Constitution on equality and freedom from discrimination.

She said the Bill allowed historical larceny offences to be removed from criminal records where offenders claimed the acts were for customary purposes, despite the former Penal Code making no reference to custom in larceny offences.

“The victim also would not have accepted any customary justification from the offender otherwise it would not have been reported to the police in the first place,” she said.

Professor Shameem said section 33 was unconstitutional because it allowed only indigenous persons to apply for removal of criminal records through the Permanent Secretary, excluding minority groups.

She reminded the committee that Fiji adopted the United Nations Declaration on the Rights of Minorities in 1992 and was therefore obligated to protect cultural, political and linguistic minorities from discrimination.

She warned that the Bill risked breaching both international law and the Constitution if it excluded minority groups from eligibility under the proposed Act.

Professor Shameem outlined numerous additional deficiencies, including the interchangeable use of the terms “aboriginal” and “indigenous” without constitutional basis, vague definitions of “customary rights”, exclusion of non-kin from applications to expunge deceased persons’ records, and rehabilitation periods she said were too short for serious offences.

She criticised the omission of crimes against women from serious offence categories and warned that rehabilitation was culturally defined, yet the Bill failed to recognise diverse cultural understandings.

Professor Shameem also questioned provisions allowing magistrates discretion to order rehabilitation reports, the vague requirement of an “attempt to change”, and definitions of spent convictions that downplayed findings of guilt.

She raised concern over granting the Permanent Secretary authority to determine consent in historical homosexual offences, saying this should be a judicial function, not an administrative one.

Another troubling provision, she said, allowed offenders with expunged records to lie under oath about previous convictions.

“This is encouraging a person to lie on a holy book and sets a bad example,” she said.

Professor Shameem also questioned why the Bill exempted the Republic of Fiji Military Forces, Police, Corrections, judicial officers and intelligence services from its application.

“If, as the Bill states, a person convicted of an offence should be respected, valued and supported, then why are RFMF, Police etc exempt from participating in these admirable sentiments?” she asked.

She warned that the Bill’s drafting flaws and constitutional breaches would create a dangerous precedent and compromise the safety and security of the people of Fiji if passed in its current form.

The University recommended Parliament consider New Zealand’s Clean Slate Act instead, or adopt a system where convicted persons honestly declare their criminal records, allowing employers to assess risk appropriately.

She said such an approach would protect both employers and society without permanently excluding offenders from employment.

Professor Shameem also questioned whether Bill No. 41 had ever undergone public consultation, saying it appeared it had not.