PROMOTION OF RECONCILIATION, TOLERANCE AND UNITY BILL 2005

ARRANGEMENT OF CLAUSES

Preliminary
Establishment, Objectives, Functions and Powers of Commission
Procedures for Meetings Aand Hearings of Commission and Committees
Applications for Relief
Establishment, Objective, Functions and Powers of the National Council on Promotion of Reconciliation, Tolerance and Unity
Miscellaneous

A Bill for an Act -

TO PROVIDE FOR AND REGULATE THE PROCESSES OF PROMOTING EFFECTIVE RECONCILIATION AMONGST THE PEOPLE OF THE FIJI ISLANDS FOLLOWING THE POLITICAL AND CIVIL UNREST AND EVENTS OF 2000;
TO ESTABLISH A RECONCILIATION AND UNITY COMMISSION AND TO PROVIDE FOR ITS COMPOSITION, POWERS, FUNCTIONS AND PROCEDURES;
TO ESTABLISH A PROMOTION OF RECONCILIATION, TOLERANCE AND UNITY COUNCIL AND TO PROVIDE FOR ITS COMPOSITION, OBJECTIVE, POWERS, FUNCTIONS AND PROCEDURES;
TO PROVIDE FOR AND REGULATE THE PROCESSES OF PROMOTING RECONCILIATION, UNDERSTANDING, TOLERANCE AND GENUINE UNITY AMONG THE PEOPLE OF THE FIJI ISLANDS; AND FOR RELATED MATTERS.

Preamble -

WHEREAS by the Deed of Cession of 1874 the British Crown had guaranteed to the tribes and individual indigenous people of Fiji through their Chiefs the protection of their legal rights and interests as the indigenous community of the Fiji Islands;
AND WHEREAS the preambles to the 1970, 1990 and 1997 Constitutions of the Republic of the Fiji Islands have captured the development of the Fiji Islands into an independent sovereign state which is committed to the promotion of a peaceful and stable multiethnic and multi-cultural co-existence among its people;
AND WHEREAS there have been expressions of deep concern and resentment among members of various ethnic communities in the Fiji Islands about uncertainties surrounding various aspects of their rights, their interests and their future as citizens of the Fiji Islands;
AND WHEREAS the political events of 1987 and 2000 were occasioned by a widespread belief among the indigenous Fijians that the 1970 and 1997 Constitutions were inadequate effectively to protect and preserve their rights and interests, their values, traditions, customs, way of life and economic wellbeing;
AND WHEREAS the people of the Fiji Islands are desirous of bridging the past of a divided society characterised by political instability founded principally on a legacy of inter-ethnic distrust an , fear of the uncertainties, and a future founded on the recognition of its' adapted principles of human rights, democracy and peaceful coexistence,

BE IT THEREFORE ENACTED by the Parliament of the Fiji Islands - PART I - PRELIMINARY

Short title and commencement
1. This Act may be cited as the Promotion of Reconciliation, Tolerance and Unity Act 2005.
2. This Act comes into force on a date appointed by the Minister by notice in the Gazette.
3. Subject to subsection (2), the Minister may appoint different dates for the coming into force of different sections or parts of the Act.
Interpretation
In this Act, unless the context otherwise requires -

"act associated with a political objective"

means an act or omission the commission or omission of which is directly related to or made for the fulfilment of a political purpose, belief or objective during the designated period;
"amnesty"

means an act of forgiveness granted by the President for the President for the purpose of excusing and erasing from legal memory the illegality of an act or omission committed in association with a political objective during the designated period;
"Amnesty Committee"

means the Committee established under section 9;
"Commission"

means the Reconciliation and Unity Commission established under section 4;
"Committee"

means a special purpose Committee established by the Commission under section 7;
"Council"

means the National Council on Promotion of Reconciliation, Tolerance and Unity established by section 23;
"designated period"

means the period of political and civil unrest from 19th May 2000 to 15th March 2001;
"human rights"

means the rights and freedoms protect ed under Chapter 4 of the Constitution and includes other rights and freedoms recognised or conferred by common law, customary law, and any international, standards or Conventions ratified by the Fiji Islands;
"gross violation of human rights"

means the extent of excessive violation of human rights declared by the Commission as having been suffered by a victim during the designated period;
"National Policy"

means the National Policy on Reconciliation, Understanding, Tolerance and Unity formulated and approved under section 24;
"reparation"

means any measure recommended by the Victims and Reparation Committee and approved by the Commission aimed at making amends to a victim of gross human rights violations;
"serious criminal offence"

means a criminal offence not directly associated with any political purpose or objective committed during the designated period;
"victim"

means a person who, individually or as part of a group, has suffered physical or mental harm, including emotional suffering, or economic loss as a result of acts, omissions or offences committed for some political purpose or objectives by persons or groups during the designated period;
"Victims and Reparation Committee"

means the Committee established under section 8.
Objects of this Act
1. The objects of this Act are -
  1. to provide for the establishment of a Reconciliation and Unity Commission and a Promotion of Reconciliation, Tolerance and Unity Council, their respective compositions, powers, functions and procedures;
  2. to provide for mechanisms, measures, criteria and procedures for the promotion of reconciliation and the fostering of understanding, tolerance and unity of all people of the Fiji Islands;
  3. based on the principle of restorative as opposed to retributive justice, to provide for measures, mechanisms, criteria and procedures for granting reparation to the victims of gross violations of human rights and civil dignity during the designated period;
  4. based on the principle of restorative as opposed to retributive justice, to provide for mechanisms, criteria and procedures for the granting of amnesty to persons who make full disclosures of all facts relevant to acts associated with a political, as opposed to a purely criminal, objective committed during the designated period;
  5. to provide for measures and mechanisms aimed at promoting and fostering tolerance and genuine unity among the people of the Fiji Islands, and the making of recommendations thereto aimed at preventing the perpetration of politically-motivated violations of human rights in future.
2. In this section "restorative justice" means -
  1. redefining crime by shifting the primary focus from being an offence against the State to being a violation against human beings, as injury or wrong to a person;
  2. reparation aimed at a process of reconciliation between victims and offenders and their families and the restoration of human dignity within the community through understanding and not vengeance, reparation and not retaliation, forgiveness and not victimisation;
  3. encouraging victims and offenders and the community at large to be directly involved in resolving conflict with professional facilitators; and
  4. supporting a criminal justice system that aims at the offenders' accountability through full participation of victims and offenders and making good and putting right what is wrong.

PART 2 - ESTABLISHMENT, OBJECTIVES, FUNCTIONS AND POWERS OF COMMISSION

Establishment of Reconciliation and Unity Commission
1. This section establishes the Reconciliation and Unity Commission consisting of not fewer than 3 and not more than 5 members whose members, to be called Commissioners, who shall be appointed by the President on the advice of the Prime Minister after the Prime Minister has consulted the Leader of the Opposition.
2. The President shall, on the advice of the Prime Minister, designate one of the Commissioners as the Chairperson and another as the Vice-chairperson.
3. Unless otherwise specified in the instrument of appointment, a Commissioner may hold office for a term of up to 3 years and is eligible for reappointment.
4. No serving member of either House of Parliament or holder of a constitutional office is eligible for appointment as a Commissioner.
5. A Commissioner may at any time resign as Commissioner by tendering his or her resignation in writing to the President.
6. The President may remove a Commissioner from office on the grounds of misconduct, incapacity or incompetence on the advice of the Prime Minister after he or she has consulted Cabinet.
7. The President shall, on the advice of the Prime Minister after the Prime Minister has consulted the Leader of the Opposition, appoint a person to replace a Commissioner who has resigned, is removed or has died, and such replacement Commissioner shall serve out the balance of the unexpired term of such Commissioner who has resigned, been removed or died.
8. In the absence of the Chairperson, the Vice-chairperson shall perform his or her duties, powers and functions; and if both the Chairperson and the Vicechairperson are absent, then the other Commissioners shall from among their number nominate an Acting Chairperson for the duration of such absence or incapacity.
9. The Commission is constituted as a statutory body, but does not have a perpetual existence.
Objectives of Commission
1. The objectives of the Commission shall be to promote reconciliation and unity amongst the people of the Fiji Islands in a spirit of tolerance and understanding by -
  1. assessing, by itself or through its relevant special purpose Committee, admissions and voluntary disclosures received from any person relating to the causes, nature and extent of the violations of human rights committed during the designated period, including the antecedents, circumstances, factors and context of such violations as well as the perspectives and motives of both the perpetrators and victims of such violations;
  2. holding, by itself or through its relevant special purpose Committee, hearings for the purpose of carrying out such assessments;
  3. facilitating the restoration of human rights and civil dignity to victims of violations of such human rights and civil dignity by granting them an opportunity to relate their own accounts of such violations of which they were victims;
  4. granting reparation measures or awarding compensation to any person whose claims as victims of gross human rights violations during the designated period are established;
  5. facilitating the granting of amnesty by the President to persons who make full voluntary disclosures of all facts relevant to acts or omissions constituting or causing a violation of human rights associated with a political objective committed during the designated period; and,
  6. compiling full reports on such assessments and facts relevant to them accompanied by recommendations to the President and the Minister on measures to prevent future gross violations of human rights.
2. In the performance of its responsibilities under this section, the Commission may be guided by principles which include those contained in the relevant provisions of Chapter 2 (Compact) and Chapter 4 (Bill of Rights) of the Constitution or any views and recommendations received from the Human Rights Commission established under section 42 of the Constitution.
Functions of Commission
The functions of the Commission shall be to achieve its objectives, and for that purpose the Commission shall, by itself or through its relevant special purpose Committees -
1. facilitate and, where necessary, initiate or coordinate inquiries into -
  1. politically-motivated violations of human rights during the designated period;
  2. the nature, causes and extent of such violations of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations;
  3. whether such violations were the result of deliberate planning on the part of any movement or political organisation;
  4. whether such violations were the result of recklessness by the State or a State organ in ignoring or in failing to seek or heed security advice;
  5. accountability, political or otherwise, for any such violations;
2. facilitate, initiate or coordinate the gathering of information from any person or source, including persons claiming to be victims of such violations;
3. facilitate the granting of amnesty in respect of acts associated with political objectives, by receiving from persons desiring to make a full disclosure of all facts relevant to such acts, applications for the granting of amnesty in respect of such acts, and by publishing in the Gazette decisions granting amnesty;
4. determine the nature and extent of any act aimed at causing destruction or loss of documentary and other evidence of such violations;
5. prepare a full report on its inquiries, assessments, findings and decisions with-regard to the granting of reparation or the awarding of compensation to any person;
6. prepare a full report on its inquiries, assessment, findings and recommendations to the President with regard to the granting of amnesty to any person;
7. prepare a full report on its enquiries, assessment, findings and recommendations with regard to the development of measures and policies, the creation of institutions, or the adoption of administrative or legislative measures aimed at preventing the commission of politicallymotivated gross violations of human rights in future.
Powers of Commission
In order to achieve its objectives and to assist the Commission in the performance of its functions, the Commission shall have the power -
1. to constitute in accordance with this Act a Victims and Reparation Committee, an Amnesty Committee and other, special purposes committees;
2. in addition to powers contained in section 12, to conduct any inquisitorial or other inquiries or hearing it may deem necessary for the proper performance of its functions;
3. to grant reparation and to award compensation to any person whose claims for such have been established after due enquiry and determination under this Act;
4. to recommend to and advise the President on the granting of amnesty to any person whose application for such has been fully inquired into by the Amnesty Committee;
5. to make recommendations to the President on actions and measures aimed at preventing the commission of politicallymotivated gross violations of human rights in the Fiji Islands in the future; and
6. to make any decision or to do anything which is directly connected or conducive to the proper performance of its functions or the functions of any its committees.
Victims and Reparation Committee
1. This section establishes the Victims and Reparation Committee consisting of -
  1. a retired judge or a legal practitioner who is qualified for appointment as a judge, as the chairperson; and
  2. 2 other members, appointed by the Commission with the approval of the Minister.
2. The functions of the Victims and Reparation Committee are to inquire into any application referred to it by the Commission -
  1. from any person claiming to be a victim of any politicallymotivated gross violation of human rights during the designated period; and
  2. from any such victim seeking reparation.
3. After hearing an application under subsection (2), the Committee shall prepare for consideration and decisions by the Commission a full report containing its findings and recommendations.
Amnesty Committee
1. This section establishes the Amnesty Committee consisting of -
  1. a retired judge or a legal practitioner who is qualified for appointment as a judge, as the chairperson; and
  2. 2 members, appointed by the Commission with the approval of the Minister.
2. The function of the Amnesty Committee is to inquire into any application for amnesty from any person referred to the Committee by the Commission in respect of any act or omission committed or omitted by the applicant in connection with any politically-motivated gross violation of human rights during the designated period.
3. After hearing an application under subsection (2), the Committee shall prepare and submit to the Commission a full report containing the Committee's findings on which the Commission shall make recommendations to the President with advice on whether or not an amnesty should be granted to any person under this Act.
Independence and period of operation of Commission
1. The Commission shall operate as an independent Council and shall not be subject to the control or direction of any other authority.
2. The Commission shall, in relation to its functions concerning the granting of amnesty and reparation pursuant to Part IV, operate for a period of not longer than 18 months commencing from the date of appointment of the Commissioners pursuant to section 4.
3. The Minister may, by notice in the Gazette, extend the period of operation of the Commission specified in subsection (2) for up to 6 months.
4. Each Commissioner and member of the staff of the Commission shall function without bias or political interference and shall be independent and separate from any political party, government, administration or any other functionary or body directly or indirectly representing the interests of any such entity.
5. It is an offence for any Commissioner, former Commissioner, member of staff or former member of staff of the Commission or any person acting on behalf of the Commission to make private use of or profit from any confidential information gained as a result of his or her work in the Commission, or divulge such information to any other person except in the course of his or her functions as a member of staff of the Commission or otherwise as required by law . Any contravention of this provision by a serving Commissioner or member of staff may result in dismissal.
Oath for Commissioners
1. Upon appointment, each Commissioner shall make before the President the following oath (or solemn declaration).
  
  "I swear (solemnly declare) that in carrying out the functions entrusted to me as a member of the commission, I will perform my duties independently and impartially . I will, at all times, act in accordance with the dignity that the performance of my functions requires.
  "I renounce the unlawful use of violence; and in the performance of my functions will seek to promote reconciliation, national unity and peace.
  "And I will carry out my functions without discrimination on any ground including the prohibited grounds of discrimination prescribed under the constitution."
2. After having completed the oath or the solemn declaration orally, each Commissioner shall submit a signed copy of the declaration to the President with a copy to the Minister.

PART 3 - PROCEDURES FOR MEETINGS AND HEARINGS OF COMMISSION AND COMMITTEES

Meeting procedures
1. Every meeting of the Commission or any of its Committees shall be held at a time and place determined by the Chairperson or, in his or her absence, by the Vice-chairperson or by an Acting Chairperson.
2. The Commission and any of its Committees shall have the power to determine the procedure for its meetings, including the manner in which its decisions shall be taken.
3. The Commission may make procedural rules regarding certain aspects of its functions and functions of its committees, as it deems necessary in the 1 3 public interest, and such rules shall be published in the Gazette for the information of the public.
4. The Commission and its Committees shall keep and maintain records of their proceedings.
5. The quorum for any meeting of the Commission and any of its committees shall not be less than half of the total membership of the Commission or the Committee.
Inquiry-related powers and limitation period
1. In the performance of its functions under section 13, the Commission has the following powers -
  1. to convene a hearing for any purpose associated with its inquiry;
  2. to invite persons to attend its hearing where it appears that such persons have information relevant to any of its inquiry;
  3. to order a person to appear before its inquiry to answer questions where it appears that the person may have information relevant to its inquiry;
  4. to require that a person attending its hearing give their statement or answer under oath or affirmation and to administer such oath or affirmation;
  5. to request that a person in possession of, or who has custody or control over, any object or item (including documents) it considers is relevant to its inquiry, produce such object or item to allow the Commission to inspect it or retain custody over it for a reasonable period of time;
  6. to order that a person in possession of, or who has custody or control over, any object or item (including documents) that it considers is relevant to any of its inquiry, produce such object or item to allow the Commission to inspect it or retain custody over it for a reasonable period of time: Provided that any object or item that has been so removed, shall be returned as soon as possible after the purposeof such removal has been accomplished;
  7. to request information from relevant authorities or persons in Fiji; and
  8. to request information from the relevant authorities of another country and to gather information from victims, witnesses, public officers and others in other countries, if it considers that such information is necessary for the conduct of its enquiries.
2. No application for declaration as a victim, for reparation or for amnesty may be accepted by the Commission unless made within 3 months of the coming into force of this Act.
3. Upon receiving the application, the Commission must ensure that the application is heard and determined in accordance with this Act, as soon as practicably possible, and in any event within 12 months from the date of receiving the application, subject to any extension granted by the Commission.
Public hearings
1. Subject to the provisions of this section, the hearings of the Commission shall be open to the public.
2. If the Commission, in relation to any hearing it has convened, is satisfied that -
  1. it would be in the interests of justice; or
  2. there is a likelihood that harm may ensue to any person as a result of the proceedings being open,
  it may direct that such proceedings be held behind closed doors and that the public or any category thereof shall not be present at such proceedings or any part thereof: Provided that the Commission shall permit any victim who has an interest in the proceedings concerned, to be present.
3. Where the Commission directs that the public or any category thereof shall not be present at any proceedings or part thereof, the Commission may -
  1. direct that no information relating to the proceedings, or any part thereof held behind closed doors, shall be made public in any manner;
  2. direct that no person may, in any manner, make public any information which may reveal the identity of any witness in the proceedings;
  3. give such directions in respect of the record of proceedings as may be necessary to protect the identity of any witness.
4. The Commission shall allow for special measures be taken in hearings which involve testimonies from special groups of victims, such as women and children, and such hearings may allow for accompaniment of victims by relevant victim support workers.
5. The Commission shall endeavour to publicise, by all available means, the location and timing of hearings convened by the Commission to allow interested parties to participate in the hearing.
Applicability of privilege
1. No person who is invited or required to come before the Commission as witness may be compelled to incriminate himself or herself, and every such person shall be informed of such right. If at any time it appears to the Commission that a question asked of a witness is likely to elicit a response that might incriminate the witness, the Commission shall advise the witness of his or her right not to answer the question.
2. No witness may be compelled to incriminate the witness' spouse or partner, parents, children, or relatives within the second degree.
3. Unless the person who has provided information consents to the disclosure, a duly ordained priest is not obliged to answer questions concerning information revealed during the course of religious duties rendered by that priest.
4. Unless a client consents to the disclosure, a lawyer shall refuse to answer questions concerning information provided by a client.
5. Unless the patient consents to the disclosure, a medical professional shall refuse to answer questions in relation to information provided by a patient in the course of delivery of medical services to such a person. For the purposes of this seciion, the term 'medical professional' includes without limitation, medical doctors, psychiatrists, psychologists, counsellors and their professional assistants.
6. No statement or admission made at a hearing of any application under this Act and no record of any evidence taken in any proceeding before the Commission or any committee established under this Act is admissible as evidence in any court or other legal proceedings.
Legal representation
1. A person who has been invited or required to appear before the Commission may be represented by a legal representative with the leave of the Commission, if the Commission considers that it is in the interests of justice that a person should be so represented.
2. The Commission may, in consultation with the Solicitor General, appoint a legal practitioner as counsel assisting, to assist the Commission in the adducing of evidence during any hearing before the Commission.
3. If in the opinion of the Commission there is a significant possibility that a person will incriminate himself in evidence given to the Commission, it shall require that such person is represented by a legal representative, unless such person declines to be so represented.

PART 4 - APPLICATIONS FOR RELIEF

Applications for declaration as victim
1. A person who claims to have been subjected to a gross violation of human rights during the designated period may lodge with the Commission a claim for the same in the prescribed form.
2. Upon receiving such an application, the Commission may -
  1. itself inquire into and determine the application; or
  2. refer the application to the Victims and Reparation Committee to inquire into and determine the application together with any application from the same applicant for reparation in accordance with section 9.
3. If the Commission is satisfied from its own enquiry or on the findings and recommendations of the Victims and Reparation Committee that the applicant is a victim of a gross violation of human rights, the Commission shall declare through a certificate in the prescribed form that the applicant is a victim for the purpose of this Act.
4. A certificate issued by the Commission under subsection (3) must be forwarded to the Committee for the purposes of hearing any application for reparation from the same applicant.
Applications for reparation
1. Any person who claims that he or she has suffered harm or damage to property or personal injury or death as a result of a gross violation of his or her human rights may apply to the Commission in the prescribed form for reparation: Provided that where the victim has died, the application may be made by the deceased's spouse or any of his or her children, or if there is no spouse or child, the personal representatives of the estate of the deceased.
2. Claims made for reparation under this section shall relate only to the legal rights of the victim and shall not extend to his or her dependents.
3. In dealing with any application for reparation made under this section, the Commission shall have regard to any findings in respect of any inquiry or assessment already made in relation to any claim by a victim of a gross violation of human rights arising out of the same act or omission.
4. Upon receiving an application, the Commission may -
  1. dismiss the application, if it is satisfied that the application is trivial, frivolous or vexatious; or
  2. refer the application to the Victims and Reparation Committee for hearing of the claims in accordance with section 9.
5. In dealing with any application for compensation under this section, the Victims and Reparation Committee shall be guided by any limitations prescribed by regulations made by the Minister and endorsed by resolution of the House of Representatives: Provided that no compensation awarded in respect of any claim for reparation under this Act shall in respect of the death of or personal injuries to a person, exceed the maximum amount which may be paid to such a claimant under Part II of the Workmen's Compensation Act.
6. Upon receiving the report containing the findings and recommendations of the Victims and Reparation Committee, the Commission shall assess and consider the report, its findings and recommendations for the purpose of determining whether or not the applicant is to be granted reparation.
7. Notwithstanding the provisions of section 3, any grant of reparation made by the Commission under subsection (4) shall be enforceable against the State.
8. In calculating the total compensation payable to a claimant under this section, the Commission shall take into account any compensation already claimed, received or due to be paid to the claimant under any Court judgment, any insurance cover, any employment arrangement, any scheme of assistance available from Government, or under any other law.
9. Details of the grant of reparation or award of compensation made by the Commission shall be submitted to the President within 14 days after such decisions are made by the Commission.
10. Upon receiving the report of the Commission pursuant to subsection (6), the President shall submit the same to the Minister for implementation in accordance with this Act.
11. In this section -
  
  "reparation"
  
  includes ex gratia payment, restitution, rehabilitation, recognition or any form of compensation;
  "victim"
  
  means a person who suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights as a result of gross violation of human rights or as a result of an act associated with a political objective for which amnesty has been granted.
Guiding principles
1. When dealing with persons who claim to be victims of gross violations of violations of human rights during the designated period, the Commission and any of its Committees shall be guided by the following principles -
  1. that claimants shall be treated with respect and dignity;
  2. that claimants shall be treated equally and without infringement of any of the grounds of prohibited discrimination set out under section 38 of the Constitution;
  3. that procedures adopted by the Commission and every Committee appointed by it shall be expeditious, fair, inexpensive and accessible, with appropriate respect for privacy where requested, and in the language of the claimant's choice;
  4. that any request for information made by an alleged victim to better inform him or her of his or her rights and about the redress sought shall be given by the Commission and its relevant Committee without undue delay;
  5. that claimants shall be allowed every opportunity to be heard fully regarding his or her claims and information or evidence relating thereto;
  6. that regard shall be given, where possible and appropriate, and with the consent of the parties, to the adoption of informal mechanisms for the resolution of disputes, including mediation, arbitration and any other procedure provided for by the customary laws and practices of the parties to facilitate reconciliation and redress for victims.
2. Where the Commission is satisfied that a gross violation of human rights has been committed against a claimant, the Commission shall issue a certificate declaring the claimant as a victim of a gross violation of human rights for the purpose of this Act.
Special Fund
1. The Minister may, in consultation with the Minister for Finance, establish a Special Fund into which shall be paid -
  1. all money appropriated by Parliament for the purpose of the Fund;
  2. all money donated or contributed to the Fund or accruing to the Fund from other sources.
2. There shall be paid from the Special Fund all amounts payable to victims by way of compensation in accordance with section 18.
3. Any money of the Special Fund not required for immediate use may be invested with a financial institution approved by the Minister of Finance, and may be withdrawn when required.
4. The management and control of money in the Special Fund shall be vested in the Ministry responsible for this Act, and shall for all other purposes be governed by the provisions of the Finance Management Act of 2004.
5. The Auditor General shall audit the Special Fund in accordance with the Audit Act.
6. Details of the names and the nature and amount of such reparations or compensation shall be published in the Gazette.
Applications for amnesty
1. Any person who wishes to apply for amnesty in respect of any act or omission committed during the designated period, on the ground that it related to an act associated with a political objective, and not purely criminal in context, shall submit his or her application to the Commission in the prescribed form.
2. In dealing with applications for amnesty, the Commission shall give priority to applications from persons in custody.
3. The Commission may, where necessary, require an applicant for amnesty to perfect his or her application.
4. In this section, an
  
  "act associated with a political objective"
  
  means an act or omission the commission or omission of which is directly related to or made for the fulfilment of a political purpose or objective.
5. If the act or omission which is the subject of an application for amnesty under this section constitutes the ground of a claim in any pending civil proceedings, the court before whom the civil claim is pending may at the request of the Commission, suspend those civil proceedings pending the consideration and disposal of the application for amnesty, if the court is satisfied that the other party to the civil action has been notified.
6. If an applicant for amnesty is charged with any offence constituted by the act or omission to which the application relates, or is standing trial upon a charge of having committed such an offence, the Commission may request the court to postpone the criminal proceedings pending the consideration and disposal of the application for amnesty.
7. Upon receiving an application for amnesty, the Commission may -
  1. reject the application if the it is trivial, frivolous or vexatious or that it relates to an act which is not connected with a political objective or on the ground that it is an act committed outside the designated period; or
  2. refer the application to the Amnesty Committee to hear the application in accordance with section 9.
8. The decision of the Commission rejecting an application for amnesty shall be immediately conveyed in writing by the Commission to any court or Council which had suspended any criminal or civil action before it pending tie disposal of the application for amnesty: Provided that no adverse inference shall be drawn by the court or Council concerned from the fact that the proceedings which were suspended pending a decision on an application for amnesty are subsequently resumed.
9. Upon receiving the report and the findings of the Amnesty Committee, the Commission shall prepare its report and findings and shall recommend by way of an advice to the President that amnesty be granted, if the Commission satisfied that -
  1. the act or omission which is the subject of the application is one directly associated with a political motive or objective;
  2. the act or omission was committed during the designated period;
  3. the act or omission was committed in the course of or as part of a political uprising, disturbance or event or in relation thereto;
  4. the act or omission was committed on behalf of a political group, organisation or body of which the applicant was a member, an agent or supporter; and
  5. neither the act nor the omission was committed for personal gain, out of personal malice, ill-will or spite.
10. Upon receiving the report of the Commission the President shall act on the advice of the Commission on whether or not to grant the amnesty applied for, and the granting of an amnesty shall by order of the President be published in the Gazette setting out the full names of any person to whom amnesty has been granted.
11. No person who has been granted amnesty in respect of an act or omission shall be criminally or civilly liable in respect of such act or omission and no body, group or organisation or the State shall be liable either directly or vicariously for any such act or omission: Provided that an amnesty so granted shall not -
  1. have any influence upon the criminal liability of any other person contingent upon the liability of the person so granted with amnesty;
  2. prejudice the granting of reparation or compensation to a victim of gross violations of human rights arising out of the same acts or omission.
12. Any person who has been granted amnesty in respect of an act or omission in respect of which the person has been convicted and is serving a term of imprisonment shall be released from prison forthwith on a warrant issued by the President.
13. An amnesty granted by the President in respect of an act or omission in relation to which the person has already served his or her sentence, the amnesty shall have the effect of erasing the conviction: Provided that this provision shall not entitle a person to claim reparation or compensation in respect of the term of imprisonment already served.
14. The grant of an amnesty by the President shall be a legal bar to any other prosecution based on the same facts upon which the amnesty was determined and granted.
15. Every special purpose committee appointed by the Commission or established under this Act shall apply, with necessary modifications, the procedures which the Commission is empowered to adopt in the performance of its functions or which the Commission may prescribe, including the gathering of information, the assessment of such information, the recording of such information, and the compilation of reports containing findings and recommendations connected thereto.

PART 5 - ESTABLISHMENT, OBJECTIVE, FUNCTIONS AND POWERS OF THE NATIONAL COUNCIL ON PROMOTION OF RECONCILIATION, TOLERANCE AND UNITY

Objective of Council
The objective of the Council is to promote unity among the people of the Fiji Islands through genuine reconciliation, tolerance and understanding which transcends the climate of disunity and divisions of the past.
Establishment and membership of Council
1. This section establishes the National Council on Promotion of Reconciliation, Tolerance and Unity consisting of the following members -
  1. an independent Chairperson;
  2. the Chief Executive Officer for the Ministry responsible for Reconciliation, as the Vice Chairperson;
  3. the Chief Executive Officer for the Ministry responsible for Education;
  4. two members nominated by the Fiji Council of Churches;
  5. a member to represent other Christian denominations;
  6. two members to represent the Hindu religion;
  7. one member to represent the Muslim religion nominated by the Fiji Muslim League;
  8. three members to represent each of the 3 traditional Fijian confederacies nominated by the Great Council of Chiefs;
  9. three members to represent the Indian Community nominated by their National Advisory Council;
  10. a member to represent minority communities nominated by their National Advisory Council;
  11. two members nominated by the non-governmental organisations;
  12. a member to represent women nominated by the Minister responsible for Women;
  13. a member to represent youth nominated by the Minister responsible for Youth; and
  14. two members who have relevant qualifications, experience and expertise in reconciliation, tolerance and unity matters.
2. The Chairperson shall be appointed by the Minister, and the members of the Council set out under paragraphs (d) to (n) under subsection (1) shall be appointed by the Minister on the nomination of the bodies or groups to be represented by such members, and such members are eligible for reappointment.
3. The members appointed under subsection (2) shall be appointed on the basis of their demonstrated commitment towards and respect for the principles of human rights and genuine unity in Fiji.
4. A person appointed or has served as a member of the Commission under section 4 is eligible for appointment as a member of the Council.
5. If the Chairperson and the Vice-chairperson are absent, the members present at a meeting may elect a member to preside at that meeting.
6. A member appointed under paragraphs (a) and (g) to (o) may be appointed for a term of up to 3 years.
7. The Council may invite any person to attend any of its meetings for the purpose of providing expert advice to it on matters relating to its objective and functions.
8. Part 3 on procedures applies, with necessary modification, to the Council.
Functions of Council
1. The functions of the Council are -
  1. to initiate, develop and adopt a National Policy on the promotion of reconciliation, understanding, tolerance and unity for approval by the Cabinet;
  2. to carry out any study, inquiry and research or to liaise with any person as and when the Council deems appropriate and necessary, for the formulation of the National Policy;
  3. to facilitate, promote and coordinate the implementation of the National Policy approved by Cabinet and the process of reconciliation, understanding, tolerance and unity through means which include dialogue, discussions, workshops, seminars, meetings;
  4. to facilitate, promote and coordinate public awareness and education programmes on matters and issues relating to reconciliation, understanding, tolerance and unity specified in the National Policy;
  5. to prepare and submit a report on the progress of its work to the Minister for each quarter or when required by the Minister;
  6. to advise the Minister on matters relating to the objectives and functions of the Council;
  7. to evaluate, assess and review the process of promoting reconciliation, understanding, tolerance and unity pursuant to the National Policy and to prepare a report thereon for submission to the Minister as part of the Council's quarterly reports;
  8. to facilitate the implementation of any recommendation of the Commission aimed at promoting and fostering reconciliation, understanding, tolerance and unity among the people of the Fiji Islands; and
  9. to perform any other function assigned to it in this Act or under any other written law.
2. In the performance of its functions, the Council shall have regard and shall give priority to the application of cultural, customary and traditional means of promoting and achieving unity in a spirit of tolerance and understanding.
Powers of Council
1. to summon or require any person to provide information or documents required by the Council for the purpose of performing its functions;
2. to facilitate and coordinate the making of arrangements and agreements amongst individuals or groups for the purpose of promoting tolerance, understanding and unity amongst the people of the Fiji Islands or parts thereof; and
3. to regulate and prescribe its procedures or guidelines relating to the processes of reconciliation, tolerance, understanding and unity pursuant to its functions and powers under this Act.
Independence of Council
In the performance of its functions and powers, the Council shall operate as an independent body but it shall be subject to any special or general policy directions issued by the Minister under section 32.
Committees
The Council may appoint special purposes committees for the purposes of carrying out some of its functions. Regional promotion of reconciliation, understanding, tolerance and unity. Where it is necessary to undertake promotion of reconciliation, understanding, tolerance and unity in any specified area, the Council may initiate or cause to be initiated the process of promoting reconciliation, understanding, tolerance and unity, whether by itself or through a committee in that specified area.

PART 6 - MISCELLANEOUS

Offences
1. A person who -
  1. knowingly omits or commits an act which interferes, disrupts or hinders the performance by the Commission, the Council or any of their respective committees of any of its functions, powers and duties under this Act;
  2. performs any act aimed at improperly influencing the Commission, the Council or any of their respective committees;
  3. threatens, intimidates or improperly influences any person who has voluntarily cooperated with or is required under this Act to cooperate with the Commission, the Council or any of their respective committees; or
  4. wilfully or unlawfully discloses any information with the intention of undermining the work of the Commission, the Council or any of their respective committees, commits an offence and is liable to a fine not exceeding $5,000 or to a term of imprisonment not exceeding 2 years or both.
  commits an offence and is liable to a fine not exceeding $5,000 or to a term of imprisonment not exceeding 2 years or both.
2. Any person who -
  1. interferes in any way in a manner calculated to influence the preparation or formulation of any recommendation or findings of the Commission or any of its committees regarding an investigation;
  2. does anything calculated improperly to influence the Commission or any of its committees in respect of any matter being or to be considered by the Commission or such committee in connection with an investigation;
  3. does anything in relation to the Commission or any of its committees which, if done in relation to a court of law, would constitute contempt of court;
  4. hinders the members of the Commission or any of its committees, either individually or collectively, or any member of the staff of the Commission in the exercise, performance or carrying out of its powers, functions or duties under this Act;
  5. wilfully provides the Commission, the Council or any of its respective committees or any member thereof with any information which is false or misleading;
  6. having been summonsed under this Act, fails without sufficient cause to attend at the time and place specified in the summons, or fails to remain in attendance until the conclusion of the meeting in question or until excused from further attendance by the person presiding at that meeting, or fails to produce any article in his or her possession or custody or under his or her control;
  7. having been summonsed under this Act, without sufficient cause refuses to be sworn or to make affirmation as a witness or fails or refuses to answer fully and satisfactorily to the best of his or her knowledge and belief any question lawfully put to him or her, fails to perform any act required of him or her;
  8. discloses any confidential information in contravention of any provision of this Act;
  9. willfully destroys any evidence, article or document relating to or in anticipation of any investigation or proceedings in terms of this Act;
  commits an offence and is liable on conviction to a fine not exceeding $5,000 or to a term of imprisonment not exceeding 2 years or to both.
Act binds the Government
This Act binds the Government and all its organs and institutions.
Code of conduct
Section 156 of the Constitution and any written law giving effect to that section apply to Commissioners and members of any of its Committees established under sections 8 and 9, and to members of the Council appointed under this Act.
Power to give directions
The Minister may give general or special policy directions to the Council.
Protection of victims and witnesses
1. The Commission or a committee of the Commission shall take appropriate measures to protect the safety, dignity and privacy of any victim or witness appearing before it.
2. A person who intimidates, coerces, threatens or harasses any victim or witness appearing before the Commission or a committee of the Commission commits an offence and is liable on conviction to a fine not exceeding $10,000 or to a term of imprisonment not exceeding 4 years or to both.
Allowances for Commissioners, etc
A member of the Commission, Council or a committee appointed under this Act, other than a member who is a public officer, is entitled to allowances and other expenses, as may be fixed by the Higher Salaries Commission.
Regulations
The Minister may make regulations to give effect to the provisions of this Act.
Dissolution of the Reconciliation and Unity Commission
1. The Minister may, by regulations, provide for the dissolution of the Commission and the repeal of provisions of this Act relating to the Commission, including-
  1. whether the materials or information should be made available to the public, either immediately or when conditions and resources allow;
  2. the measures necessary to protect confidential information provided to the Commission; and
  3. the measures to provide for the ongoing safety of individuals, including witnesses who appeared before the Commission in the performance of its functions.
2. Before it is dissolved, the members of the Commission shall organise the Commission's archives and records, as appropriate, for possible future reference.

Attorney General's Chambers
5-7 Floors, Suvavou House
SUVA

April 2005