#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Shameem: Decree No 35 a serious erosion of human rights

Saturday, September 10, 2011

Shameem: Decree No 35 a serious erosion of human rights

The Essential National Industries (Employment) Decree: AG’s Media Statement on 10th September is a Mis-use of Human Rights Principles and Law

By Dr Shaista Shameem

Former UN Special Rapporteur and Human Rights Expert; former Director and Chairperson of the Fiji Human Rights Commission.

The enactment of the Essential National Industries (Employment) Decree No 35 of 2011 on 29th July is fundamentally inconsistent with the foundations of the Employment Relations Promulgation 2007 (ERP), and jettisons the comprehensive public consultations and consensus-building that the Employment Relations Bill involved. By so doing Decree No 35 also has the effect of expressing the State of Fiji’s disregard of the International Labour Organization’s Conventions 87 and 98 which it has ratified.

In making a public statement on 10th September 2011 that the Decree upholds fundamental rights of workers to form a union or not to form a union, and other rights contained in the International Labour Organization’s conventions, the Attorney General is mis-using human rights and using its rhetoric to justify, excuse and obfuscate the enormous in-roads that the Decree makes into the State’s human rights responsibilities nationally and obligations internationally.

The most important human rights principle is access to justice and the courts but section 30 of the Decree is intended to prevent a court from considering any application made to review it. If the Decree up-holds fundamental human rights principles, as the AG says, there was no need for section 30 of the Decree. The ultimate arbiter of a human rights challenge to any law is the Court whose jurisdiction is provided in Fiji’s Human Rights Commission Decree 2009 as being available to any person. So why not let the Court exercise its jurisdiction fully and allow people to challenge the Decree in the courts as a breach of the human rights obligations of the State?

Similarly, given the solid human rights provisions in the Employment Relations Promulgation which was drafted after extensive consultations with the people of Fiji, there was no need to enact Decree No 35 if the purpose is merely to uphold the human rights of workers of Fiji.

Decree No 35 represents a serious erosion of human rights previously enjoyed by the workers of Fiji as follows:

First, the human rights principles of ‘generality’, equality’ and ‘certainty’ required in law are violated. Decree No 35 is specific to certain industries deemed ‘essential’ at the discretion of the Minister. This violates the principle of ‘generality’ in legal drafting. Secondly, the Decree infringes the principle of ‘equality’. Some industries are isolated for special treatment without any justifiable reason - for example, why is the Fiji Broadcasting Corporation Ltd. included in the list -  is it not discriminatory to include one media agency and not others? 

Furthermore, is FBCL included under section 2 interpretation of ‘essential industry’ (a) or (b)? Thirdly, the principle of ‘certainty’ is violated because no one knows which other industries will be included- it is done at the whim of the Minister, leaving the workers of Fiji uncertain and insecure about whether their own industries will be targeted next.
These principles of ‘generality, equality and certainty’ are central to human rights international standards for law making. They are particularly pertinent in an environment where avenues for public consultations are limited or non-existent, particularly where media censorship prevails or where there is no parliamentary process in place for public discussion and debate of proposed law.

Secondly,  Decree No 35 establishes two main public policy objectives: (i) that the new Essential National Industries’ Collective Agreements resulting from negotiations, employer’s proposal, or by determination of the Minister (sections 21-24)  can override provisions set down for reaching a Collective Agreement pursuant to the Employment Relations Promulgation 2007; and (ii) that courts, tribunals, commissions or other adjudicating bodies do not have jurisdiction to entertain in any way any proceeding which purports to challenge or question the validity, legality or propriety of Decree No 35 (section 30).

Public policy objective (i) above effectively repeals the ERP 2007 as far as bargaining for Collective Agreements is concerned since it unilaterally imposes a process which is in opposition to the extensive ‘good faith’ foundations of the ERP. Public policy objective (ii), namely, the non-reviewability by the courts clauses, prevents a person’s access to justice. Access to the courts by the public is a common law right protected within the broader (international) right to be heard and to have a matter determined by an impartial and independent court or tribunal. This right is jettisoned in Decree No 35.

Thirdly, Decree No 35 suffers from lack of good form and style in drafting thereby making it difficult for people to understand why certain provisions are placed where they are in the Decree, therefore preventing effective human rights challenge due to utter confusion about what the Decree actually says. Rather than follow a logical sequence of subject matter the Decree’s particular topics are scattered all over. For example, clauses dealing with Collective Agreements appear in section 8 and then again, repetitively, towards the end in Part 4 Collective Bargaining Process. Similarly, section 30 (2) of the Decree seems to be in the wrong place; it should instead have been placed in that Part (Part 6) as subsection (3). In another example, section 29, giving delegated unmitigated ministerial power to the Solicitor General, and which can in any event be regarded as something of an usurpation of prerogative Cabinet power, seems to have been hastily and irrelevantly included in the middle of a Part that deals, not with powers, but with application and reviewability.

Fourthly, Decree No 35 totally conflicts with Fiji’s international obligations as well as domestic law which protect workers’ rights, specifically, freedom of association. Fiji’s obligations as a signatory and therefore as State Party to Conventions 87 and 98 of the International Labour Organization (ILO) seem to have been set aside. Fiji is a member of the United Nations and is committed to comply with the Universal Declaration of Human Rights but Decree No 35 directly compromises its obligation to respect and protect human rights, and remedy human rights violations.

In relation to the obligation to remedy violations, Decree No 35 will have an effect on the remedies available pursuant to the Human Rights Commission Decree No 11 of 2009 which is another Decree of the Government. The breach of ILO obligations and contravention of the fundamental principles contained in the Preamble of ERP 2007 represents a face-off between Decree No 11 (Human Rights) and Decree No 35, both of which are products of the same Government. Under the circumstances, Courts can at least consider whether there could be merit in avoiding the seemingly set-in-stone non-reviewability clause in Decree No 35 to examine, as a matter of interpretation, whether Decree No 35 and Decree No 11 are incompatible and, if so, what this will mean for the survival of the only domestic law on human rights remaining in the country.

Click here to read the statement in full


mark manning said...

I'm confused !
Wasn't this same woman who supported the Regime and isn't it her sister, Nazhat, along with Aiyaz, who is writing all the Decrees etc. ?
Where does that leave the Indian Fijian Community, especially given that Union Leaders have also abandoned the Regime now ?

Vanua. said...

Like the message but have serious doubts about the messager?

Anonymous said...

She is Shameen Ali, not Nazhat Shammen. And Shameen Ali is and always has been against this illegal govt. God bless her.

Anonymous said...

oops... sorry mark. It seems it is indeed that evil Shameem. I'M CONFUSED TOO! What is going on???

Anonymous said...

oh yes.... it's that evil shameem's evil sister.

Anonymous said...

Every circus has a monkey....welcome Shaista

Anonymous said...

Oh hello, guess what? One of the Shameem sisters has just remembered LW306 - Legal Ethics! Oh well, better late than never!!

Manning's Daddy said...

what about the indian fijian community manning? you trying to make a point?

mark manning said...

Aiyaz is on track for an Islamic State.
For now, he will distract Fijians with seemingly important issues such as Union Decrees etc. while at the same time, continue entrenching himself and his illegal partners in crime, into every fabric of Fijian Society, its Institutions, Culture and Traditions, until they are all but totally destroyed and beyond repair.
There is it seems, absolutely nothing standing in his way !

What has come of the VRF and the Graffiti ?
What has happened to the opposition to the Regime from within Fiji ?

Miaw said...

What has the Fijian Indian community got to do with someone making a comment on a decree???? Is she commenting as an individual in the same way as Wadan Narsey comments??

Pray, where is the connection ??

Union leaders who were pocketing large board fees turned against the regime when they got the boot ??

Anonymous said...

Thank you very much Shaista for your revealing the flaws contained in the illegal/ill-prepared piece of document put together by a fool who has a very short memory so as not to be able to remember what he`s written in previous decrees;and being a fool,fails to realize that he keeps contradicting himself in every piece rubbish he writes.Anyway Ma`am,God Bless you for your finally taking this bold stand to protect the rights of workers in Fiji with your expertise in Human Rights laws.
As for you Mark Manning@7:34pm..you`re a donkey!!!REMEMBER..small and average minds think about people and events,surely you have a great mind...you gotta allow people to make choices as we move on and let history be the judge of their past.

Anonymous said...

I didn't see Mark Manning giving us a comprhensive review of Decree No 35. At the very least Shameem has the courage & conviction of writing from were the action is taking Place!Mark i am sure is sitting behind his cosy desk in Aussieland! Mark is happy to support the Union Leaders who have abandoned the Regime?? So did Roko Ului, so did Baledrokadroka-whilst our people are abandoning the cause the gaps are getting filled with Marks kai vata from Aussie & NZ or hasn't Mark noticed? As for the Indian Fijian Community-thay don't have to do a damn thing because they didn't start any COUPS, in fact they the ones that suffered-the best they can do is leave those who started it to end it also! Because in the end they will still get blamed!

Anonymous said...

Oilei! let's not forget the enemey is here: bainimarama for doing the coup for his own stinking selfish reasons, and the arrogan and amitious khaiyum for running the regime from the behind the scenes via his decrees. we know shameem is a shyster but let's be smart: lets use the disaffected and the crims to catch the crims!!!! ps indians not maytrys, they had their part to play in where we are at, let's not make matyrs of ourselves.

Anonymous said...

Hi Shaista,is ther a international labour org vacancy coming up soon which we are not aware of ?? are you job hunting??

Anonymous said...

"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." ~ Ronald Reagan, 
 40th President of the United States (1981–1989)

Democracy Fighter said...

Congratulations on leaving the Dark Side and crossing over to democracy Shaista. Spread the word to your former colleagues and tell them they, too, can come into the light and leave Bainimarama and Khaiyum to their rotten schemes.

Anonymous said...

Another law passed UN-noticed is the jaywalking. This law was enforced to push traffic to Khaiyum's mates shops. Have a look at placing of pedestrian crossings. Most near Tappoo's coming soon.

mark manning said...

@ anon 729 a.m.
Do you think, though you are partly correct in what you say here, that if i were a fijian living in fiji, i would or would not be taking a similar stand against the Regime.

Anonymous said...

If Shaista truly repents of her misdeeds in siding with this illegal regime to overthrow a legally elected government, and face the future like Ului to be judged by the people later, I also will give her the benefit of the doubt and let her on the good side. "If she is not against you, she is for you". Lets join hands and overthrow these illegal government. Power to You and God Bless Fiji.

Anonymous said...

Shaista trying to get browny points.
May be Mahen Chaudry can write a piece too.
After that Nazhat Shameem can write something too.
How about Nur Bano. May be she can write why she's just an innocent bystander who was forced to do what she did at the point of a gun.
O I nearly forgot Mr Tappoo.
How about Mr Tappoo can write that he got a bad deal after all.
May be John Prasad can write he actually did not agree with the Charter.

All these people helped with the coup and they have to share the blame of why Fiji's children now are poorer and lack proper health care etc etc.
They have to be all investigated and maybe share a cell-block in Naboro with Bai and Khaiyum.

-Valataka na Dina.

Anonymous said...

Hey guys. Being cynical about Shaista is understandable for her role in the coup and later justifying it. But recently she took the pensioners case . She has also now obtained support from Attar Singh for that case. We in the legal circle know he gave an affidavit. He was the one who took on the Ag and FNPF publicly. Made exellent case and FNPF had nothing to counter. So she could be working with him. If that is so then we can all support her and welcome her to the opposition. I will trust Attar Singh and FICTU. He has been fighting all the way, not Felix and FtUC. They made board fees. Attar and fictu refused to sit on any board.

mark manning said...

Of the handful of people who are known to have been party to this coup and its implementation, many were of Indian Ethnicity, be they Fijian or otherwise.
The distinction between them and Indigenous Fijians who are equally as guilty, is that predominantly, they were the Architects of the coup.
Having realised that the end is nigh and the futility of this particular coup, they are the 1st. to abandon the sinking ship, not because they are honourable people, but because there never was anything in it for them from the outset and because they now realise that they were used as much or more, than they thought they were using the Indigenous Fijians involved in this coup.
No amount of fancy footwork and elitist rhetoric will distract us from the realities.
It's fine to sit back now and pretend to be attacking the Regime, having supported it from its inception, writing impressive reports, to which fellow Indians pretend to be thankful and amazed, but it doesn't wash with me.
It's all hot air, smoke and mirrors and no matter how much Shaista and her sister try to sugarcoat it, they will face justice for their part in the coup, one way or another.
Please don't pretend that I am being a Racist or prejudice, the facts speak for themselves.
The people involved in the Regime are Indian, the people behind the coup are Indian, the people who have Bank rolled the coup are indian, the 1st. ones to abandon the Regime are indian and the ones writing " impressive " reports in an attempt to save their own skins, are Indian.
Please call a spade a spade and try not to compare apples with pairs.
The realities speak for themselves, it's not rocket science.
You'll never resolve any issues in Fiji if you keep dancing around the problems or trying to bury your heads in the sand or dodging reality.
It's interesting to see how the Indians come out defending each other and the indefensible.
No wonder they are such a mixed up race of people.
Perhaps it stems from their class system or their deities and fake Gods.
They are so out of touch with reality it's almost unbelievable.

mark manning said...

Personally, i don't trust anyone, no matter their Ethnicity, who changes sides from one moment to the next.
It seems to me that many are abandoning the Regime because they have finally realised it's better to leave now in the hopes of saving their own necks, oblivious to the fact that they will be held accountable for their own actions in the past.
Forget the past, no !
Learn from it, yes !
It's all hot air with little to no substance so far as I'm concerned.
One thing that really pisses me off with indians is, they like an each way bet, like the Italians in World War 11.
They'll change sides to whoever is winning, while they are winning, and switch back at the drop of a hat.
Then they make their speeches and pretend to be honest, contrite and honourable, but you never hear them admit fault or apologies to anyone.
On top of that, you never hear boo from the majority of the indian population in Fiji or from overseas, but when one of their own is attacked or questioned, they are all over you like bloody lice and you can't get rid of them.
Why haven't the indians in fiji denounced this coup and the Regime ?
There have only been a handful who have spoken of the realities, though they haven't confronted the Regime head on like many indigenous Fijians have, to their own peril.
You guys attacking me, you don't scare me or impress me, your pathetic, the way you try and defend the indefensible.
Start being honest with yourselves.
Shaista is a fraud and only concerned with self preservation, so please stop coming to her defense, she's a big girl and can take care of herself !
The attacks tell me that the end is near though.
Why else would you all be coming out to defend her at this late stage.
Let's hear contrition, an apology and an admission of wrong doing from Shaista before we begin blowing wind up her Sari.

Anonymous said...

Shaista Shameem, lest you forget the Courts which you refer to as the last bastion of hope for any society was in existence pre-Dec 06. Its independence was in place and functioning. You, your sister and your ilks helped to remove it replacing it with this circus system...where there is no independence. Perhaps you should begin by admitting your role and an apology.

Do that then we can believe you. Otherwise any counselling you might want to do will always be viewed with cynicism.

Anonymous said...

I stand by my unwavering support for the Trade Unions and Shaista in the role they`re playing in the front-line of the legal battle against this oppressive regime.
To the rest of the brigade,..shoot as much arrows as you like overhead towards the enemy lines..in the confusion of battle people do get hit by freindly fire..(liumuri/informer/butubuturua and all those other things we Fijians are very good at.
Every word said on this blog is only hot air unless it manifests into action...The Unions & Shaista are doing just that for the workers of this country.
Thumbs up for Democracy.

Anonymous said...

Mark manning you are a racist pig. How dare u say indians put up a bet each way. It is not a matter of indians or itaukei. People make their own choices as individual and not as a race.move from the mindset of race based thinking that destroyed our country since 1987.

Rishab said...

Mark Manning...what ant the numerous I Taukei people who are part of the military and civil service who are also supporting Bainimarama and actively supporting this coup? People with views like yours are no longer needed in this world. Take the hint and do the world a favour.

Miaw said...

@Mark Manning

You say dont compare apples to "pairs".

It pisses me off when a white Australian tries to meddle in the internal affairs of Fiji but cant even spell.

Manning should tell us how white Australia decimated the indigenous natives of the country he now occupies !!!

Anonymous said...

Would someone please clarify just whose side Sha -MIMI is on?
It is obvious that she wants the cake and eat it too!!
Talk about liumuri!!!!

Miaw said...

Frank Bainimarama is against racism. He want a Fiji where there is a place for everyone.

Manning is a relic from a bygone era in Australia and the white Australian policy.

Therefore Mark Manning Magaichinana is against Frank Bainimarama.

Lipstick on a pig said...

If you put lipstick on a pig - it is still a pig. Go pork yourself!!

Anonymous said...

Whats with the freaking number 1 hair cut ?

Batting for both sides?? said...

Looks like the indo-Fijians had a bet each way and lost both? That is dimwitted.

Stan said...

Mark Manning...u suck

Anonymous said...

Mark you want to come to this Forum & preach about the indians in Fiji-they gave their life & blood to make Fiji what it is today and look where the Traditional Landowners are now! What did you fore fathers do for the Aborigenes of Australia-killed them & shipped them off to other far off places so you could own all the land-1960 was when you recognised that the Black fallow in Australia was Human Beign! Only in last few years you recognised the country was previously occupied by a black race of people! Would do you good to leave Fiji to those that are from there to sort out-all the Australian companies did when tey got into Fiji was rip the natives off ,steal their land,wealth etc and gave them religion to keep them busy whilst you creamed off the best resources. The Indo-Fijians were brought in as Slaves! Short memory Mark Manning! If its wasn't for the Indo-Fijinas there would not have been anything left for the Fijians of today they would be in the same boat as the Aborigines-No Land, No custom , No traditions & No Culture! It took you only a span of almost 100 years to perform such a miracle & less than that to kill off all the Aborigenes of Tasmania-now thats some achievement! Fijians are still suviving with everything intact -thanks to the Indo-Fijians who bore the brunt of the White Mens greed.There is no other country in the Pacific including both Australia & NZs Indigenous peoples that can better the Native Fijians records in Education & development, etc.That was done on the backs of Indo-Fijians who slaved on the lands if it weren't for the Indo-Fijians the Fijian people would be a nothing race like the Aborigenes!You can criticise the indo-Fijinas as much as you like but the simple truths are there for all to see!Please do something to help the Aborigenese-we will sort Fiji out!

Anonymous said...

Mark Manning sounds like one of those looney end of the world theorists who claim the world will come to an end on the 21st december 2012.Mark ,your blue eyes and former blond hair gives you away as the anti christ.Remember the bible says that during the last days there will be the anti christ who would sound very christian and say anti all sorts of things...in this case anti muslim sentiments....YOU SATANIC ANTI CHRIST MANNING!!!!

mark manning said...

My comments seem to have offended a few, but they are predominantly directed at those responsible for this coup, those in the limelight such as aiyaz, the shameem sisters and others who have conveniently switched sides at an opportune time !
And there are those whose identities, we may never know.
I've yet to hear the general indian population in fiji, speak out against this coup and this concerns me and i feel needs to be addressed, if only to encourage them to come forward as some Scholars and others have and to encourage a brothers in arms approach so post coup, there is little to no relation against the Indian fijian community. this i know, is a deep concern. Of course, i acknowledge and have stated many times, that a hand full of greedy Indigenous fijians are equally as responsible for the coup as is Aiyaz and his friends and as Frank and his cronies.
No one Ethnicity is responsible for this coup and all are as guilty as the other, at the same time.
Equally, one could argue, that not every Indian or Indigenous Fijian is responsible for or motivated by money, greed and power as is Frank and aiyaz.
I'm certain that people within the Fijian Community are fully aware of who is on which side and who are responsible and honest citizens of Fiji.

And you are right, it's apple and pears not apples and pairs !

Anonymous said...

Mark Manning don't come here and give us your bull or try and sound sanctimoniously now-after you got a few beltings! As one of country use to say"show me money" Give us the proof of the Indo-Fijians who supported the coups-with money etc! While you at it why don't you list the names of other races in Fiji that supported the other COUPS-dope.As for comparing the Indians to the Italians in the WW2 -go and read up on your history before blaming any country or race.There were the British right inside the the Royal family who supported the Germans-Any suprise! The present bunch of Royalties who sit on the Throne in UK are Germans anyway! Chew on that on! As for the Indians -there is no other country in WW2 that had more Victory Cross than the INDIA! The Indian died by the thousands because some British idiot General wanted to prove a point-too dopy to listen-just like you!Why should the Indo-Fijians speak up now-just to make you happy!If we have to support you line of thought the Indo-Fijian Drs who are working in the Hospitals & Centre around Fiji are also coups supporters? The reason why the Indo-Fijians does not want to talk is no diffrent from the lack of voices you hear from other races living in Fiji-THEY DID NOT START THE COUP THEN OR NOW-even if they did talk they will be still critised-just as you are doing now! Tell us something you have done for the Indigenous Australians who are living in a 4 World conditions then we can believe your carp!Commiting sucide every week in some communities,getting ripped off by their own State Govts where the tenders for work given to White companies to build house-have built crap places for the Black fallow to live in.Not enough space on this whole site to put down the rip off on your Black Country man, woman & children! You talk so much crap-someone would think you an expert on Fiji! Here's one you can ponder on-in a period from 1989-1999 the total amount of studies done in Aboriginal Communities with regards to diseases of the Ear on children was close to 900 plus-studies, papers published!All your White relatives got their Masters degres & PhDs & cici degrees off the backs of the suffering blackman! All reserach etc said the same thing-Aboriginal children had the highest rate of infection than anywhere else in the WORLD- 10 years later they still the same-no change, where has the money gone? Ask the White Fallow he has all the answers-DOCE!Do something in your own backyard before coming to worry about Fiji!As the Elders in our clan use to say you just another"samusamu vodre"-"know it all by know nothing" When you change your name to Mark Prasad come back and we can chat & i will you more free consultations!

Keep The Faith said...

Harharharhar Hoohoohoohoo.

Please tell me this is the latest failed skit for the Laughing Fijians?

And how utterly RICH that we now defer to our UN Human Rights role and hellow the FHRC's as illegal treasonous "chairperson".

This old bag hasn't left the dark side. She has never acknowledged, admitted nor apologized for her illegal and treasonous role in 2006 (unlike RUM) because she doesn't want to implicate herself and get hauled up for it later.

Now that RUM is is saying that the plans for the 2006 coup where hatched as early as 2003, it is no state secret that the 2 Shameem sisters, Aiyaz Sayed Khaiyum & Gates contributed their legal know-how (for whatever that's worth) towards the illegality, sedition and tyranny that all citizens now endure.

Pensioners Beware.

Anonymous said...

ShaMIMI, Go relieve yourself somewhere else, you SOW of a PIG!!!!

Anonymous said...

You are going to have to do more than this Shyster to redeem yourself.

Fed up with Dave Pfliger said...

The Essential National Industries Decree is the creation of Air Pacific CEO - American, Davis Pflieger. Direct all hate to this imbecile! Just a damn looser who would not get a dog catcher's job in the City of Atlanta. tic.....toc.....tic.....toc, time is running out - go home Yankee

Anonymous said...

Shaishta & Naz you fugly sisters, you will get what you deserve soon, don't try to mari mari people of VITI now, we know your backstabbing styles

Anonymous said...


Mark Manning, you are absolutely right to ask Shaista apologise for supporting the coup.

Can I do that for Shaista?

To you the people of Fiji, I (Shaista) apologise that I did not challenge the illegal SDL Party from taking office in 2001 as lawful cabinet when Adi Queeny and other political parties cried vote buying by Qarase with millions in handout.

It took Peniasi Kunatuba to fight that regime and taken 6 years before a verdict was delivered by another Shameem sister.

I supported illegal govt from 2001 to 2006 when my sister gave a summing up SDL benefited at polls in 2001 elections.

Had I acted in 2001 when my office received a complaint within 28 days complaining that 2001 budget was illegal given SDL Govt had not been constitutionally adopted,I made a mistake like you too by allowing law to take its own course.

I left it for 6 years to let military be the one to remove SDL Govt when I was in the FHRC directors chair to act on the breach of Human Rights then.

If I had acted then, military would have remained in barracks today.

What have you got to say on this Mr Manning?

So Mark Manning, Indians and namely Shameem sisters supported SDL Govt for 6 years and allowed law to take its course, when SDL were in fact a party that went aganst the constitution that GCC adopted.


Can you tell Frank this Mr Manning, so he can be rest assured that there is no cat to call the kettle black left and call for a quick election.....as he is safe!