#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: In Fiji's case it's definitely a case of more is less

Monday, January 16, 2012

In Fiji's case it's definitely a case of more is less

It's been more than a week since the public emergency regulations were lifted and a quick look at the media reveals nothing seems to have changed. News teams remain well-heeled although the Fiji Suns seems poke its head out on the odd occasion, confident perhaps because of its status as the official regime organ. Similarly, the 'analysis' being offered about major issues such as the new public order, is in the vein of 'helpful information' rather than a hard hitting challenge to the continued loss of citizen's rights. See below.



By NAZHAT SHAMEEM
(Ms Shameem is a former High Court judge. She is now a legal consultant)

PART II

What powers do the police have under this section?
1.    To prohibit a meeting, procession or assembly[.
2.    To direct any meeting assembly or procession to disperse.
3.    After due warning, a police officer may use any force he/she deems necessary including the use of arms to disperse the meeting, procession or assembly, and to apprehend any person present. In such a case the police officer is immune from civil or criminal suit.


These provisions are similar to regulation 3 of the repealed Public Emergency Regulations although there is no longer a power to attend meetings on reasonable suspicion that there will be a breach of the peace.


The power to use whatever force is necessary to disperse a riot was previously given to the police under section 90 of the Penal Code.
Immunity from civil and criminal suit was also provided under section 90 of the Penal Code. Thus these are old powers.


The new section 10 creates offences of taking part in a meeting held without a permit or in breach of the conditions of a permit.
The maximum penalties are five(5) years imprisonment and/or a fine of $10,000. A person who organises a meeting in breach of the Act is liable to the same penalty.


The new section 11 of the Act gives the Commissioner of Police or the person in charge of the police district powers to close roads or to regulate the use of public places in order to secure public safety or to maintain public order.


In an emergency a police officer above the rank of inspector can exercise these powers but for only 24 hours or until the order is endorsed by the Commissioner or the officer in charge of the police district. Section 11A, is comparable to section to section 5 of the Public Emergency Regulations, except that one of the grounds on which the Commissioner can act under the Public Order Act is “for ensuring that the economic and financial integrity of Fiji is not undermined or sabotaged”.


The Decree also adds a new Part 3A to the Public Order Act.

Section 12A provides that the penalty for an act of terrorism is a maximum of life imprisonment. Section 12B creates an offence of harbouring a person who has committed an act of terrorism. Section 12C creates an offence of knowingly providing or offering to provide a weapon to a group or organisation involved in terrorism.

Participating in terrorist groups is an offence under section 12D and recruiting into terrorist groups is an offence under section 12E.
Sections 14, 15, and 16 are left untouched in the Public Order Act except for an increase in the penalties for the offences.
Section 17, which is the “hate speech” offence, is amended by adding two further categories of result which is likely to be caused by the report or statement.


One is “incite or promote religious, ethnic, or communal hatred or dislike” and the other is “undermine or sabotage or attempt to undermine or sabotage the economy or financial integrity of Fiji’.


Further after the word “race” the words “religion, ethnicity, or community” are added wherever “race” appears in the section. Subsection (2) which permitted newspapers to report hate speeches is deleted. The offence is given extra-geographical jurisdiction by the insertion of a new subsection (5). This means that hate speeches made overseas by Fiji citizens and residents can be tried in Fiji by the Fiji courts.


The new sentence for hate speeches is now a maximum of (five) 5 years imprisonment and/or $10,000 fine A new section 17A gives powers of arrest for police officers in relation to public order offences or offences under the Act.
These offences include terrorism, racial vilification and trafficking in persons.


Where a police officer has reasonable suspicion that a person has acted or is about to act in a manner prejudicial to public safety or the preservation of peace, or is about to commit a public order offence, or on being questioned by the police a person  fails to satisfy the officer as to name or address, or purpose for being in the place where he or she is found, the officer may arrest the person without a warrant.


The police may also detain the person for investigations for up to 48 hours. Thereafter the person can be detained for 14 days but only on the authority of the Minister, who must be satisfied that the enquiries cannot be completed within 48 hours.
After 48 hours or up to a further 14 days the person must either be released or brought to court. The Criminal Procedure Decree gives the police powers to detain for enquiries for up to 24 hours, for offences other than murder or treason, and to grant bail after the expiry of 24 hours unless the case is of a serious nature.
If the case is serious, then the suspect can be kept in custody and produced in court “as soon as practicable”.


The Public Emergency Regulations allowed the police to detain persons in custody while acting under those Regulations for up to 7 days after the initial 24 hours, with the authority of a magistrate or police officer[20].


Section 17B permits any police officer to use whatever force is necessary to arrest a person suspected of having committed a public order offence.
This provision is similar to section 90 of the repealed Penal Code in relation to powers of arrest for riot and unlawful assembly. It is an offence to obstruct officers under the Act.


Section 17C provides that a member of the armed forces, when directed by his/her commanding officer, at the request of or with the concurrence of the Commissioner of Police, to exercise any of the duties or functions of the police or prisons officers.
A new Section 21 is inserted in the Act. It reads that no court, tribunal, commission or other adjudicating authority may hear a challenge to the validity, legality or propriety of any decision made under the Public Order Act by the Commissioner of Police, Divisional Police Commander or Minister or any public official.


Where any such claim is brought, the file will be taken to the Chief Registrar for termination of the proceedings.


That is a summary of the provisions of the Public Order Act after the amendments.

The Public Order offences
Are the public order offences, to which the Act now applies new offences? If they are old offences which previously existed under the Penal Code, have they been modified either in the Crimes Decree, or in the Public Order Act itself?
Treason – Under the Penal Code there were several treason offences, defined under sections 50,51, 52, 53 and 54.


Treason itself was simply defined as any act which in England would be termed treason.
The term was defined in State v. Timoci Silatolu and Josefa Nata [2006] AAU0024/03S.
Section 51 of the Penal Code stated that any person who instigated any foreigner to invade Fiji with an armed force was guilty of treason. Section 52 created the offence of misprision of treason[23] and section 53 of the Penal Code created the offences of “treasonable felonies”.


Any person who formed an intention to depose the State or to levy war against it or instigated an armed invasion of the state by foreigners committed treasonable felonies.
The Crimes Decree definitions of treason and related offences are more specific.


Levying war against the State is still treason[24], but so is instigating invasion, killing the President or the Prime Minister or engaging in conduct that materially assists another country which is engaged in armed hostilities against Fiji.


There is a special offence under section 65(1) of intentionally urging another person to overthrow by force or by violence the Constitution of Fiji, or the Government of Fiji, or the lawful authority of the Government of Fiji.


These were not specific offences under the Penal Code, although they could be alleged as overt acts to the offence of treason. Spreading racial or communal hatred or antagonism is a new offence under section 65 (2).


However although a new offence, it is very similar to the offence in the Public Order Act of inciting racial antagonism[25]which is retained and extended after amendment.
Sedition – now under sections 66 and 67 of the Crimes Decree, the offences of sedition are identical to the old Penal Code definition of sedition under sections 65 and 66.
However, Sections 67 and 68 of the Penal Code which allowed the court to suspend the operation of a newspaper found to contain seditious material and to prohibit the circulation of seditious reports are not included in the Crimes Decree. Important safeguards to freedom of speech are set out in the proviso to section 66 of the Crimes Decree[26].
Terrorism – Is made an offence for the first time, although the Financial Transactions Reporting Act 2003 made the financing of terrorist activity unlawful and defined terrorism in similar terms to the Public Order Amendment Decree.
Human Trafficking  and People Smuggling-Offences created in accordance with the definition of trafficking in the United Nations Trafficking in Persons Protocol were incorporated into our laws for the first time in 2009 when the Crimes Decree was passed.
The offences are based on the prohibition on the transportation of people in and out of Fiji, or within Fiji, for the purpose of exploitation, or by deceit.
Genocide, crimes against humanity, slavery, sexual servitude and apartheid are all offences from the Rome Statute of the International Criminal Court.


Fiji was required by her obligations under the Rome Statute to pass laws identical to the Rome Statute laws for international crimes.
Hate speeches and  incitement to violence – These are all old offences created by the 1976 edition of the Public Order Act itself.
There is a new offence under section 65 (2) of inciting communal antagonism which falls within the ambit of “public order offence” for the purposes of the Public Order Act.

The Media
The provisions in the Public Emergency Regulations permitted the Permanent Secretary to check on stories before publication. The Permanent Secretary no longer has these powers now that the Public Emergency Regulations have been lifted.


However the Minister for Information has similar powers under section 80 of the Media Industry Development Decree.
Complaints against the media can be made under section 54 of the Decree, and non-compliance with the code of ethics in the 1st Schedule is one of the possible grounds for complaint. A complaint may be dismissed summarily or referred to the Media Tribunal for adjudication.


What advice should be given under the Act since it was amended and the Public Emergency Regulations were lifted?

1.    When organising a meeting of three or more persons, you should apply for a permit from the police. This law has remained unchanged since 1969.
2.    When a permit is granted you must adhere to its conditions because failure to do so may lead to a refusal of a permit when you next apply.

3.    The Media is now regulated by the Media Industry Development Decree. Media agencies should be aware of its provisions, and of the powers of the Media Industry Development Authority, The media will be judged ultimately by adherence to the Media Code of Conduct, in the Media Industry Development Decree.

4.    In making statements in public you must not incite racial antagonism.

You must not make a report or make a statement that is likely to promote feelings of enmity amongst the different communities, religious groups, or classes of the community.

You must not become involved in terrorist activity.  You must not cause any harm to others, nor must you make threats of harm to others.

5.    You must not make hate speeches or speeches in contravention of section 17 of the Public Order Act even when you are travelling abroad.

6.    In seeking to promote changes to our laws and constitution, you must not urge the use of force or violence.

7.    In seeking to make changes to the law you must not cause discontent or disaffection amongst the people of Fiji unless you are pointing out factors which cause any such discontent.

8.    When asked for your name and address by the police you must not give a false name and address. When asked you should explain what you are doing in the place where you are being questioned.

9.    When in doubt about the effect of the law on your conduct or proposed conduct, consult a lawyer.

  • [1] Section 2 Public Order Act
  • [2] Section 4 Public Order Act
  • [3] Section 8 (1) (a) (b) and (c)
  • [4] Section 8 (5)
  • [5] Section 15 (a) (b) and (c)
  • [6] Section 16
  • [7] Inserted in 1976 by Act No. 19 of 1976
  • [8] Maximum sentence – 1 year’s imprisonment and/or $500 fine
  • [9] Section 7F
  • [10] Section 7F(2)
  • [11] These were the sections which empowered the Minister to prohibit assemblies and meetings, empowered the police to stop and disperse meetings and processions, and created a “deeming” provision that a meeting in breach of a permit was deemed to be an unlawful assembly.
  • [12] Section 9 (1) (a) and (b)
  • [13] Section 10 (1) and (2)
  • [14] Section 9 (1) (a)
  • [15] Section 9 (1) (b)
  • [16] Section 9 (3)
  • [17] Formerly Regulation 3(5) of the PER
  • [18] Section 11(2)
  • [19] Section 24 (1)  (2) and (4) of the Criminal Procedure Decree 2009
  • [20] Regulation 18 of the PER
  • [21] Section 17D
  • [22] As defined in the Public Order Act (Amendment) Decree 2012
  • [23] Defined in State v. Viliame Savu [2002]HAC 010/02S
  • [24] Section 64(1)(d) Crimes Decree
  • [25] Section 17
  • [26] See also DPP v. Afasio Mua and Others (1992) 38 FLR 226

DISCLAIMER: This article was written to ensure that members of the public are aware of the new and old provisions of the Public Order Act.  Nazhat Shameem is not the author of the Public Order (Amendment) Decree.
She has carefully refrained from expressing any opinion on  it.


An analysis of the Public Order Act and more
http://www.fijisun.com.fj/ 

Nazhat Shameem slams ASK's decree
http://fdnblog.wordpress.com/ 

34 comments:

Kiuva pussy said...

This is just a wishy washy attempt at portraying the new law as nothing out of the ordinary. The regime's tract record shows its willingness to strech the letter of the law as a means of controlling differing viewpoints. In other words its a dangerous tool in the hands of those who lack accountability.

Anonymous said...

Justice Shameem, you've such a sharp legal intellect. Please explain, if you can, why Bainimarama's regime is not treasonous and illegal, and its decrees properly null ab initio.

s/ Dakuwaqa

Mrs Doubtfire said...

Can Mrs Shameem explain to us her husband's unethical behaviour in telling the government Bai was losing to Premila and under what part of the new Public Order does his behvaiour come under? Now that I would find interesting

Anonymous said...

blog owner

please explain to majority uneducated contributors what this all means! unless you too have no clue

Anonymous said...

All i know is that the Shameem sisters along side Bai & Khaiyum
better get ready for a long stay
in Naboro.Whatever, she's trying to do to manipulate her way out,ain't going to work, cause i have her name and her sister and maybe a rope with a noose at the end of it?

Fijiana said...

Nazhat makes $US1500 a day for her role as a "consultant". My be we need some discloses here. Why is it that Noor Banu's accounting company doing payroll for the ministers? Ir the finance department not good enough? Are they not qualified enough to handle this task? Let's hear from the goons at RFMF.

Anonymous said...

nazhat uro levu

Anonymous said...

Anonymous Croz' friend Naz said...

Croz' friend 'Naz' is just trying to protect her backside like her little piggy sister. They know what is coming to those who commit treason and support human rights abusing dicatatorships. Not to mention the justice coming for piggies filling their greedy little pockets like aunty nur. You can put lipstick on a pig it is still a pig, isn't it croz?

January 16, 2012 6:14 PM

Anonymous said...

None of the NGO group anylonger invite or have association with Naaz . They know her tactics and goody goody attitude and screw later tactic . BHAUT JULUM

Anonymous said...

Can some legal eagle please tell me what Happens to people like HUNTS SANJEEP PAL MC when he keeps writing letters to FIRCA about his mates. All his friends and foe have been investigated and they all know its him writing under different names and famously under DHAKELO SINGH. He should be taken in by FICAC or to the camp for sapasapa.Aziz does not want to know him anylonger as he contributed to get AZIZ his tail between his legs. BANAISE SALA BARKA . He should hang himself in shame as Pundit Pande lost his house because of Sanjeep Pals debt

Anonymous said...

How can one resign from the bench after the coup AND GO on to work as a private consultant for the Voci military regime?

Anonymous said...

u mean Sanjeev Pal Quest and owner of Hunts. He already has a house in Gold Coast and one house in USA where his wife and son live now. He cries with bullshit tears to get loan from people and master Changaiya died in worry as he did not give his dinau back to him as promised .When his bayview house was on mortgagee sale he got lautoka general transport in tax scam with AZIZ bragadier and forced them to buy his house and to sign a agreement that he can live in there as long as he is in fiji. He is trying hard to make friends with some senior army guys now so his scam can continue .He already has started giving loans and promises for a bank that has not even opened up

Anonymous said...

all is well except that there is no come back.

every single officer empowered under this decree is a jackbooted fasicist nazi at all times as they are not accountable for anything.

we now live in a permenant fascist state under the whim of individuals in uniforms.

this is an abomination

Anonymous said...

Bajaru sisters, will fall on their own swords for their evil doings!

Anonymous said...

Mr.doubt fire 412pm
Read today's Fiji times -it's all revealed there.

Truth will always prevail and wrong doers will face justice.

Anonymous said...

Can some lawyers instead of critisizing the enteries provide some constructive commentry on this new Act.
Yes some parts don't sound good but the other bits sound similar to Oz, NZ,UK,USA laws . Pls confirm that true ?

Anonymous said...

Shameem and your siSter please just prepare your legal defence for your fight stop you from going to naboro to join bainivuaka and aibigarse. You have spoilt our country enough....you will not be needed anymore. Please go home and do as much research as possible to protect your ass. Naboro is waiting for you. Collect as much money as possible for your legal defence. We have had enough of your bullshit!!!!
Fancy the legal terms you use.....dont think we Fijians and our brother and sister Indofijians are uneducated....we are awake and we are also well qualified and we will be there to defend our country and put you guys in the right place when the time is right. Our brothers, sisters and children have suffered enough. Enough of your boicici terminologies.....we are fed up of you and your sister....yes we have had enough of you....ROGOCA VINAKA NA DALIGAMU.....WE HAVE HAD ENOUGH OF YOU AND YOUR SISTER.....YOU HAVE BETRAYED OUR LOVELY COUNTRY.....COME BACK FAST DEMOCRACY..................PLEEEEEEEEEEEEEEEEEEEEASE SO THESE PEOPLE CAN GO TO JAIL.
HAIL DEMOCRACY.

Anonymous said...

Load of BS that no one around the world is buying. The only people the illegal Military Regime is fooling is them selves. This shows the lack of intelligence these corrupt thugs have to think they can fool the oppressed people of Fiji.

Anonymous said...

Interpretation of the New Rule?? These are the ones that are piggy backing on the Illegal Regime. Trying to make their millions and run overseas when the time is right. bloody suckers of the highest order....

Bottom line is the Regime is ILLEGAL!! They were not elected by the people so get the F--- out ASAP!!

Anonymous said...

nonsense!

Anonymous said...

Why shud other lawyers comment on this oppressive nonsense. Let the regime's collaborators and paid ass-kissers explain trash that only they undastan. Aren't they all insulting n despicable? what a mess they've made of this country!

Anonymous said...

Anonymous Anonymous said...

Dina says..........

This coup has breed lies and deceit and murder.

Can we ask Naz why did she support the coup. She is one master liar and unethical senior legal eagle. May be she wants as many top guns licking her p!@#y. sorry biache, no wonder all female NGo's and past friends have deserted you.

Where has your principles gone NAZ ?

Naboro waiting for you and Aslam Khan. And keep your children in safe places. One day when you wake up, you won't see them again. Because you will be in Naboro.

Naz Alias : cunning Fox

January 17, 2012 9:07 AM

Pacific in the Media said...

Anonymous said...

I'm sure the person that inherit the PM post after 2014 may have to hang-on an extra pair of polos? cause, He's gonna have to hanged some,jailed the shamimi sisters and terminates, a lots of a!@#$%&s,removed and jailed Judges&
magistrates,throw-out stupid decrees,terminate illegal leases,closed various institutions,and kicked-out the a$$-kissers etc,etc,.Boy, i think i'm gonna have to fight a lots of Fijian people, to be considered for that job?

January 17, 2012 3:36 AM

Anonymous said...

Asshole, Banana in pyjamas and the ugly duckling Nur Bano will all face hardship once the regime collapses. They have done too much harm to the country and it is time for them to pay back to the people of Fiji.

That pay back will be major hardship on them that they will regret. Regret so much that they will cry their brains out. Watch it you goons.

And if other goons think they are safe, you're not. That is you red headed Sharon and you also Yankee David Pflieger. Time to pack your bags buddies because good times cannot last forever. Moohahahaha!!!!

Anonymous said...

Shamimi is trying to find a way to escape being prosecuted when this Mickey mouse outfit falls. Voceke Baimagaitinana has stuffed up the country real bad, and deed the pockets of a few real good, it will take a miracle for Fiji not to sink financially.

When Baimagaitinana falls, there will be a mad rush to transfer money overseas then a one way ticket out of Fiji. Just wait and see, it will happen.

Anonymous said...

Now we have Sharon Stone Head tellng us "Don’t feel threatened by Public Order Amendment Decree". Who the F'ing is she to tell us? We do not need your half sucked mango face telling us this.

See article in today's http://www.fijivillage.com

wedding party said...

fiji is a big mess when people think they need a permit to have a wedding

Police Chief Operations Officer, ACP Henry Brown

Your views
Private functions do not require a permit
Read or post your comments

Private functions do not require a permit
Publish date/time: 17/01/2012 [19:11]

The Fiji Police Force clarified that people who have private functions like weddings and cocktail parties do not need a permit under the Public Order Amendment Decree.

Police Chief Operations Officer, ACP Henry Brown said it is clearly stated in the decree that the Police will only intervene if people attending a function are discussing or plotting actions that would disrupt public order.

ACP Brown said the Public Order Amendment Decree has offences that are also in line with the Crimes Decree.

He said the Police have also clearly explained to organizations like the Methodist Church on when they need a permit.

It has been stated that no church services will require a permit.


The Public Order Act which has been in place since 1969 has been modernised under the decree.

However the 1969 Public Order Act which has been in force in Fiji since that year clearly stated that the Minister may, if it appears to him to do so in the interest of public safety and maintenance of public order, at any time prohibit the holding of any assembly in any place, whether such place is a public place or not.

Only religious ceremonies at places of worship are exempt from this under the Act.

The 1969 Act, which has been in force also defines assembly as any gathering of three or more persons assembled for a common purpose and a procession means a procession of five or more persons or three or more vehicles.

The unlawful assembly section in the Act has also been in place since the law came into force.

This states that any meeting or procession convened or taking place in a public place for which no permit has been issued, shall be deemed to be an unlawful assembly.


Story by: Vijay Narayan

Onward Christian Soldiers said...

So Henry Brown thinks he can crush the Christian church. Do two things Henry 1) go home and read your history of anyone trying vto crush the Christians, and 2)have a good think about your future and that of their family - are they considering taking up an alternative to christianity?

Anonymous said...

No harm asking for permit for anything. Keeps the police busy plus shows how stupid this order is.

Anonymous said...

iT REALLY DOESN'T MATTER ABOUT THIS NEWEST DECREE,WE CAN SCREAM ALL WE WANT IT JUST WON'T DISAPPEAR! IT WILL BE IN OPERATION
TILL WE-THE PEOPLE-DECIDE & ACT TOGETHER TO PHYSICALLY REMOVED THIS
CANCER ASAP?i DON'T THINK THAT THERE IS ANY NEED FOR VIOLENCE,ALL WE HAVE TO DO IS...DON'T DO ANYTHING! YES, DO NOT DO ANYTHING?
GO AND PLANT YOUR FOOD AND DON'T DO ANYTHING THE GOVERNMENT ASK YOU TO DO? DON'T BUY ANY FOOD,DON'T BUY ANY GASS,DONT RIDE IN ANY BUS,
DON'T DRINK ANY BEER ETC,ETC,.

Anonymous said...

Sleep well Naz, I will acccompany you to Naboro, and be your cell mate for life.

Anonymous said...

It does not matter how you interpret the meaning of this piece of garbage Shameem...it still projects Fiji as a Police State whether you like it or not.

Why don't you make a stand and put forward an opinion whether the provisions of this shit on paper has some good points at all. Since you are supposedly a consultant on law as you profess to be!

All you do is to be on the safe side and just give an outline of the meaning of the laws. I think we all understand English and don't need this kind of contribution.

Anonymous said...

Naz..Naz...Naz...How much money are you making from the Regime?
But where are your own principles when you preach good governance and transparency after all you have done and shown yourself to be since the beginning of this coup in 2006? How are you seen internationally now compared to Imrana Jalal for example.You are now just a fake, and a big liar.Shame! shame! shame on you.

Jail Mavolo said...

Nashat Shameem...when you are in gaol, I'll be your regular visitor so you can tutor me in all you can offer...I mean everything