Fiji’s Constitution, a 16-year-old suspect and acts of impunity

THE following opinion piece by Fiji solicitor, Filimoni Vosarogo is a response to the reported detention and questioning of a 16-year-old boy for allegedly writing vulgar language on the back of a bus, which was aimed at Fiji’s Prime Minister. The boy was reportedly taken in through a ‘citizen’s arrest’ enacted by two Fiji Military Forces soldiers.

THE case of a 16-year-old being shuffled off into a vehicle by unknown men despite the protest of his aunt is an act of ‘thuggery.’ No one should be allowed to act with such impunity and not be answerable for it, servants of the law or not. For a few days, we waited for details of the so-called arrest and or investigation into the bus dirt writing. People called for an investigation and update. Then as surely as water down a creek, it all seems to arrive to the sea of public knowledge. Fiji’s Human Rights and Anti-Discrimination (HRADC) Director said he communicated with the Police Commissioner and was told they are investigating. What they are saying really is – hold off, we are doing our job! HRADC Director then reminds the public to understand such process, as we should all try to avoid trial by media. That, I understand! (for now, I will come back to you Mr Director in a while in the case of Bulitavu).

Within days, the Police Commissioner (COMPOL) comes out publicly, in the media and issues a press release, even praising the ‘off duty military officers’ who responded to what we are made to assume was a call of duty to investigate a young offender (defined in Section 2 of the Juvenile Act 1973 as a person between 14 – 18 years) for alleged offences. We are not informed to date, what they are! So, if they were officially required for a statutory duty, why was there a reference to private or citizen’s arrest in the press release. From the release, it looks as if the men were conducting a ‘citizen’s arrest’! Surely, the COMPOL hadn’t been advised properly or that the drafters think, well, if we give the public such big words and sections of the law and God forbid, the Constitution, no one would question it. Well, not this time! Let me unpack these reasonings to see if the skeleton argument could stand.

For a citizen’s arrest to be lawfully made, the offence has to be committed in the presence of the person effecting the arrest. So, there is the procedural and evidentiary requirement of contemporaneity of the suspected crime or crimes and the arrest, not days later. Secondly, one can only effect citizen arrest for an indictable offence.

Let me put this at rest now. No possible offence under the Public Order Act 1969 nor any under the Crimes Act 2009 that could possibly be charged for the bus dirt writing is indictable – period! If the press release drafters are referring to the same Section 22 of the CPA 2009 I know, someone slept through that criminal law class, not me! (I’d have to admit, I had my fair share of sleeps in criminal law and procedure, they tend to get boring by the hour). All in all, it was a mish mash of reasoning, singularly could be capable of belief if packaged right but collectively, designed to pull wool over people’s eyes. 

Back to the 16-year-old. No parent or guardian should ever have to face this type of impunity again at the hands or force of State officers, authorised or not. Too much power in the hands of a few always result in tyranny. These men who by force effected the arrest with such arrogance of the law, may not know of the historical and horrendous era of decades of tyrannical powers in the earth’s vast continents in the past and their damage, but historians and legislators alike from nations who have risen from such times have called and treasured from their experience, ‘human beings must always be jealous and guard their liberty at all cost.’ They are too costly to lose! 

That is why the bill of rights in our constitution, by virtue of it being a negative document, is never to be read as the government giving us freedoms. It is not! It is the people, through the constitution-making process, giving the government a set of enumerated powers, we all agree to as limitation to our inalienable rights and freedoms. It is upon those limitations, and only on those limitations, can the government act on limiting it.

There was no reason on earth, why the police themselves didn’t make the arrest, if there was reasonable cause to suspect an offence was committed. When it comes to young offenders, policing takes on a different shade altogether. Parents or guardians are required by law to be present.

The safeguards of Section 13 of the Constitution must be applied, if he was indeed, lawfully arrested. The Social Welfare Director becomes involved in certain cases as guardian ad litem. These are matters that these macho men know no ounce about in effecting their own brand of arrest. That is why there is a specific Juvenile Bureau in the Police Force, they know of procedure and of how to deal with them. The Police was better equipped to deal with the issue and for want of reason, how they were not involved in the investigation baffles me. 

Now to the Constitutional powers of the Commander of the Republic of Fiji Military Forces (RFMF) having overall security of the nation responsibility and the rest of it. Yes, I have read Section 129 and 131 of the Constitution, dealing with the powers of the COMPOL and Commander RFMF (CRMF) respectively. No, I don’t agree with the drafted press release on the application of Section 131 – CRFMF powers. 

The press release appears to suggest that for a single suspected breach of the law by a young offender (and only suspected), the power of the Commander had to be activated, as if the thousands of police officers, were incompetent to handle it. To ensure that security, defence and well-being of Fiji and all Fijians is by construction, a law designed to give the Commander the power to ensure that at no time or hour, borders, zones or homes are endangered by external elements and or invading forces.

The section doesn’t mean what the press release drafters think it meant. The section is a protection law designed against external invasion, to say it in modern warfare terms. Internal domestic policing of crimes or any other law where the result of which is, an interrogative process designed to go to the courts, is governed by the Police Act 1965 and the CPA 2009 and that is squarely, the police’s responsibility. The law is never designed to bring confusion. COMPOL is policing. CRFMF is defence of nation. This applies to their respective employs. The law always maintain connection to common sense to remain humane and it is hoped, we have all come down to that common understanding on the application of Section 129 and 131 of the two most important roles of COMPOL and CRFMF. 

I mentioned to start with that I wondered what offence or offences has been committed here. At best, against what law? The drafted press release makes reference to the Public Order Act 1969 (supposedly, because it is the Act that gives allowance, not direct powers to act but only if certain pre-conditions been met, for military officers can arrest people – none of which was met in this story). You all know there isn’t any breach there!

Has the young offender taken an unlawful oath? Control of arms and ammunition? Meeting or procession breaches? Terrorism offences? Disturbance, malicious acts, incitement to violence or inciting racial antagonism? I have just laid out the general spectrum of public order offences and clearly, bus-dirt writing isn’t any of the above. So, there was no justification on those military officers acting parochially and with egotism to arrest a young offender, barely two years after, graduating as a child by law.

The boy, if indeed, he was the offender, needs to show respect. No one, including any in his family would want their names on a back of a bus like that. He hasn’t committed the summary offence of damaging property (the closest to what he may have done which is graffiti) but he may have annoyed a person. That, if indeed proved is a summary offence, the young offender must apologise for it and the parents or guardians must make such undertaking to ensure that they would teach him patterns of citizenry of which his family may be known for.

I write this as a parent to three teenage boys. To hear that able-bodied men come to your house and act as if they are not accountable to anyone, show force and threatening by their presence and remove without your knowledge and consent one of your sons should never be tolerated in our society. 

One wonders what motive theycarried. Don’t they realise that parents these days fear the repetition of soldiers taking a young person away, who later dies of internal head injuries from the punishment inflicted on him? It is sickening that it continues to be done with impunity. You should be ashamed of your actions. You should go and apologise to the young boy’s family. You should – if you are a father yourselves or becoming one! 

As for you Mr Raj, double standard. You encourage restraint in this case to remove any possibility of trial by media but in the Bulitavu case, you were in the media well before the police even acted and began investigating, culminating in the interview. You like the ‘officers’ I can only whisper the famous Lord Denning casting line ‘Be you never so high the law is above you.’