Law Fiji - Nazhat Shameen & Ana Tuiketei

LAW, ORDER AND JUSTICE

 

LAW, ORDER AND JUSTICE

A paper presented at the 2005 Convention
for the Fiji Institute of Accountants

By Madam Justice Nazhat Shameem,
High Court of Fiji
____________

In recent months, much concern has been expressed at what has been perceived as an increase in crime in Fiji.  That concern comes not only from citizens who fear for their daily safety and security, but also from those who fear for the effect of such perceived insecurity on potential investors, local and expatriate.  Despite frequent assurances from the police, that violent crime is in fact not on the increase, Fiji’s public remains unconvinced.  Certainly, almost daily media reports of yet another case of robbery with violence, and anecdotal accounts from friends and neighbours about housebreaking, entering and larceny cases, do not assist to convince the public that crime is not a problem in Fiji.

In this paper I will consider some common misconceptions about crime, some social factors which appear to accompany criminal activity, and some of the dilemmas faced by the courts in dealing with what is often referred to as a “law and order” problem.  I also discuss the word “justice” and its relationship to law enforcement.  I hope that this paper gives to you all, an idea of some of the issues that I believe are important to Fiji’s society of today.

The “Causes” of Crime

This is an age-old problem of philosophy.  Is criminal behaviour determined by social/genetic/biological factors? Or is it explained by a series of factors which may help us to understand criminal behaviour without looking for a cause? In simple terms, is human behaviour determined, or do we by exercise of individual will, decide our own fates?

This is not a good forum to discuss the philosophy of individual will versus determinism.  It is enough to say that logically, if poverty causes crime, then all poor people should be criminals.  If alcohol causes crime, then all alcoholics should be criminals.  This is not the case.  So we cannot say that any one factor causes crime, or even a combination of factors.  What we can say is that people commit crimes for different reasons, that different types of crime are influenced by different social factors, and that of all social groups in Fiji, our young Fijian men, between the ages of 17 and 25 appear to gravitate towards violent crime, and our older men of all communities appear to commit white collar crime while sexual offences are committed by all age groups.  We can also say, that there appears to be a direct correlation between criminal behaviour and parental neglect, family violence and abuse, school drop-out rates, the urban drift and unemployment, and alcohol and drug consumption.  I do not say that these factors cause crime.  I say that many criminals have one or more of these social factors present in their lives, when they appear in court to try to explain their behaviour.

We in Fiji are in many ways no different to a dozen other developing economies in the world.  With a large national debt, dependence on aid and agriculture and recurring natural disasters and political instability, we do not have large stocks of available resources to spend on social welfare.  Yet, criminologists have linked social problems and attitudes as a close relation of criminal behaviour.  Mensah Adinkar in his book “Crime, Deviance and Delinquency in Fiji” said this about the status of young people in Fiji:

“Youths in Fiji are a social group without a voice.  Among all of the nation’s major ethnic and racial groups, the status of young people from infancy until young adulthood is one of being seen and not heard.  With few exceptions, children are excluded from participation in decision-making in the family, and are even limited in the degree to which they can make decisions that affect their own lives …. The dependent status of youths has serious implications for juvenile delinquency ….. It is no coincidence that youths begin a career of crime through the commission of such property offences as shoplifting, larceny, housebreaking and burglary …. Larceny today is the most common form of juvenile delinquency in the country.”

Participation in crime is accompanied by increased teenage pregnancy, suicide and the use and abuse of drugs and alcohol.  What is Dr. Adinkah saying in his analysis? He is saying that if we never ask our children for their opinions, never encourage them to make responsible choices for themselves, if we mollycoddle them, neglect them, never speak to them and keep them away from adult company, how can we expect them to choose not to take drugs, or have sex, or take part in drinking parties? How have we as parents encouraged them to form their own opinions and to express them?

In the raging debate in our newspapers about corporal punishment, has anyone asked the children of Fiji for their views? Has anyone asked children who have been hit at school and home, how effective it was as a form of teaching? No one asks the children, because we do not value their opinions.  And when they drift into crime, we wonder why they were unable to form an opinion that crime is wrong, and to express that opinion.  Clearly, there is something deeply flawed in the way we are bringing up our children.

Then, there is family violence.  Domestic violence is infamously underreported.  Many of our children, day after day watch their fathers beat their mothers, and their mothers’ tolerance of such violence.  They will grow to believe that violence, especially inflicted on those weaker than ourselves, is an acceptable form of human behaviour.  Corporal punishment and domestic violence have been features of our society for many years.  Corporal punishment in schools was only abolished two years ago, by the judiciary.  If our society is becoming increasingly violent, is there a possible link between crimes of violence, and domestic violence at home? And between violent personal behaviour and the violent takeover of governments?

I spoke earlier of parental neglect.  Editorials in all our newspapers have again and again called on parents to spend more time with their children and less on social and church activities.  They have spoken about the need to cut down on nocturnal never-ending grog sessions (in all ethnic communities) and to spend the same time with their children and their homework.  To no avail.  We as parents need to confront our own failings in this regard.  With greater supervision, our youth would be less likely to fall into the traps of the rural to urban migration, the nightclubs, the drugs and the billiard parlours.

Parents have a particularly difficult task today.  They must fight off the effects of the mass media.  The movies of today have become more violent, and more sexually explicit.  This may have become a fact of life from which eventually there is no shelter.  However, parents have a duty to teach their children to choose what they watch wisely, to self-censor.  Many films portray women and children as sex-objects.  Why are we surprised when 14 year old boys begin to rape 2 year old babies? The impact of the mass media puts a great burden to parents to ensure that negative portrayals of people and their conduct do not destroy our children’s minds.

Alcohol and drugs have become a disease in Fiji.  Many offences are committed under the influence of alcohol.  The effect of alcohol on the people of Fiji should not be under-estimated.  A significant proportion of the family budget is spent on alcohol and cigarettes.  Bootlegging is a most lucrative past time, and children as young as 11 have already drunk alcohol.  The drinking of alcohol is learned behaviour, just as violence and dishonesty is.  In asking why young people drink and commit crimes, ask yourselves whether you have taught your children any better?

I turn lastly to social attitudes towards women.  In all conservative and patriarchal communities, women have little value.  Fiji is no exception.  When women are not valued, nor treated as equals, they are likely to be treated as chattels, as people of no importance.  They are likely to be beaten, raped and abused.  And so it is in Fiji.  It is too easy, when reading in the papers about the rape of a girl by her father, to dismiss the father as a sick man.  The truth is, he is not a sick man.  He is a man who treats his daughter with contempt and disrespect, because society has taught him that women and girls have no value and deserve no better.  Arguably, the sexual abuse of children has always occurred.  What is different today, is the courage of the children to speak out about it.  There is no perceptible change in patriarchal values, only in the determination of the media and women’s groups to make child abuse and rape a visible crime. So more and more cases of the sexual abuse of children are now finding the light of day.  But make no mistake about it.  The rape of women and children has nothing to do with psychological illness or sexual deprivation.  It is a reflection of the offender’s attitudes towards women and children.

I have not dealt today with the crimes of corruption and fraud.  They are generally believed to be driven by greed and opportunity.  They are committed by powerful and wealthy people and appear to cause very little public concern, except when committed on a large scale such as the NBF fraud.  However, white-collar crime is, I believe, a growing problem in Fiji.  It is a problem which gained in importance after our military and civilian coups.  White collar crime thrives when there is political and economic instability because the criminals make use of the breakdown of financial procedures.  White collar crime tells a story of people who have everything, but who want more.  Such crimes do not create a perceived law, order and security issue but it is certainly true to say, that in the long term, they pose a far greater threat to Fiji’s security and stability than your average house-breaker.

White collar crime aside however, I consider that criminal behaviour is closely linked to the way in which we are bringing up our children.  The more vulnerable the children, for instance because of being in single-parent families, or living with relatives in the town, or experiencing hormonal changes in teenage years, the more important it is that they are taught well and wisely to make important choices in their lives.  Regrettably, we are neglecting our children.  We do not consult them, we do not listen to them and we spend little time with them.  If, as a nation, we fail our children, how can we complain when they hold up our banks with guns, or break into our houses?

The Justice v. Welfare Model

In direct response to what is seen as an increase in crime, the public demands punishment for crimes.  It is no longer interested in soft options, in probation, in supervision orders and suspended sentences.  One editorial recently said of a sex offender – “lock him up for life and throw away the key.”

As a former prosecutor, and as a judge who has a reputation (I suspect) of being a particularly tough sentencer, you would expect me to agree.

I do not.  Firstly, I am an advocate of creativity in sentencing.  The welfare model of justice advocates the welfare of the offender as paramount, and more important than punishment or protection of the public.  Such a model is relevant when judges are sentencing a juvenile for petty theft, or a woman for infanticide.

The justice model is about just deserts.  Give to the offender what he deserves.  In a case where a habitual offender commits serious violet crimes over and over again, when he has become a menace to the public, he must be given a sentence which reflects society’s disapproval of such conduct, and which punishes him for it.

However I with other judges, have deep regrets about a number of aspects of our justice system.  Today I shall take the opportunity to air those regrets.  The first is the lack of creative sentencing options.  In recent years, the Community Work Act is the only new sentencing option given to us and even that is limited by the small number of community work supervisors available in the community.  Although we often refer offenders to the turaga-ni-koro of a village, we receive no feedback as to the success of the sentencing scheme.

We lack a sentencing database to give us information about the types of sentences passed in other courts.  Although we now have more guideline judgments passed by the Court of Appeal and High Court, we need more.  We need guidelines for all offences so that sentencing can be consistent.

Another regret is the condition of our prisons.  The Commissioner of Prisons himself has expressed concern in this regard.  Our prisons are antiquated in structure and in administration.  Dr. Adinkar said in “Crime Deviance and Delinquency in Fiji” at page 20:

“Prisons in Fiji are neither designed nor adequately equipped to serve a rehabilitative function – neither in their policies nor in their structure.  Counselling and other psychological services, of which sex offenders are in particular need, are unavailable to most prisoners.  Vocational training and other constructive activities that could assist unskilled prisoners to pursue a normal life outside of prison upon release are limited.  Instead, prisoners are “warehoused” in institutions where they are used to cultivate cassava, raise pigs and bake bread.  Thus, when prisoners leave, they have changed little from the time they committed the offence; or if they have changed at all, they have changed for the worse…..”

There is a view often expressed by those who favour the justice model of criminal justice or the “throw away the key” model, that prisoners should be kept in conditions which degrade them, so that they can learn the error of their ways, that in Fiji, prison conditions are better than village conditions.

I do not agree with this view.  I believe that this view is based on a misunderstanding of the philosophy of imprisonment.  The punishment in imprisoning people is the confinement, the inability to move freely in society.  In the context of Fiji, that in itself is a most serious punishment.  The concept of imprisonment was an introduced, European punishment.  To be locked away from society, isolated from the community which is the raison d’être of every Fijian, separated from the vanua and from the family, philosophically one could think of no greater punishment.  The purpose of imprisonment is punishment, deterrence and the protection of the public.  To expose prisoners to greater degradation than the act of confinement is to remove the judge from the role of a just sentencer, to one of sadist.

Philosophically therefore (and quite apart from the provisions of the Prisons Act) it is the business of the judge to ensure that prisoners are humanely contained.

I fear that some of our prisoners are not humanely contained, and the problem is not always a lack of resources.  In October last year, the criminal judges in Suva were given an OHS Report about the state of the Korovou Prison.  As accountants, you will find the report a fascinating read.

The Prison was built in 1912.  In 1971 the Public Works Department said that the concrete structure was collapsing and was condemned to demolition.  Do you suppose our post-Independence government was interested? Not at all.  In 1980, it was again condemned.  Indeed, the engineers said that it was likely to collapse at any time.  Still no official movement.  In 1986, engineers conducted concrete compression tests and declared the building to be unsound.  No progress.  In 1992 the engineers were beginning to sound strident and desperate.  They said people could be killed because the concrete and iron supports were cracked and rusty.  In October 2000, the Senior Engineer of Structures condemned the building again.  In September 2004, the Occupational Health and Safety Service of the Ministry of Labour said that the demolition of the entire prison was the only answer.

When the building collapses on several prison officers and 52 inmates, who will be to blame? The judiciary for sending people there? The many governments for ignoring the engineers? Or the Commissioner of Prisons, who now, according to the media, wishes to use the Korovou Prison exclusively for the most fortunate remand prisoners? Who will pay for the inevitable loss of lives? And if inmates are released because the judiciary no longer wishes to take responsibility for this shocking state of affairs, isn’t it in fact the public who pays the price?

The humane containment of prisoners is a feature of all civilised societies.  We like to believe that we in Fiji are civilised.  We like to turn up our noses at social conditions in Guinea, Bissau or Mongolia or Nigeria.  But, we are no better than the least civilised of nations if we cannot house our prisoners in conditions which do not degrade them.  Of course, the judges’ prison visit discovered problems other than the condemned structure.  Remand prisoners have no soap to bathe with.  They have skin diseases, and they have only minutes to take a shower.  They must hang their wet washing in the cells, where the smell from the washing, the damp walls, and the sewage from the bucket latrines is oppressive.  These problems have nothing to do with lack of resources.  They can be cured by an enlightened administration with existing prison resources.

The people of Fiji, no matter how poor or vulnerable are entitled to the same standard of human dignity as the people of the United Kingdom or of Australia.  To suggest otherwise is to deny us our humanity, and to deny that human rights are universal.  Our judiciary with the judiciaries of all Commonwealth countries, has pledged to protect and advance human rights through the law.  It is a sacred pledge and it expects judges to implement the law in a way that gives meaning to the lives of all our people.

To shirk that responsibility when faced with a perceived law and order crisis, to degrade and debase in the interests of national security, is inconsistent with this judicial duty.

Cicero was wrong.  In battle the laws are not silent.  The laws must never be silent, even in the face of public disapproval, even in the midst of “the war against terror”, even during a political crisis.

In recent years, many executive acts have been passed in the interests of law and order, and allegedly to combat terrorism.  And yet, in nation after nation, judges have continued to apply the universality of human rights, and to affirm the “moral principle of each individual’s personal and equal autonomy and human dignity” (Bangalore Principles of Judicial Conduct 1998).

In 1999, the Supreme Court of Israel was asked to consider whether the General Security Service of Israel was entitled to shake suspected terrorists, or to deprive them of sleep or to force them into “frog crouch” positions, while interrogating them.  The Court declared that these methods constituted unacceptable interrogation tactics.  In the course of its judgment the Court said this:

“This decision opens with a description of the difficult reality in which Israel finds herself security wise.  We shall conclude this judgment by re-addressing that harsh reality.  We are aware that this decision does not ease dealing with that reality.  This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it.  Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.  Preserving the rule of law and recognition of an individual’s liberty constitutes an important component in its understanding of security ….. Deciding these applications weighed heavy on this Court ….. We are however judges.  Our brethren require us to act according to the law.  This is equally the standard that we set ourselves.  When we sit to judge, we are being judged.  Therefore we must act according to our purest conscience when we decide the law.”

Conclusion

It would be too simplistic to suggest that crime is caused by social ills.  However, we can say that criminal offenders’ lives often show a high degree of parental neglect, of resulting inability to make wise choices and of taught violence and gender-driven patriarchal attitudes.  If we are serious about reducing the incidence of crime in Fiji, we need to evaluate our own conduct and attitudes as a generation, especially in our rapidly changing and materialistic world.

We need also to think intelligently about the treatment of our offenders once they enter the justice system, and to ask if we do enough to ensure that re-offending is kept to a minimum.

Finally, we must never expect the judiciary to sacrifice the protection of individual human rights and freedoms in the interests of national law and order, because it is the judiciary’s duty to ensure that the rule of law is preserved for all persons, big and small, at all times.  If we as a nation are to sacrifice the dignity and humanity of the weak for the security of the majority and the strong, we lose our right to call ourselves civilised.  The reduction of crime must rest on surer humane foundations.

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