The Fair Administration of Justice and the UN Convention against Torture
Permanent Mission of Fiji to Geneva
The Fair Administration of Justice and the UN Convention against Torture
Sharing experiences and building capacity in the Caribbean
The Fijian Path to UNCAT and Beyond
Nazhat Shameem Khan
Permanent Representative of Fiji to the UN in Geneva
Fiji ratified UNCAT on 17th March 2016. It was the 158th country to ratify. At a regional conference on UNCAT ratification and implementation in Fiji in October 2016, Fiji’s Prime Minister summarised some of the cultural challenges to implementation. He said;
“We have long had a culture in Fiji of people resorting to violence; whether it is against women in the home, instilling discipline in our children or the police attempting to extract confessions from criminal suspects. This culture of what we call the buturaki – the beating – is deeply ingrained in parts of the Fijian psyche. But it is simply not acceptable in the modern age. So we have embarked on a process of culture change starting in the nation’s schools. There, we have banned corporal punishment in the hope that if children aren’t beaten institutionally, they don’t grow up beating others. And we are saying far more forcefully than we have said in the past that violence in any form has no place in Fijian life.”
Fiji’s journey to ratification started with the opening of Fiji’s Mission in Geneva, discussions with the Association for the Prevention of Torture and the Convention on Torture Initiative on legal implications of ratification, and ended with a commitment made at our Universal Periodic Review in 2015, that Fiji would ratify UNCAT as a matter of priority. In this paper, I identify challenges to ratification and how they were overcome, our existing work in relation to our reservations, especially to Article 1, and current paths to implementation especially in relation to the justice system. Our story is not necessarily the story of any other State which is thinking about ratification or is taking steps to implement after ratification. However, there are threads in Fiji’s journey which will be easily recognisable in other countries. Our lessons may prove useful in the journey taken by other States.
Fiji is a former British colony, and its legal and judicial system is similar to that of many Commonwealth countries. The criminal justice system is overseen by the Commissioner of Police and Director of Public Prosecutions, with an overall oversight role of the criminal courts. Allegations of improper conduct or violence by police officers may be the subject of an internal complaint mechanism, a prosecution, and/or a trial within a trial in the course of trial. The admissibility of confessions is governed by the Judges’ Rules, and by the Constitution which sets out detailed rights of persons in custody or detention. Breaches of the Judges’ Rules may lead to exclusion but the overriding principle is whether the confession was made voluntarily and without oppression. Breaches of the Constitution will lead to exclusion, unless the prosecution can prove that there was no resulting prejudice to the accused. The burden of proving admissibility lies at all times with the prosecution. The exclusionary rules have been problematic for some time for a number of reasons. Firstly, a trial within a trial is capable of doubling trial time and as most homicide trials have a voir dire, they are costly to run. Secondly, the trial within a trial depends on evidence, and the contest is usually between trained and experienced police officers and an accused person. The judge is forced to decide on the credibility of witnesses before the trial issues are canvassed. Even with a legislative provision that a trial within a trial can be heard by another judge, who is not the trial judge (as is the case in Fiji) this early determination on credibility requires a mental gymnast, not a judge. Lastly, the power imbalance in a police station, creates a high risk of improper conduct by the police, just as the lack of transparency at the police station, creates the risk of false complaints of assault against the police.
In addition to the trial within a trial, the majority of suspects at the police station, when explained their rights by the police, opted not to have counsel visit them at the police station. This in itself, created a risk of confession being obtained unfairly. The purpose of the right to counsel is to correct the inherent power imbalance at the police station, and to protect the accused against unfair and improper police conduct.
Other countries have created new regimes for police confessions. There are custody clocks, custody officers, external complaints procedures, new exclusionary rules, based not on voluntariness but on fairness and reliability.
In the absence of such legislation in Fiji, how were we to approach ratification? This question was an important one when considering ratification.
Another important issue was on prison conditions and the impact of ratification on Fiji’s prison regime. Some years ago, when I was a judge myself, the criminal judges heard bail applications from unrepresented prisoners, who claimed that their conditions of custody were inhumane and degrading and a breach of the Constitution. The prisoners were high bail risks, but the question was whether their conditions of custody, relevant for bail applications, were in humane and degrading, therefore a breach of the Constitution, and thereby deserving immediate release on bail. We decided that they were, after we visited the prisons. The full text of our judgments can be found on paclii but I set out an important passage in relation to the test to be applied in deciding whether conditions were inhumane and degrading;
“Section 25(1) of the Constitution provides:
“Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.”
The words “cruel, inhumane, degrading ...... treatment or punishment” are identical to articles in many international instruments and conventions. They can be found in the Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Unlike other rights (for instance the right to freedom of expression, or the right to equality) the right to freedom from cruel and inhuman treatment is an unqualified non-derogable right. It cannot be qualified in an emergency. There can never be any reason which might justify treating a person in a cruel inhuman or degrading manner.
In Tyrer v. U.K.  ECHR 2;  2 EHRR 1, the European Court of Human Rights considered whether a judicial order for corporal punishment on a juvenile offender on the Isle of Mann, constituted inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. The Court held that the words “inhuman” and “degrading” meant two different things, and that the word “degrading” means that there is a level of humiliation and debasement attaining a particularly severe level. To be degrading, the acts complained of must attain that level of debasement and severity, and must be assessed in the circumstances of the case and in the context of the treatment. The reason given for the treatment is irrelevant because breaches of Article 3 can never be justified. The court held that the nature of the punishment and the institutional nature of the inflicted physical violence whereby the offender was treated as an object led to a finding that the punishment had an element of humiliation which satisfied the required level inherent in the notion of degradation….
To what degree of seriousness conditions of custody need to be before they become inhuman and degrading, must remain a question of fact in each case, and in the personal circumstances of each offender. Breaches of the U.N. Standard Minimum Rules are relevant although it does not inescapably follow that the conditions are inhuman and degrading. Part C of the Rules relates specifically to untried prisoners although the Rules generally apply to all prisoners. Part C reads:
“84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as “untried prisoners”, hereinafter in these rules.
The Rules require that one prisoner should be kept in one cell, that there should be adequate sanitary facilities, and access daily to fresh air and exercise. The greater the departure from the Rules, the greater the likelihood of a finding of a breach of section 25 of the Constitution.
There can be no doubt at all, that it is not in the public interest to release these Applicants pending trial. They both have a history of escaping. They have many previous convictions. The offences with which they are charged are serious and there is a real risk of re-offending whilst on bail. If I were to consider conditions of custody, shameful though they are as merely one of the factors relevant to bail, I would refuse this application. This is because there is a real doubt as to the likelihood of surrender to custody. The State’s concern in this regard is valid.
However, the second step for consideration is whether the conditions are so severely humiliating that they sap at the inherent dignity of the human person or that they debase the Applicants and force them into a situation of degradation. In considering this second step, I am aware that neither Applicant is particularly vulnerable or sensitive. Neither is a stranger to prison or to the criminal justice system. Neither is very young nor very old. Both are mature and healthy young men who await trial on multiple charges relating to violence.
However, I have visited the prison cell in which both Applicants were expected to await trial. The circumstances of custody which I witnessed were serious. The sharing of the cell with two other inmates, the foul smell from the damp bedding and the bucket latrine, the wet washing hanging inside the cell, the lack of adequate light, the mosquitoes, the 23 hours spent in the cell without fresh air and exercise and the fact that the Applicants, ate, slept, relieved themselves and lived in that atmosphere day after day without relief, lead me to the conclusion that the conditions of their custody dehumanise the Applicants and degrade them as human beings. I consider that the level of severity of such degradation to be such that the Prisons Department is in breach of section 25 of the Constitution.”
The court then granted bail on this ground alone. Since 2004, Fiji has seen the building of new remand facilities, and judges continue to apply the Nelson Mandela Rules to bail applications and constitutional redress applications by prisoners.
The question for Fiji was whether the test for what was inhumane and degrading would require a change after ratification, and whether we would need constitutional amendment.
Another question was in relation to the training of police officers. After ratification, UNCAT would need to be integrated into police manuals and training instructions. How could we get police ownership of the issue?
Fiji’s ratification process is through a vote in Parliament, but most conventions and treaties also go through a Standing Committee of Parliament, on human rights. In order to ensure that the submissions from police, military and prisons were informed and showed institutional commitment and leadership, we had to first ensure that these institutions were well aware of the implications of ratification. Thus awareness of the Convention and its implications for institutions within the justice system had to be priority before ratification, to give these institutions a sense of ownership over the Convention.
Lastly, Fiji had and has no criminal offence of torture although it has of course offences of assault, assault causing grievous harm, and act with intent to cause grievous harm. UNCAT requires States to create an offence of torture, and of causing cruel inhumane and degrading treatment. Our challenge was that the definition of torture in our Constitution was broader that the definition in Article 1 of UNCAT. What criminal offence should we create, one which was consistent with the Constitution or one which reflected the narrower definition in Article 1 of UNCAT? Discussion papers and legal analyses assisted by the APT legal experts flew between Geneva and Capital, with both the Director of Public Prosecutions and the Attorney-General’s Chambers involved in this debate. In the end Fiji resolved the conflict on definitions by reserving on Article 1, a position we are currently having further discussions about.
When eventually the Bill for ratification went to the Standing Committee, every submittee including the police force, the military, the Office of the DPP, and the Ministry of Foreign Affairs agreed that Fiji must ratify. When the matter went to Parliament there was no dissent on ratification, although there was disagreement on the reservations.
- 3.Implementing UNCAT
Since 2016, we have charted a clear path to implementing UNCAT. A project to ensure legal representation on arrest, called the First Hour Procedure has already concluded its first pilot stage. Based on the procedure adopted by the laws of Geneva and supported by the Geneva Bar, the police agree to hold off interview after arrest and agree to contact a lawyer at the Legal Aid Commission within the first hour of arrest or detention. A lawyer rostered for the day and night then arrives at the police station and explains to the suspect the rights of persons in custody, including the right to counsel. The suspect then decides whether he or she would like the lawyer to remain as counsel, or whether the right is waived. Waivers after a lawyer has explained these rights personally are more likely to survive a challenge in court. A shortcoming of the project is that the private Bar has yet to give its support to the scheme. However the Legal Aid Commission, which has an enhanced presence in Fiji including in the rural areas, continues to operate the First Hour Procedure. We are proud that the scheme was initiated as a result of collaboration between the Geneva Bar and the Fijian Mission in Geneva.
Another initiative launched as a result of ratification, was the video recording of confessions. I will be frank and say that this project has been more challenging. The project was commenced by a transfer of funds from the judiciary to the police to allow the commencement of a pilot project. The Chief Justice of Fiji felt strongly that where statements are video recorded, there is greater professionalism in the criminal justice system and greater integrity in the evidence placed before the courts. He is of course correct. We need to stop thinking of the criminal justice system as a series of silos doing different jobs with the same purpose. It is true that the different institutions of the criminal justice system are independent of each other. This is necessary for the accountability of each institution. Just as Bench and Bar act as checks on each other, the police force is ultimately subject to the DPP’s decision to prosecute or not, including in relation to complaints against police officers. In working together as a team to ensure the protection of the rights of suspects and in protecting suspects from torture and cruel and inhumane treatment, there must be no compromise on the ultimate accountability role of each institution to each other. The end product of true independence, is this ability to hold others to account without compromise.
However, in order to properly implement UNCAT, the criminal justice heads of agencies had to agree on the path of greater transparency in obtaining confessions. There is no doubt that in Fiji regular meetings of the heads of these agencies would be challenging, because of the work loads of each agency. We decided to invite them to Geneva to hold talks with each other, with the APT and CTI, with the Geneva Bar and the Geneva police representatives, and to participate in a side event on this path to implementation. Our first side event saw declarations of commitment to video recording by the Deputy Commissioner of Police, the Chief Justice, the Legal Aid Commission, the Human Rights and Anti-Discrimination Commission, and the Director of Public Prosecutions. There were discussions on adopting a different style of interview, one which was less confrontational. There were discussions on the costs of the equipment and of preparing transcriptions. We enlisted the help of Mike Kellet a British police expert in this field and arranged training for senior police officers at the police academy in Norfolk. The Chief Justice was able to issue a Practice Direction on the use of video recording in court. We launched a pilot video recording project and waited to see the transcripts arrive in court. Unfortunately, progress has been slower than expected. We have gone back to the drawing board to see whether the barriers are attitudinal or financial. Discussions in a stakeholder’s meeting organised by the EU Access to Justice Project this week is likely to discuss ways forward. The Chief Justice remains in contact with the police to give firm encouragement for the fruition of a plan which will do much to create a climate at the police station in which torture, assault and impropriety are less likely to flourish. We hope that by September, we can again invite the institution heads to Geneva to re-evaluate the project and to decide on a constructive path forward. What is certain however, is that the travel to Geneva, the speaking in a side event, the team building amongst the stakeholders, and the exposure to the human rights world at the Council, have had the capacity to make positive changes in the way the criminal justice system operates in Fiji.
I now turn to prison reform. The evaluating of conditions of custody against standards which are accepted internationally, has been embraced by the judiciary. Fiji is a member of the Group of Friends of the Nelson Mandela Rules, based in UN Vienna. The UNODC has much technical capacity building expertise to help our prisons adapt to the Rules, and we have already had discussions with UNODC on possible capacity building work in Fiji in relation to the prisons. In 2017, the OHCHR conducted a cell review exercise for Government which is intended to advise Government on good practices in relation to conditions of police and prisons custody. Clearly the Rules have become a powerful mechanism for the prevention of torture. Our next project for the implementing of UNCAT is therefore compliance with the Nelson Mandela Rules. The Geneva Mission hopes that we will welcome the Corrections Commissioner to Geneva for the September session of the Human Rights Council to discuss in a side event on UNCAT, the Nelson Mandela Rules, and prisons, and steps we might take to adapt to the changes which are necessary as a result of the ratification of UNCAT. All of this is of course subject to the approval and support of Fiji’s Corrections Commissioner.
What do we anticipate will be our next priorities? One, a reconsideration of a criminal offence of torture and cruel and inhumane and degrading treatment. Two, a review of the police training manuals to include UNCAT, First Hour, and video recording of statements at the police station. Three, UNCAT awareness training with police, corrections, and military to ensure that we are ready for the participation of these disciplined forces in emergencies. Four, a review of Fiji’s Police Act, which has already been identified by the Commissioner of Police as work in progress, and which may consider the introduction of a regime similar to that of the Police and Criminal Evidence Act in the UK. And, of course, Fiji’s first review by the Committee on Torture which is due this year.
There is much to be done. However, the ratification of UNCAT has already given us immense advantages and positive developments. UNCAT has allowed us to map a path to the reform of the criminal justice system in relation to the treatment of suspects and prisoners in a way which is coherent and organised. Ratification has led to an unprecedented level of cooperation amongst criminal justice agencies, and an encouraging joint determination to respect UNCAT and constitutional rights. This is no box ticking, face saving exercise. These UNCAT reforms have the capacity to reforming fundamentally the police investigative ethos, the integrity of the criminal trial, the streamlining of the criminal case management system, and the conditions in which we keep our prisoners.
Nelson Mandela famously said that a society is judged not by the way we treat our privileged, but by the way we treat our least powerful and most marginalized citizens. He was right. As a matter of human dignity, we have an obligation to conduct a trial, an investigation and prosecution, in a way which does not undermine human dignity. UNCAT reforms are ultimately about the universality of the right to dignity. But the reform process is also about creating greater professionalism in the way evidence is gathered. A police force is not a counselling service. Police officers are required to investigate crimes and bring offenders to justice. What we have learnt in the ratification and implementation process, is that greater professionalism and transparency at the police station, enhances the ability to investigate well, with more narrow margins of error. We have also learnt that with greater professionalism in the investigation process, the prosecution is more likely to prosecute effectively and to be in a better position to judge who should be prosecuted and on what evidence. And we have learnt that UNCAT reforms will lead to greater integrity of the criminal trial, greater efficiency and better use of court time, and a reduced likelihood of erroneous verdicts. Criminal justice reform, although ultimately an executive driven process, must have at its centre the protection of the ideology of the legitimacy of the judicial system, which is the basis of a strong and independent judiciary. That legitimacy can only be given by society. And society has high expectations of a criminal justice system which is fair, which promotes dignity, which holds offenders to account but which does not convict the innocent. UNCAT offers us a clear path to delivering on those expectations.
Nazhat Shameem Khan
PR of Fiji to the UN in Geneva and Vienna
4th June 2018
 Section 13 of the Constitution sets out these rights;
13.––(1) Every person who is arrested or detained has the right–– (a) to be informed promptly, in a language that the person understands, of–– (i) the reason for the arrest or detention; (ii) the right to remain silent; and (iii) the consequences of not remaining silent; (b) to remain silent; (c) to communicate with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid; (d) not to be compelled to make any confession or admission that could be used in evidence against that person; (e) to be held separately from persons who are serving a sentence, and in the case of a child, to be kept apart from adults unless that is not in the best interests of the child; (f) to be brought before a court as soon as reasonably practicable, but in any case not later than 48 hours after being arrested, or if that is not reasonably possible, as soon as possible thereafter; (g) at the first court appearance, to be charged or informed of the reasons for the detention to continue, or to be released; (h) to be released on reasonable terms and conditions, pending a charge or trial, unless the interests of justice otherwise require; (i) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; (j) to conditions of detention that are consistent with human dignity, including at least the opportunity to exercise regularly and the provision, at State expense, of adequate accommodation, nutrition, and medical treatment; and (k) to communicate with, and be visited by,–– (i) his or her spouse, partner or next of kin; and (ii) a social worker or a religious counsellor. (2) Whenever this section requires information to be given to a person, that information must be given simply and clearly in a language that the person understands. (3) A person who is deprived of liberty by being detained, held in custody or imprisoned under any law retains all the rights and freedoms set out in this Chapter, except to the extent that 16 any particular right or freedom is clearly incompatible with the fact of being so deprived of liberty.
 http://biblioteka.sejm.gov.pl/wp-content/uploads/2017/03/Fiji_ang_010117.pdf - Section 11 states; Freedom from cruel and degrading treatment 11.––(1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment. (2) Every person has the right to security of the person, which includes the right to be free from any form of violence from any source, at home, school, work or in any other place. (3) Every person has the right not to be subjected to any scientific or medical treatment or procedure without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.
 This is a reference to section 25 of the 1997 Fijian Constitution, now replaced by section 11 of the 2013 Constitution