2006 Annual Lecture

Dr Shaista Shameem, PhD LLM

Director, Fiji Human Rights Commission

Former Special Rapporteur and current Member of UN Working Group on the Use of Mercenaries as a means of violating Human Rights and impeding the exercise of the Right of Peoples to Self-determination.

Human Rights in the Pacific: A Study in Symbolic Interactionism

The Director of the Castan Centre for Human Rights Law, Professor Sarah Joseph, Members of the Judiciary, Solicitor-General, Mallesons, Distinguished Centre Members and Supporters, Ladies and Gentlemen.

I am very honored to be invited to deliver the Annual Lecture of the Castan Centre; the Centre’s reputation for cutting edge work in human rights law has long been acknowledged in the region and has indeed provided us with the intellectual context in which our work as practitioners takes place.

I am particularly delighted to be given the opportunity to exchange views with you about human rights issues facing the Pacific. Before I began practicing human rights law, I was a sociologist by profession, and it has recently become obvious to me that the disciplines of law and sociology are rather more closely related than either sociologists or lawyers have perhaps realized or even cared to admit. I am finding it more and more difficult to promote the value-added of human rights to Pacific islanders and therefore I have begun to examine the methodology as well as the language of human rights.  In fact, I am testing these ideas on an academic and legal  audience for the first time, in the hope that someone will tell me whether or not I am on the right track.

The concept of symbolic interactionism as it interrelates with the human rights legal paradigm is something I have found particularly useful, not only as a salute to my sociological roots, but also as a methodological device. I suggest this methodology because of difficulties we continue to encounter in promoting the human rights idea in the Pacific. Human rights are regarded suspiciously as that which undermine the established order –  an order which, from my standpoint at least, is composed of that hegemonic troika of traditional, church and, in most if not all cases, male authoritarian structures. Of course, many people and societies will respond to new ideas whether or not these ideas will cause them to make structural adjustments, but others will not. It is difficult to guess what will change attitudes. However, there is one thing I do know for sure and that is that an imposed legal framework for the protection of human rights cannot by itself modify a society or create a new social environment.

There is an apparent disjunction between western and Pacific notions of law and order, which include human rights.

As I was writing this lecture, just last weekend, I heard on the news that the newly appointed Attorney General of the Solomon Islands, a former Fiji man, and also now former Australian citizen, was arrested in Papua New Guinea for a statutory rape he had reportedly committed many years ago. He is under the Solomon Island government’s protection and we have a number of different perspectives about how best to deal with the situation - law and order versus sovereignty is one way of describing it - these two values do not always coincide. There is tension between respect for the Papua New Guinea court and sovereignty of the Solomon Island government, represented by its embassy in Port Moresby where the Attorney General has apparently sought refuge.

To add another layer to these interesting legal issues, questions are also being asked about how an Australian citizen, who had committed an offence many years ago, was  able to escape scrutiny for so long - what were the Australian authorities doing all this time to have this man investigated, arrested, charged and tried? He is (or was until this week) an Australian citizen after all. Is he merely the easiest target in the current diplomatic impasse between the Solomon Island government and Australia?

I think Australia may have misjudged the situation in this case. As we know, the problems began with a difference of opinion about the best way to deal with the riots in Honiara earlier this year. The Solomon Islanders want a Commmission of Inquiry; the Australian Government has stated its support for the judicial process. Now everyone agrees that a Commission of Inquiry cannot replace the judicial process, but it can operate as a parallel mechanism, as truth and reconciliation commissions have done in other places. There was a diplomatic mismanagement of the situation. I think we must realize that for any country, symbols of sovereignty (which are subjective in quality) are as important as the objective structures of statehood. Any intervention that looks as though it may have the effect of questioning the sovereignty of a nation state will probably be regarded as an act of aggression, at least symbolically.

It is hard to decide what kind of damage control is required - perhaps a third state should be requested to mediate to resolve the impasse. I think the role of the Pacific Island Forum may be quite critical at this point.

I want to move on now to another part of our region - Timor Leste. At the United Nations General Assembly two weeks ago, the new Foreign Minister of Timor Leste, Jose Luis Guterres, told the members of the UN that the Government of Timor Leste

 ‘is fully aware that reconciliation and justice need to be hand in hand with development’.

I must admit I received a shock when I read this item. The Commission of Experts appointed by the Secretary General of the UN in 2005 to review the judicial processes in Timor Leste was required to evaluate the extent to which ad hoc institutions like the Human Rights Court in Jakarta and the Serious Crimes Unit and Special Panels in Dili had been able to achieve justice and accountability for the crimes committed in East Timor in 1999. During our investigations I heard many times from Government officials, diplomats and even UN staff that the Commission of Truth and Friendship would alleviate the need to provide justice as demanded by both the people of Timor Leste and the international community. Justice was defined as something that was culture-specific.

Less than a year after our report was handed to the Secretary General and through him to the Security Council, where it rapidly started gathering dust, we had another ‘situation’ in Timor Leste. Of course these recent problems did not appear to be related to the failure of the serious crimes process in Timor Leste or Indonesia - that would be a highly contentious idea; nevertheless, it seemed to me that the recent riots and civil strife appeared to emerge out of a crisis of confidence in the ability of the  state apparatus of Timor Leste to resolve the long-standing demand for justice by the people of that country. Unless the problem is dealt with at its root, we cannot easily predict a peaceful outcome for Timor Leste in the long run. Perhaps it was in recognition of this fact that the Foreign Minister at the United Nations acknowledged the inseparability of reconciliation and justice in his speech. This is the first time I have heard anyone from the Timor Leste government mention the word justice alongside reconciliation.

I was reminded of the conclusion of our report to the Secretary General, and I have decided to quote the key paragraphs to you:

‘No violation of human rights, no invasion of human dignity and no infliction of pain and suffering on fellow human beings should be allowed to go unpunished. While recognizing the virtue of forgiveness and that it may be justified in individual cases, forgiveness without justice for the untold privation and suffering inflicted would be an act of weakness rather than of strength’

‘The rapes, murders, torture and enforced disappearances of East Timorese in 1999 and before are crimes that extend beyond the responsibilities of the Governments of East Timor and Indonesia. These are crimes that concern humanity. The Report of the Commission of Experts may provide the last opportunity for the Security Council to ensure that accountability is secured for those responsible for grave human rights violations and human suffering on a massive scale and delivery of justice for the people of Timor Leste’

Commission of Experts Report, May 2005 (emphasis added)

Of course the Security Council did not take that ‘last opportunity’ and while, in a somewhat childish manner, I’d like to say “We told you so”, it gives me no satisfaction to have our predictions become reality in this devastating way in such a short period of time. The symbols of respect for human rights and justice, which could have so easily and economically been established or continued as recommended by the Commission, were not considered to be important.  I recall how difficult it was for the members of the Commission to withstand impassioned pleas by statesmen and women of Timor Leste to leave the resolution of their disputes to their own ‘cultural’ mechanism of the Truth and Friendship Commission.

The universal standards were our benchmarks, however. We were moved by the people of Timor Leste, whose dead still lie in the mortuaries, unable even to be identified conclusively so that families can take them away for burial, or whose disappeared relatives have not been found, nor their disappearances explained, and who did not get any answer except an appeal to reconcile. In such circumstances, the vents will eventually blow- it is not Indonesia that remains at fault here - but the local politicians and statesmen who have not been able to give their people the respect that is due to them, and therefore none can be expected in return. Where does one find fault when an elected Prime Minister is forced out of office by a mob, or when the Prime Minister who succeeds him finds exactly the same problem on his hands without an obvious or simple solution. What is the root of the problem in Timor Leste? What is the best mechanism for its resolution?

Perhaps the answer lies, not in politics, but to application of an objective moral standard, which is the perspective of the Timor Leste Catholic Church. I’d like to read to you excerpts from a letter written to us by the Bishops of Dili and Baucait. We met the Bishop of Dili and he gave us the letter himself.  I quote from it:

‘ The decision of political leaders to deny the Timorese people the right to justice reflects a disintegration of reason and the principles of the natural moral law that is necessary for the common good….’

‘The Catholic community, the majority of the people of Timor Leste, will continue to insist on the moral and legal accountability of all individuals that committed human rights violations and crimes against humanity in East Timor from 1975-1999’

‘International justice is now a crucial last resort to bring justice for the victims particularly as both East Timorese and Indonesian Governments have agreed to a Truth and Friendship Commission that will not submit to a process for genuine justice and real accountability’.

‘It is important that the international community recognizes the consequences of failing to address impunity. There will be no progress in the implementation of the rule of law and democracy in East Timor if impunity prevails’

And further, the Bishops called on the United Nations:

‘to ensure that reconciliation based on the interests of political leaders will not undermine human dignity and the need for justice. The United Nations take into consideration the fact that political interference is now a real issue and challenge for any national process. Due process of the law may be undermined because of the political interest of political leaders. This factor intensifies the need for international justice for the East Timorese people’

We annexed the letter of the Bishops to our report, to impress upon the Security Council that the Head of the Catholic Church was itself setting out the minimum standard of justice for the people of Timor Leste. Of course one can say that UN experts’ recommendations can be ignored or subjected to political lobbying within the United Nations - but what are the consequences of ignoring the plea of the Head of the Catholic Church - you may recall accounts of killings taking place within the Bishop’s compound - the sanctity of hallowed grounds was itself violated in 1999. Again this year, people sought refuge in the Bishop’s compound.

In my experience, it is not normal for a Church to so directly reprimand the political leadership of a country, as well as pointedly inform the international community that there was no justification for the setting aside of principles of justice. The Bishops’ conscience is no doubt clear- but what a hollow victory it must seem to have one’s dire warnings so quickly become reality. As they say, God works in mysterious ways- sometimes making history repeat itself very dangerously.

Our recommendations to the Secretary General were as follows:

(1) to set up an international crimes process within Timor-Leste to continue the work of the Serious Crimes Unit and Special Panels, and

(2) to have re-trials in Indonesia within six months, under a reformed judicial process, of persons indicted and, if (1) and (2) would not be done,

(3) to have the Security Council adopt a resolution under Chapter VII of the UN Charter to create an ad hoc international criminal tribunal for Timor Leste to be located in a third state, or

(4) to use the International Criminal Court as a vehicle for investigations and prosecutions through some innovative procedure. Finally, we suggested that none of this prevented any member state of the UN to lend their jurisdiction to the international community at any time to pursue the investigation and prosecution of persons responsible for serious crimes in East Timor in 1999.

Our report was based on an understanding of the standard minimum rules of justice derived from international instruments which express the commonality of experience and protection of humanity within a legal framework and which supposedly we all share irrespective of culture, geographical location and political persuasion.

But, as human rights lawyers, activists and theorists, I think it’s time we asked some really hard questions about what is actually going on in our societies that makes it so difficult for us to be effective in our work. And also whether Australians should take a closer and more analytical look at the region in which they are geographically placed.

I don’t know whether Australians feel that their rights are being protected adequately within their own current legal and political framework. Perhaps most people here think they are protected because I do not see any signs of building a constitutional (I mean Federal) framework for a Bill of Rights; but I may be wrong. I think that the structures of law and order, and indeed justice, must be strong enough to withstand violations or breaches on the part of the State so that there is no need for constitutional protection.

It may be its secure position with respect to law and order, or delivery of justice internally, that allows the Australian authorities to mis-read the signs of disenchantment with its regional policies in the Pacific.  I see these signs in a number of places - and it has been building up for sometime. It seems to attract an expression of benign concern in some quarters, but expresses itself as a more trenchant disturbance in others. The problem is that at one level, there are some justifiable responses to things going on in the Pacific, but at another level, the self-interest, which is natural for all states, is being used to dismiss even good ideas - like democracy, good governance, and respect for law and order. It is important that Australia gets it right substantively as well as procedurally; otherwise the baby is gone with the bathwater and neither the Pacific Islands, nor Australia, will benefit in the long term.

Let me go on now to what I think are some issues of concern:

The first is Australian identity. Australia is not seen as a Pacific Island state, for all that it is a member of the Pacific Island Forum. Within the United Nations regional grouping, Australia is a member of the Western European Group. It is an anomaly that I cannot understand, and I am sure most people find puzzling. The Pacific Island countries are in the Asian group- now defined more broadly as the Asia-Pacific group, though it has more Asian than Pacific focus. The Western European identity of Australia does put it at odds with Asian regional policy at times. It also means that at the UN level, European regional politics may dominate Australian concerns as against those of the Asia/Pacific. There is, therefore, some suspicion of the Australian interventionist agenda in the Pacific.

Secondly, since 9/11, Australia has been regarded as the United States’s voice in the Pacific on security issues. This is because of Canberra’s stated policy that the Pacific Island states must be prepared to withstand a terrorist attack in the form that faced Bali, or that any of the islands could be used as a staging post in an attack on Australia, or the United States. But beyond that, we have also heard the Prime Minister of Australia say quite recently in response to events in the Solomon Islands, that so-called ‘failing states’ could pose a security threat to Australia.  Thus, Australia has set itself apart from the rest of the Pacific, outside it, in fact. There is slippage in terms of trust in the relationship between Australia and the rest of the Pacific.

Thirdly, there is the historical connection that has never really been properly articulated. Australia’s past activities in the Pacific have been undertaken as an extended arm of western Europe. This is particularly so in terms of protectionism and outright colonisation of countries such as Papua New Guinea, its investments and export back to Australia of profits through companies such as Colonial Sugar Refining Company (CSR) and Burns Philp (BP) in Fiji, and its logging companies in the Solomon Islands. This historical context makes it difficult for Australia to understand the feelings of those that have been colonized. Things do look different depending on whether you are on top or underneath.

In terms of improving relations with the Pacific Island States, addressing such historical injustices would be an honourable way for Australia to start, whether it is for the labour trade, or for the stripping of natural resources such as forests and minerals. I don’t think it is reparation people are demanding, but recognition and some form of acceptance of responsibility as well as a helping hand, not on the basis of Australian self-interest, but on the undertanding that improvement in regional well-being would reflect positively on Australia’s position, image and status in the region.

It is all too easy to engage in Australia bashing and lately I have seen too many academic articles, written by people within this country as well outside, that outrightly condemn Australian interests in the Pacific as ‘self-interest’. However, unless we offer some options, I don’t think it is fair to just keep criticizing - what are some of the improvements that can be made which can assist in the process of real, rather than superficial, regional integration.

The first is the question of identity - this is something that Australians will have to decide for themselves - there are no practical suggestions one can offer from the outside except to hint that in order to be defined as a Pacific country, Australia will need to act like one.

The second is improvement in communication. Being so Euro-centred, not just in terms of its population composition but also in terms of its political and legal frameworks, it is inevitable that there will be communication problems in any interaction between Australia and its Pacific neighbours. Thus we need to find a common ground for mutual understanding and to do this we need to discuss whether we even speak the same language. If Australia thinks that colonization by European powers should have brought the rest of the Pacific islands up to speed on fundamentals such as democratic governance, open government, transparency and accountability and those other wonderfully esoteric terms of modern statehood, it should think again- the question is whether these trappings of modernity are desirable or required or even accepted as a standard of achievement- because there may be other equally admirable systems in existence which are preferred.

Let me explain this a bit more. In Australia, the western liberal system prevails - it may not be the best example of a liberal system, but the structures of administration, courts and parliament illustrate a particular western model. In the Pacific Island States, while we do similarly have a parliament, courts, and so on, there is in addition a parallel equally cohesive traditional system in existence - in some countries there are even parallel court systems operating for land disputes. In the Fiji Constitution, Chapter 13 provides for application of customary laws, and I have seen similar provisions in other Pacific Island constitutions. The colonization process did attempt to under-emphasise the traditional system of governance by confining it to traditional issues such as land administration, inheritance of chiefly titles and so on, but independence and subsequent amendments to Constitutions stressed the traditional system more and more as time went on. And tensions between the traditional political structures and the Westminister system, as expressed in the ideal constitutional model of theorists such as De Smith, and which prevailed over most of the former British colonies, were increasingly resolved in favour of traditional systems.

If we are to try and get beyond the current difficulties between ourselves and Australia, we need to understand this conundrum faced by people of the Pacific - how does one reconcile the western parliamentary model with traditional and quite discursive systems of governance, representation, consensus-building, and responsibility as well as structures of authority which are not on the wane at all. In fact, they have always been a curiously centralized part of our structures despite colonization, de-colonisation and globalization. These parallel systems are not to be embraced in any culturally relativist way - on the contrary - but there may be some fundamentals that could be highlighted as occupying common ground for both types of societies - not in any determinist or dogmatic way, but in recognition of their contested boundaries over time and space.

I think it would be advisable therefore to understand the nuances and differences between status-based societies which we have in the Pacific and those based on contract, like Australia, to arrive as some sort of agreement about commonality of expression and meaning. Of course neither the Pacific nor Australia are exclusively of one type or another- status and contract societies are nowadays interlaced, but we should be able to tell which is dominant or subordinate at any particular historical moment.

Recently, I read again that classic text, Sir Henry Maine’s Ancient Law, and I was struck by his first paragraph in the Chapter on the Early History of Contract. His very first assertion in that chapter is that ‘the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by Contract’.

Sir Henry Maine was exploring the history of the law of contract, in the formal sense of the word, as we know it in law. But in doing so he reveals elements of an earlier society based on obligation and compact.

How removed is his notion of compact from the concept of the social contract that Hume, Locke and Rousseau later talked about? This idea of social contract has been imported into in all our Constitutions. Chapter 2 of the Fiji Constitution, which is our Compact chapter, states that the ‘people of Fiji recognize that, within the framework of this Constitution and other laws of the State, the conduct of Government is based on the following principles’ and goes on to outline the rights of individuals, communities and groups’, which bind the State.

Indeed the English Revolution of 1688 was cradled in social contract, as was the American Revolution of 1776. But it was current even earlier, in the days of Plato as well. And while lawyers did not like it- it nevertheless survived in many forms over time in the western tradition- central to which were two other fundamental values- the value of Liberty- specific to certain societies- and the value of Justice- more general, as the basis of all political society and of every system of political order.

Could there be a commonality of position on the basis of ‘justice’ as a core value of societies based on contract as well as status?

Justice is a universal term- it is not tied to societies based on contract or status, or indeed any other form of social organization.

Without justice, societies do not survive. Every society has a concept of justice, both informal and formal, through traditional methods of delivering justice or more formal court structures. It is a much more realistic way of entering into dialogue about other things in the post-modern world- security, economic and social rights, collective duties and responsibilities, and human rights. It even includes remedies for historical as well as contemporary breaches.

Justice is also the conceptual basis for erga omnes obligation of states towards citizens other than their own- which we used for our recommendation on Timor Leste- that it is open to any country to lend their jurisdiction to the investigation and prosecution of crimes against humanity in East Timor in 1999.

Thus the concept of justice may serve as a symbolic bridge between societies based on contract and those based on status.

With respect to my second point, regional security, I think we need to be able to understand the tensions inherent in the concept of nationalism on the one hand and integration (call it regionalism) on the other.  Ideally, in an integrated region- for example in a commonwealth of nations, sovereignty is respected and up-held as a first rule, but if tension or difficulties arise, the common good of the partners in the community would prevail. This is how villages in the Pacific Islands states are already organized - responsibilities are emphasized as well as rights; duties as well as privileges.

This rights / responsibilities dialectic is already signposted in the language of the United Nations Charter and the Universal Declaration, except they are called rights and limitations- the limitations being those exercised in the public interest- that is, for public order, public health, public morality and the rights and freedoms of others.

Security can be achieved by countries and people acting in the common interest. There has been an overstatement of security issues since 9/11. Our problems are of another kind- economic development, population decline through out-migration, sea level rise, and the over-fishing of our seas. Is there sufficient emphasis on our food security in the Pacific? What kind of discussions do we have with our powerful neighbours to improve our socio-economic conditions while retaining our sovereignty? When we have high-powered discussions about regional security, are we really addressing the problem or just implementing someone else’s agenda from another region altogether?

I think it’s an important development that the Melanesian Spearhead Group has established a Rapid Response Unit to respond to disasters, whether natural or man-made in the Melanesian group of countries. It shows the need to have home-grown responses to conflict and other emergencies, and to alleviate the possible collusion or impression of collusion between self-interest and the delivery of emergency relief in the region. It is an attempt to formulate more of a consultative and cooperate disaster relief paradigm.

Of course there are other issues of security we have in the region that are not so easily resolved- in fact they have been ignored, despite dire warnings from various UN experts. I am talking about the new face of mercenarism- there is evidence of private soldiering in the region- and we do not have an effective mechanism for dealing with this phenomenon which is actually the privatization of the use of force. I believe security should be discussed in terms of whether states can afford to relax their traditional monopoly on the use of force. This will have to be discussed by the PIF states sometime soon as it has implications for border control and also for regional security.

My last point, is on historical connection and it is this. We have read a number of influential articles on the old and new Australian self-interested interventionism in the Pacific – including its colonial origins, the transitory phase, and now the security phase, playing out right at this moment in a global as well as regional sense through the engagement of RAMSI in the Solomons.

But we need to revisit this traditionalist perspective on Australian intervention- is it really self-absorption and self- interest? My problem with this paradigm is that it is a self-fulfilling prophecy- if one views the world only as a struggle for power and control or ‘interest’ does this lead to the illusion that change can only be obtained through power and force- in return; does the decolonizing process begins to resemble the colonizing one, and does history repeat itself, again very dangerously?

We do need a new type of analysis of Australian role in the Pacific, with respect to rights as well as responsibilities.

Australia’s position in the Pacific will improve if it can, first of all, re-define its identity, and secondly, put some strategies in place to assume responsibility.

It may not be able to do either of these things easily unless there is some attempt to explore the common ground between itself and its small island neighbours. There may also need to be more discussion of definitions of the concept of rights and tensions within- for example people’s rights (call it self-determination) versus rights of the state (call it sovereignty). Self-determination of people within the state of Australia played itself out rather magnificently in the recent court case establishing native title over the city and environs of Perth. But can this kind of self-determination, perhaps resulting in a parallel structure, pose a major threat to the idea of the Australian state itself? If so, then it is even more critical that Australia is able to define its identity in terms of its own past in this geographical location or space.

Now, back to the idea at the beginning- human rights in the Pacific as a study in symbolic interactionism. Symbolism is the key to understanding and expressing human rights issues in the Pacific. Symbols are not to be confused with signs- signs are merely elementary symbols- Symbolism is really about codes. For symbols to be meaningful the codes must be learnt by the subjects to whom they are addressed. Effective human communication does depend on the use of different forms and levels of symbolism and indeed symbols of justice.

In the human rights legal framework, this means finding common ground in the concepts. When we investigated the situation in Timor Leste, we could not ignore the justice component of reconciliation. 

In the Solomon Islands, Australia is being dismissed as a symbol of colonial hegemony in the age of sovereignty of states.

I think it is our responsibility as academics and human rights legal practitioners to ensure that foreign policy or commitment to regional security is based on premises that are authentic.

While human rights as expressed in the Universal Declaration and our Constitutions is a common standard of achievement  based on the social contract idea, we cannot avoid making adjustments in the conceptual framework. This is the reality of the situation on the ground. 

The real test is whether we can be both general and particular in conveying the meaning of human rights in societies where duties rather than rights remain the dominant paradigm. I think we can, as long as we employ innovative methodologies, such as symbolic interactionism, and try to understand the structures of the societies we are dealing with, as well as our own. Otherwise we will continue to fall into the trap of thinking either that the idea of human rights is meaningless in societies that do not have a western liberal tradition and therefore we should abandon the idea in favour of customary rights, or that the emergence of constitutional government has eliminated the traditional, status-based, societies of the past altogether. Both Timor Leste and Solomon Islands are good examples of the type of human rights violations that can result from a misreading of the symbols.

The impact on people of this type of confusion can be devastating.

Madam Chair, colleagues, if there is anything useful to be taken from this lecture, I think it would be two points, one that we need to improve communication between Australia and the Pacific about our shared human values and to understand the symbols we use to express our respective standpoints; and second, that the human rights idea in the Pacific must be appreciated as being able to accommodate social, contextual, symbolic as well as universal legal frameworks. I do think that we need to get beyond the oversimplified explanations of the gap between western and non-western notions of law and order. Human rights, as we see them, which can be expressed as a metaphor for justice, may well serve as a symbolic bridge linking our two world views.

Our 2006 Annual Lecture was sponsored by Mallesons Stephen Jaques