By Crosbie Walsh
It's a pity the Pacific Forum foreign
ministers visited Fiji when they did. Had they waited two weeks
until after the arrival of Professor Yash Ghai they'd have been far
more positive about the steps Fiji is taking towards elections in
2014 and, who knows, sanctions by Australian, New Zealand, the Commonwealth and the E.U. might have been lifted. Sanctions against the troubled sugar industry are especially worrisome because of the large number of people it employs and its importance to the economy.
Prof Yash Ghai |
Kenyan-born Yash Ghai is the chairman
of the five-person Constitution Commission set up by the government
that will do much to shape Fiji's future —and he is no push over.
In 2004 he resigned as head of the Kenya constitution review
commission over delays brought about by that government; in 2008 he
resigned suddenly as Special Representative for the UN Secretary
General in Cambodia after bitter arguments with the Cambodian
government, and last year he called for the impeachment of Kenya's
President for lobbying against the genocide trials of his associates by
the International Criminal Court. His appointment put an end to the speculation that the Fiji Government would dominate the Commission.
Professor Ghai is a world-renowned
constitutional scholar with special expertise in human rights in
non-western societies. He has helped constitution reform in 15
countries, and has researched and taught law at a number of highly
regarded universities including Yale, Harvard and the National
University of Singapore.
He is no stranger to Fiji having been an advisor to the Fiji Labour Party when it was preparing its submissions on the 1997 Constitution, he was in Fiji immediately after the 2000 Speight Coup, and more recently he was the guest of the Citizens' Constitutional Forum for the launch on Constitution-Making and Reform, Options for the Process, a handbook he had co-authored.
He is no stranger to Fiji having been an advisor to the Fiji Labour Party when it was preparing its submissions on the 1997 Constitution, he was in Fiji immediately after the 2000 Speight Coup, and more recently he was the guest of the Citizens' Constitutional Forum for the launch on Constitution-Making and Reform, Options for the Process, a handbook he had co-authored.
In Fiji last week, he said Government's
reform process was thorough, well thought out, responsive to various
concerns and appeared to provide a good balance of input from
ordinary people and experts. But he said Fiji’s laws should be
restored to a state compatible with the guarantees of the Bill of
Rights under Fiji’s 1997 constitution, and the current role of the
military had to be addressed. It is very important, he said, “to
have mechanisms for expression of different views and attempt to
develop some consensus.”
Appointment welcomed
Yash Ghai’s appointment has been generally welcomed
but former prime ministers Lainesia Qarase and Mahendra Chaudhry are
not altogether taken with a Constitution Commission and they think it
unnecessary to write a new constitution. Their parties, the SDL and
FLP, will be making submissions to the Commission but if they ask for
no more than a return to the past (immediate elections, removal of
the military from civil posts and only minor changes to the
constitution) I think they are unlikely to impress the Commission.
A
stronger opposition voice came from the overseas-based Coup4.5 blog
which is violently anti-government. They claimed Professor Ghai is
Bainimarama's “puppet” and is especially suspect because he
supervised the Attorney-General's thesis. Further, they said, he criticised the
electoral provisions the 1997 Constitution, and has been “closely
associated” with the Citizens' Constitutional Forum, an NGO that
has opposed all coups since 1987 but which has been critically
supportive of the Government's roadmap to elections. It is hard to
know how much support this view has on the streets of Suva but it is
unlikely to find support among thinking Fijians. Ghai's credentials,
and those of other Commission members, are just too strong, and the Commissionn
could well be holding the only light at the end of the tunnel.
The Commission's mandate
Government
has given the Commission — which will hear submissions from around
the country over the next three months and then take another three
months to prepare and submit its recommendations to a Constituent
Assembly— a reasonably wide mandate, but Bainimarama has made it
clear that their findings must be in line with the fundamental values
and principles of the People's Charter for Change which was approved
by approximately two-thirds of voting adults in 2008, and not
contravene what he has called “non-negotiable elements”, namely,
a common and equal citizenry, a secular state, an independent
judiciary, the removal of systematic corruption, elimination of
discrimination, good and transparent governance, social justice, one
person-one vote-one value, the elimination of ethnic voting,
proportional representation and a voting age of 18.
The
Commission will submit its draft constitution for consideration, amendment and approval to the Constituent Assembly that will meet in January next
year. It is expected the final constitution will be ready for
Presidential approval eleven months later, in February 2013.
The composition of the Assembly is not yet known but as government will take advice on its membership it is expected to be reasonable representative. In all likelihood it will be modelled on similar lines to the membership of the National Committee for Building a Better Fiji, the committee that drafted the People's Charter. Invitations to join the NCBBF were send to political parties, religious bodies, NGOs, and other representatives of civil society. If all goes as planned, the people of Fiji will have from January 2013 to September 2014 to familiarise themselves with Fiji's fourth constitution since Independence in 1970, and its old and new political parties should have ample time to prepare for the county's first election where parties and electorates are not formed on the basis of race.
The composition of the Assembly is not yet known but as government will take advice on its membership it is expected to be reasonable representative. In all likelihood it will be modelled on similar lines to the membership of the National Committee for Building a Better Fiji, the committee that drafted the People's Charter. Invitations to join the NCBBF were send to political parties, religious bodies, NGOs, and other representatives of civil society. If all goes as planned, the people of Fiji will have from January 2013 to September 2014 to familiarise themselves with Fiji's fourth constitution since Independence in 1970, and its old and new political parties should have ample time to prepare for the county's first election where parties and electorates are not formed on the basis of race.
The
Commissioners
Prof Christine Murray |
The
five-person Constitution Commission appears well balanced. Two
distinguished overseas overseas professors provide the legal
expertise and the three local members represent widely different
facets of Fiji society. It is probably the first distinguished
grouping where women outnumber men.
In
addition to Professor Ghai, the other non-Fijian is South African
Professor Christine Murray, professor of
constitutional and human rights law at the University of Cape Town.
She helped draft the South African and Kenyan constitutions, and has
taught, researched and published on issues very relevant to the
Commission's work, such as international and constitutional law, human
rights law, gender equality and the constitutional rights of women.
She had these reassuring words to say on her appointment:
“Clearly to have proper public consultations, the public has to be able to speak freely. And from what I understand of Fijian politics at the moment, something is going to have to be done about that. Of the members of the commission, the only person I know is Professor Ghai, and I know that he will be insistent as chairperson that the process is open and that it gives people a real opportunity to contribute.”
Dr Taufa Vakatale |
The Commission includes three Fiji
appointees. The most well known is probably Dr Taufa Vakatale. She
holds a Doctors
in Letters honoris
causa
from the University of St Andrews (awarded for her "major
contribution to the cause of Pacific women")
and was Minister of Education, Science, and Technology from 1993-97
in Sitiveni Rabuka's SVT government. In 1997 she became Fiji's first
female Deputy Prime Minister, a position she held until the SVT
government was defeated in the 1999 elections. Earlier, she was the
first female Taukei principal of Adi Cakobau School and Chief
Education Officer. In this role she helped establish Fiji's vocational
centres and pioneer curriculum
innovations in secondary education.
Peni Moore |
Penelope (Peni) Moore adds an NGO dimension to the Commission, She is a human rights expert, and a veteran of the civil society and NGO movement. From 1987-93 she was the first coordinator for the Fiji Women's Rights Movement. She has been the Creative Director at Women's Action for Change (WAC) for 18 years, a role in which she worked to empower women and marginalized groups such as at-risk juveniles and former prisoners. She is also a commissioner in the Fiji Legal Aid Commission.
Prof Satendra Nandan (l) |
The issues to consider
So, this is the group that will welcome
opinions on how best to reform Fiji's Constitution. One would assume
they will start with an appraisal of the 1997 Constitution and the
decrees passed by the Bainimarama government.
Among the issues they will have to
consider are how the president is to be appointed and what reserve
powers he should exercise. He certainly will not be appointed by the
Great Council of Chiefs as he was previously. And his reserve powers
will need to be unambiguously stated to avoid the situation in 2007 when the Court found his action in deeming the Bainimarama coup legal
and in 2009 when the Appeals Court deemed it illegal.
Government has abolished the GCC but
the Commission is likely to receive recommendations for it
continuance in some form. Most likely it will be stripped of its
powers to appoint the President, Vice-President and members of Senate, powers that led to
its politicisation. If reinstated, its authority will probably be returned to its tradition roles of
advising government on Taukei affairs and resolving chiefly
succession disputes.
Senate
is another body abolished by Government. Its members were nominated
by the GCC, the PM and the Opposition, and one seat was reserved for
Rotumans. Government has indicated that it does not seek its
continuance but a modified Senate could provide expertise for
Parliament if its members included a diversity of experts and/or
representatives of different sectors of civil society.
A case can be made that Senate or another body such as a "College of Cultures" is needed that will concern itself with the cultures, languages and rights of Rotumans, KaiSolomoni, Banabans and other ethnic minorities.
A case can be made that Senate or another body such as a "College of Cultures" is needed that will concern itself with the cultures, languages and rights of Rotumans, KaiSolomoni, Banabans and other ethnic minorities.
A decision will also be needed on what
to do with Government's many decrees. They will
probably need to be considered separately with recommendations that
they be endorsed or not endorsed by the incoming government. It would
be a tragedy if those dealing, for example, with women's rights,
prostitution, and codes of ethnics were not included in the new laws.
And even the controversial Media Development Decree needs
consideration so that its positive elements are not lost. Fiji should
not return to the old days when an ineffective Media Council was
supposed to deal with complaints against the press.
The
old constitution made provisions for the appointment of judges. The
Fiji Law Society is unlikely to have its authority reinstated but
some other, but truly independent, provision must be made.
The
most critical and most arguable issues
The
two most arguable issues are also the two most important because if
the Commission and Assembly do not come up with something that is
acceptable to the Bainimarama government, the military and civil
society, it is unlikely there will be a satisfactory conclusion to
the Commission's work.
First,
the Commission has already targeted the need to find a resolution to
the role of the military. Is it to have the “protective” role is
has always claimed, long before the 2006 Coup, and if so, under what
conditions and on whose authority will it operate? Or should it
simply "return to the barracks" as several people have stated? Unfortunately, expecting a “return to the barracks”
— and probable down-sizing— as demanded by Government opponents
is unrealistic unless its constitutional role is spelt out and
accepted by all parties.
Secondly,
there is the question of immunity. Many say Bainimarama and his team
have committed treason and granting them immunity will excuse them
from their “crimes” and remove a deterrent to further coup-makers. Government wants to go down in history as the government that ended the “coup culture.” This will not happen if the Commission and Assembly are unable to achieve a consensus on the military and immunity.
There is, however, a precedent of sorts. An earlier coup leader, Sitiveni Rabuka, was not only given immunity, he was made a life member of the GCC. But his coup aims matched those of the Taukei government that followed. It is by no means sure this will be the case following the elections in 2014 even if a Bainimarama party forms government. It is not merely a matter of granting and obtaining immunity. Government members were given a Presidential pardon in 2007. A pardon or immunity has to be guaranteed to last —and that is by no means simple or certain.
The problem will tax the legal skills of Professors Ghai and Murray who must at least to explore the legal possibilities of a way out for the Bainimarama government that appointed them. Preferably, they need to make a firm recommendation to the Constituent Assembly. If they leave it to the Assembly alone, it is difficult to predict what will happen. To ensure a peaceful future some accommodations may need to be made with the past.
There is, however, a precedent of sorts. An earlier coup leader, Sitiveni Rabuka, was not only given immunity, he was made a life member of the GCC. But his coup aims matched those of the Taukei government that followed. It is by no means sure this will be the case following the elections in 2014 even if a Bainimarama party forms government. It is not merely a matter of granting and obtaining immunity. Government members were given a Presidential pardon in 2007. A pardon or immunity has to be guaranteed to last —and that is by no means simple or certain.
The problem will tax the legal skills of Professors Ghai and Murray who must at least to explore the legal possibilities of a way out for the Bainimarama government that appointed them. Preferably, they need to make a firm recommendation to the Constituent Assembly. If they leave it to the Assembly alone, it is difficult to predict what will happen. To ensure a peaceful future some accommodations may need to be made with the past.
7 comments:
Croz
This is a good opinion piece with a healthy dose of facts about the commissioners and the issues that need to be addressed. While I sincerely hope that the process will lead to a positive outcome for Fiji, I still have my doubts that your views on the role of the regime in the process is correct. You very firmly state 'His (Ghai's) appointment put an end to the speculation that the Fiji Government would dominate the Commission.' With all due respect, I believe that a healthy dose of skepticism seems to be in order here. The doubts start with the commissions chair. Why not appoint someone without a clear link to the AG who is one of the regimes most controversial figures? 'He is no pushover' you state, but again this opinion may not be shared by everybody. Why not appoint at least on commissioner with a critical view on the actions of the military in the 2006/9 coup and thereafter. A very long list of qualified lawyers come to mind as potential candidates and the credibility that the regime and the process would have earned by this would have been considerable.
"A long list of qualified lawyers"?
Is that a commendable addition to this process? We have been having to sort out the lawyers for the past six years. There are still dozens who do not pass muster: yes, even now.
But on very close inspection, Professor Yash Ghai does pass muster. He is our only hop in that his track record, his integrity will require that he steps down if all does not meet the most stringent of international standards required of the exercise.
This in itself will be a fundamentally important contribution. In his own country, Kenya, he has made a difference. That difference was a costly and potentially dangerous one to make and involved the International Criminal Court at The Hague. An exercise of exquisite judgement with profoundly beneficial consequences.
Yash Ghai has all the right experience and we are told he has resigned before over points of principle. That is all very good but at the end of the day you have to faith that a dictator will give up power willingly and without any underhand activities.
Bainimarama record speaks for itself and on his record he cannot be trusted.
1- He has lied about elections previously
2- He talks endlessly about the Peoples Charter but has ignored most of the pillars in his own government.
3- He contradicts himself when talking about the future. He says anyone can stand for elections and then he threatens Qarase, Chaudhry and Beddoes: “He said he was concerned with the way they were conducting their political businesses and this might affect their return to politics.”
4- When asked about the return of the soldiers to the military barracks by the MCG last week Aziz responded. “My reply to them was, we’ll come to a decision after all the constitutional processes had been implemented”. So the question of the military one of Croz’s big 2 is going to be decided by the military after the Constitution Consultations.
5- Pardons for coupsters no longer work. We have seen past coupsters in countries as far apart as Libya, Chile and Turkey all being tried this year. They were all granted immunity as part of the process of giving up power. Frank and his boys in green know that so they will be forced to remain part of any government moving forward. The best we can hope for is a democratic government with a gun held to its head.
Croz you obviously have faith that Bainimarama will do the honorable thing and we will have free and fair elections in 2014. Please share with me the basis of your faith.
Great article Cros and thanks. I see that the usual Doubting Thomases have said their pieces above, but it seems that whether people will believe in the process depends on whether they believe in the motives of the government. For some, if Mother Theresa joined the Commission, it would not redeem the process because of distrust for the govenment and specifically, the AG. Theses reactions have little to do with rational thought. They are driven by hostility and distrust. They will never change.
Is the dictator telling the truth....I think he is. He once said that people who have been ministers in the past govts or parlimentrians will not be allowed to compete...which is fair for their (un)usefullness has expired. Oh yea, and what has the past govts done for the advancement of the especially i-taukei peoples. I mean since 1970 there has been i-taukei dominated and I would say chiefly stacked government ministers all for them selves and their families. I mean come on guys its the beneficciaries of those previous administrations who have a lot to squeal about. TAlking of dictators...I mean some chiefs have really been dethroned. Are you guys also talking about these dictator regimes within the so called democracies??? democracy for the sake of democracy is not always good for a lot of countries and Fiji is one of them.
I would rather see this regime continue and uplift the i-taukei with housing projects etc and better education. These were the priviledges of the Chiefs and their hangers on while the common man suffered. I'm sure once the handouts have been removed, some of these people are crying foul.
I salute the other great chiefs who have always been a pillar of hope for all the peoples of Fiji and there have been a lot. To you Sir/Madam God Bless.
@ Terrior
Sorry you are wrong. What the PM actually said was anyone who joined the interim government (post 2006 coup) would not be able to participate in the future election. This is but another broken promise because he is not going to stop Mahen running because it would also mean he has to stop himself. Sorry, too early to trust the military government on their stated intentions.
@ Does the Dictator tell the truth?
Never allow anyone to lie to you twice!
The basic Rule of Thumb. The Test of Tests. No matter where it is applied, it works and it works well. Those who lie deserve no trust. Those who deceive deserve no confidence. Hold them up to ruthless scrutiny every single hour of the day! Apply this test with rigour North, South, East and West. The ultimate goal is Freedom.
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