News and Comments Tuesday 6 November 2012 (Amended)

Prof Yash Ghai
GHAI AND PM DIFFER. Eleven  days ago the Chairman of the Constitution Commission, Prof Yash Ghai, assured me there had been no interference by government in the work of the Commission. Then government learned that Ratu Joni Madraiwiwi had been appointed as a consultant to the Commission, and everything changed.

Government maintains that Ratu Joni's appointment contravened the Commission's terms of reference because he had been part of a Bauan group presenting a submission to the Commission that called for Fiji to be a Christian state.  That he did not personally want a Christian state was besides the point. The call countered one of the Government's "non-negotiable principles" and there was clearly a conflict of interest between his involvement in the submission and his advisory role for the Commission.

The PM is on record as expressing concern about the number of mainly anti-Government people Commission members have met outside the formal submission process, and some people now believe that Yash Ghai and Ratu Joni have compromised the impartiality of the Commission.

Yash Ghai stands by the appointment and the ongoing impartiality of Constitutional process. Bainimarama says it is untenable for Ratu Joni to continue working for the Commission, and the decree setting up the Commission has been amended to limit its role and functions —though Attorney-General Khaiyum denies the amendments are due to the Ratu Joni situation.

Talking to Campbell Cooney on ABC Pacific Beat Ghai said Ratu Joni "was perfectly qualified to be appointed a consultant. There is some misrepresentation, some misunderstanding on the part of the Prime Minister. He did not actually present a submission advocating a Christian state."

The amendment will mean that the public will not be able to comment on the draft Constitution before it goes to the Constituent Assembly. The A-G say people have already talked to the Commission, and so there's no need for further consultation. Yash Ghai says the "point is that people talked to us about their preferences, their proposals. Now they will have a concrete document to react to, it is a quite different exercise. And so neither explanation is really convincing."

Another major concern is that the amendment has removed the right of the Commission to examine existing laws and decrees for possible incompatibility with the draft constitution. As Ghai said:"There are hundreds of decrees passed since the coup which have stripped the rights of access to courts, media is under pressure subject to heavy penalties, trade union rights have basically been removed, civil servants have no protection. And it seemed to us that a lot of these decrees needed to be amended and in some cases repealed. Now that power has been taken away from us, and I do not see how Fiji is going to have a free and fair election unless these decrees are cleaned up." Read more at FijiLive. 

Comment. There is little doubt in my mind that the Commission acted unwisely, and probably illegally, in appointing Ratu Joni. Government was within its rights in saying the appointment was untenable.  My initial reaction was that they should have noted the fact and done nothing more until the appointment expired at the end of October.  Instead, they have taken the dispute to a whole new level by moving the goal posts in the middle of the Commission's work. This will not win friends in Fiji or overseas, and it will cause more doubts about the independence of the Constituent Assembly and the 2014 Elections.

The only people to benefit from the incident are Government's detractors. They will say it confirms their worst suspicions.   (See also PM's full statement below.)

OLD PARTIES COLLUDE? I have some qualms in publishing this email because it was not intended for me and I only became aware of it after asking Mick Beddoes for a copy of the UPP submission. I've finally decided to publish it because it is a further indication of collusion between the old parties, chiefs and trade unionists  about which the public may not be aware. Earlier signs, some months ago, was when the four parties made a joint submission to the Pacific Leaders Conference in which they challenged the Constitution Dialogue process and Bainimarama's intention to hold elections in 2014, and a meeting between former antagonists Qarase and Chaudhry.  Most of those on the email address list are prominent members of the SDL, NFP and FLP parties.

From: Mick Beddoes
Date: Mon, 8 Oct 2012 16:57:06 +1200
To: Laisenia Qarase; Mahendra Chaudhry; Adi Temumu 
Kepa; Sharky Jackson; Attar Singh; Raman Singh; pio tabaiwalu; Mere Samisoni; Sakiusa Raivoce
Bula All,
I attach for your record the UPP submission. In light of the limited time remaining, I intend to email our
submission to the Commission and will release it shortly thereafter.
Kind Regards, Mick

EVR (ELECTRONIC VOTING REGISTRATION) centres will reopen in urban areas for a further four weeks from next week. Some 488,000 people, or approximately 76% of estimated voters   have so far registered to vote in the 2014 election. So far 1,300 registrations are considered "suspicious" and one person has registered ten times. Registration centres in rural areas will reopen for two weeks starting on 26 November,and a system will be in place next year to ensure that people overseas are registered. In two weeks time the Elections Office website will enable people to check their registration details. The breakdown of registered voters by division so far is: Northern 78,553; Central 198,003; Western 188,787; Eastern 23,298.

HINTS ON 2014 ELECTION REQUIREMENTS. Minister for Elections and Attorney-General, Aiyaz Sayed-Khaiyum, has hinted at some changes that will affect the 2014 Elections process. They include the number of political parties contesting the elections, the grounds of forming a political party, the criteria of selecting politicians to contest the elections, and time span for the elections.

At present there are 16 officially registered political parties.Some were formed by individuals or small groups and some are defunct. A minimum threshold of members will be introduced, and politicians and political parties will need to declare their assets and provide background information. A ceiling may also be placed on the number of political parties contesting. Other changes could include reducing the number of days to hold the elections, the use of metal ballot boxes that cannot be tampered with, and the counting of ballot papers in voting centres in isolated areas instead of bringing all the boxes to main counting centres.


The Prime Minister, Voreqe Bainimarama, has assured the nation that no individual or group interest will get in the way of his Government’s commitment to have a free and fair election in 2014.

He was responding to comments by the Chairman of the Constitutional Commission, Professor Yash Ghai, who questioned the Government’s attitude in an interview with Radio Australia.

The Prime Minister said the Commission had been given the task of formulating a constitution for Fiji that was credible, enduring and represented the will of the people.

“This constitution is not for the government, as Professor Ghai appears to be believe. Nor is it for the self -gratification of the Chairman of the Commission. It is for the Fijian people and the process of formulating it needs to be transparent”.

“Professor Ghai is complaining that there is not enough scope for public discussion after the Commission produces its document. But there will be ample scope for public discussion once the Constituent Assembly starts its deliberations- once a document is ready.”

“Professor Ghai needs to comprehend that his function is to produce a Constitution and submit it to the President. That is where his job ends. Any public discussion on the draft Constitution will be undertaken by the Constituent Assembly. It is not for the Commission chairman to hijack the Constituent Assembly process. Professor Ghai seems to fundamentally misunderstand the process.”

The Prime Minister said he was deeply disappointed that Professor Ghai seemed to have no grasp of the Government’s concerns about the Commission’s decision to appoint Ratu Joni Madraiwiwi as one of its consultants.

“The law specifically requires every staff member and consultant to be impartial and uphold the non-negotiable principles and the Government  rightly insists that the Commission comply with the law”

“Professor Ghai keeps saying that Ratu Joni did not contravene one of the non-negotiable principles when he was part of a delegation that called for a Christian state. But the decree expressly says that a secular state is one of the non-negotiable principles.  The law couldn’t be more clear.”

The Prime Minister said he was also disappointed that Professor Ghai showed no understanding of why the Government had promulgated the series of laws that have come into force since 2006.

“ We needed some fundamental reforms in Fiji covering everything from domestic violence and child protection to modernising corporate and criminal laws, including the establishment of an independent commission against corruption. We also needed to stop the economic sabotage of our country by certain irresponsible unionists. We needed to remedy the corrupt practices of previous governments and I make no apology for this”.

“Professor Ghai seems to believe that it is his job to amend or repeal existing laws. It is not. It will be the job of an incoming democratically elected government and that is how it should be and  is in any democracy”.

The Prime Minister noted Professor Ghai’s statement that his position had become “very difficult”.

“It is a pity that he thinks that formulating a constitution after country-wide consultations that upholds unassailable democratic principles is difficult. And his claim that I have been harassing him is totally without foundation.”

“No one person is more important than the task of producing a constitution for the Fijian people and our future generations.”

“Yash Ghai can decide for himself whether he wants to be part of this process.”


Anonymous said…
Thought we had paid for an electronic system?

Whats the deal with metal boxes?
Anonymous said…
The harder Yash Ghai defebds the indefensible the more biased he looks. He seems to be a personal friend of the good Ratu? If so then another source of bias.
Crosbie Walsh said…
Anonymous 1 ... As I understand it, the registration is electronic; the actual voting will be manual.

Anonymous 2 .. I don't agree. I think Prof Ghai is an honest man who is doing the best he can, under difficult circumstances, to produce a draft constitution that will stand the test of time. He may not have acted wisely, or even legally, in appointing Ratu Joni but he certainly was not siding with Government opponents. He saw his obligations under the decree differently from the PM, hence the need to clarify the situation by amending the decree.

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