Three Temporarily Unwise Men

Fiji Report #4

Part I, Professor Yash Ghai
By Crosbie Walsh

I didn't know which title was better. Three Wise Men, when, as things turned out, they clearly weren't, or Bermuda Triangle where ships disappear without trace. So I settled on Three Temporarily Unwise Men. Normally wise, but in this one instance —the kerfuffle about Ratu Joni's short term Constitution Commission consultancy— decidedly unwise. My assessment, of course, comes with the benefit of hindsight. and being a bystander allows me benefits the three wise men did not have. 

I was there, at that moment in history, when the Yash Ghai-Ratu Joni Madraiwiwi-Voqere Bainimama saga finally came to a head. In fact, I was waiting outside the PM's office as Prof Ghai and other commissioners left, all looking positively downcast. I suspect strong words had been spoken by both parties. And then I was there, in the PM's office, part way through my own interview, when the PM pointed at the tape recorder and asked me to switch it off. He looked less shaken that Yash Ghai but he was clearly very upset. For the next 30 minutes I was the sounding board he used to "get it off his chest."

You all know the outcome. Ratu Joni resigned his advisory role with the Constitution Commission or his contract was not renewed, or both. Take your pick. Yash Ghai told Radio Australia the Commission had broken no part of its terms of appointment and he refused to be intimidated by the PM. The PM denied intimidation, saying that Ghai's job was to draft the constitution, not solicit the opinions of those opposed to government at social and other functions, or hire consultants with a conflict of interests. It was up to Ghai, he said, whether or not he wished to continue as a commissioner.

Soon afterwards, the decree appointing the Commission was amended, limiting or clarifying its scope, again depending on your interpretation. For a day or so Fiji waited, not knowing how Ghai and the other commissioners would react. It would have been a monumental disaster had they pulled out. So much work has been done, and the appointment of the Constituent Assembly and the 2014 Elections, are almost in sight.

I had met Prof Ghai on Friday, the day after my arrival, in his office in the Parliamentary Complex, close to where George Speight had kept his hostages during the 2000 coup. The only hint I was given that things were about to turn pear-shaped was that there could have been some, unstated, interference with the Commission's secretariat and his comment, "It's very unfortunate they have taken this position" referring to Bainimarama's complaint about the appointment of Ratu Joni Madraiwiwi as a consultant.

We covered a wide range of topics: the young woman who said the Commission refused to hear her submission. Untrue, said Ghai. She left her submission to the last moment, they ran out of time, and she wasted no time telling her side of the story to the press. One wonders whether the incident was staged.

I raised the question of the legality of government and the Commission. "The fact is that there is a government in place. It's been governing the country for several years. Life goes on. We have to accept for better or worse that this is the situation." He knew there had been criticisms on the appointment of the three local commissioners —Dr Taufa Vakatale, a former MP, Peni Moore, an NGO activist, and academic Prof Satendra Nandan— but thought they made for a well balanced commission and they  all worked well together.

I asked whether the 1997 Constitution would be used as the template for the draft constitution. No, he said. They had read it of course and many elements and general principles would be similar, but the Reeves team did not include a lawyer. They had two, and their own style of drafting. He wanted things kept simple with every literate person able to read it. 

He saw his job to be also about consensus-building. "It's about people living together" he said but thought government did not see it this way. He  wanted the final draft to reflect a broad consensus. I observed that true consensus-building was especially difficult in Fiji because people often deferred to the opinions of senior people, so what they said may not be truly representative of how they thought. "That's right," he said, "but we have people deciphering, interpreting and analysing submissions with this in mind." I had the impression that all the concerns expressed by ordinary Taukei about a Christian state, land, and human and traditional rights, would be receiving their full attention.

At the time of the interview Ghai said, "We don't feel under any pressure" from government. He thought the "non-negotiable principles" were open-ended and acceptable to all democrats. This belief would come back to haunt him. Bainimarama clearly saw the Christian State issue and Ratu Joni's appointment to be totally closed issues (even though he was appointed on a one month contract  before Bau made its submission.)  But the Commission   recruited its  own support staff and considered itself  independent of Government. He spoke highly of Ratu Joni Madraiwiwi who he'd known for many years and valued his help as a lawyer (there are no lawyers among the three local commissioners) and his knowledge on iTaukei matters "He's always been a very balanced person," he said. Bainimarama, as we shall see, did not agree.

He expressed concerns about some of the decrees passed by government and was not happy that the Constituent Assembly would be appointed without prior public consultation. I said the PM did not seem to know that many of the people critical of government were also its supporters. Government appeared to lack confidence in the level of its support. Prof Ghai agreed, and said the PM seemed to think that without the decrees restricting trade union and other freedoms, his drive for a better Fiji would "collapse."  He agreed government had lost some support as a consequence, and thought they "could begin to open up now. As a whole, the people are peaceful and they wanted the Constitution dialogue to succeed."  He saw the weekly Commission-USP seminars as an educational part of the dialogue process. I'm not sure the PM agrees.

Finally, he said he was "very confident" about the professional job the Commission was doing to meet the concerns of the different communities, and expected to meet the deadline for the draft presentation to the President. He would have liked to be around when the Assembly meets, and perhaps offer a one or two day workshop, and he hoped the secretariat would also be available to clarify issues for the Assembly.

My impression?  A fine, highly principled, knowledgeable and very able man who is doing his best, under the most difficult of circumstances,  to help Fiji. His one mistake. Underestimating Bainimarama's distrust for Ratu Joni;  his concerns, real or exaggerated, about threats to his government, and his reluctance to listen to those he considers are again' him.

Bainimarama sees the role of the Commission as strictly limited. Their job is to hear submissions and draft a constitution. Ghai sees the Commission's role more holistically. It is about educating people on the basic  principles of  democracy and easing their doubts and fears  in order to produce a broad consensus.  It is about nation-building and drafting a constitution that will heal wounds and serve Fiji for many years. It is about a constitution that, with the support of the present government,  will make it very difficult to mount a future coup.

The appointment and reaction to the appointment of Ratu Joni is only part of the story but I wonder whether, with hindsight, Yash  Ghai would have  appointed  Ratu Joni had he seen how events would turn out.

In Part II, I will relate my interview with the second "unwise" man, Ratu Joni Madraiwiwi.