Cogito, ergo sum. I think, therefore I am. (René Descartes, mathematician and philosopher,1599-1650)

Saturday 28 July 2012

Lockington's Everyday Fiji ... Life Goes On


Look to Ovalau

Business, it has been said, is starting to go up again. Having said that, could a reporter go to Levuka and see how the Pacific Fishing Company is doing and print it in the papers, please? Perhaps Fiji TV would like to do a Close Up programme.

I lived  in Levuka on Ovalau from 1985 to 1989 and Levuka was a  busy little town. PAFCO was thriving and foreign fishing vessels were coming to Levuka in the hundreds. Business was thriving. I have been reliably told by a good friend that he notices a difference, perhaps we need to take a look and see what changes have taken place. We have the look North policy. Can we have a  Look to Ovalau policy?

Can someone tell us  how PAFCO is faring? It will tell us how Levuka and Ovalau and the Lomaiviti Group are faring.
Foreign Actors

I’ve been reliably told that foreign actors in Fiji bring more than the eye can see (No pun intended). For one, their presence in Fiji shows that it is safe to travel here, unlike what our neighbours' governments have been saying.  And they also bring employment to the movie industry and this could be a stepping stone to the future, setting up of a movie studio right here in Fiji which will employer local actors, technicians, directors and producers. So, thank you to my friend who spoke to me about movie actors being present in Fiji. I’ve changed my mind.


The Power of Facebook

I walked into  an Internet shop in Lautoka and saw many students from around Lautoka at computers. I identified all the schools by the uniforms. There were about twenty computers and all were being used by students. I had to laugh when I saw the majority of them had text books opened by their side,  and some had note pads with writing on them, but it was  FaceBook they had open on their computer screen. 
A few of the students heard my laugh and knew me and said, “Have to relax mada during research Mr. Lockington.”
I suppose so. 
I wonder if FaceBook should be included in the school curriculum with  text books uploaded and school work  done via Face Book. I know Face Book is part of the "social media" but could it also be made into a  powerful educational?



Allen Lockington is a self-employed customs agent and business consultant who has regular articles published in Fiji. I thank Allen for permission to reprint some of them in this political blog. They remind us that life goes on, whatever the political situation. And it's good to know that.

Ratu Joni's Constitution-Making Address


"While I mourn the manner of the passing of the 1997 Constitution, by force of arms on 5 December 2006 and then by purported abrogation on 10 April 2009, I recognise a new opportunity to build afresh.  And this time, there is a very real prospect of laying a foundation that lasts." 


Constitution-Making in Practice* by Ratu Joni Madraiwiwi

Ratu Joni (L) and Prof Yash Ghai at the book launch
The making of a Constitution consists of process and content. The matter of content has been exhaustively dealt with by lawyers and constitutional experts alike. However, the issue of process and the focus and detail in which it ought to be pursued has been left unattended until now. Michele Brandt, Jill Cotrell, Yash Ghai and Anthony Regan have remedied that lack in Constitution-making Reform Options for the Process. This handbook published under the auspices of Interpeace is destined to become a seminal work, so practical, relevant and apposite are the issues considered and the options discussed. Now that it is in print, it seems unimaginable that it is the first of its genre, a handy one at that and certainly not the last.

The authors emphasise that there is no ‘right’ way of Constitution-making. Each country must determine its own path having regard to its own political, cultural and socio-economic context. What has worked well in one place may not necessarily work in another place. But the point is also made that there are common characteristics to Constitution-making which may assist in determining what course of action is to be adopted. The handbook identifies the plethora of tasks that need to be done, the institutions and procedures to implement them and the personnel to do what is required. This aspect is perhaps the handbook’s greatest strength: in carefully identifying the Constitution-making processes, the tasks comprised therein and the institutions, groups and procedures that are involved in those tasks.

Given the frequency of Constitution-making, it is interesting that no attempt was made earlier to compile a handbook. It appears that those who were involved in the Constitution-making process were too preoccupied in the minutiae of their own experiences, to attempt to draw any common threads. Professor Ghai, on the other hand, has been involved in a number of such processes both in the Pacific and beyond. He and his colleagues are eminently qualified to pronounce on this subject. The other consideration is that the content of Constitution-making rather than the process appeared to capture the imagination of writers and academics. The process tended to be the preserve of elites and political parties with little space for anyone else. The Constitutions of Pacific Island States in the 1970s were negotiated with politicians behind closed doors, with some notable exceptions like Papua New Guinea. This pattern has changed in the last three decades where States, riven by conflicts and divisions over the allocation of resources, have sought to develop new modes of Constitution-making with the emphasis on peace building.

What is fascinating to appreciate is how the process of Constitution-making has moved beyond the historical confines of elites and political parties to wider forms of public participation and consultation. This process is only a few decades old and mirrors the re-emergence of democracy and the accent on human rights in the period after the fall of Communism and the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). But as the authors of the handbook caution public participation and consultation require careful, detailed planning and preparation if the process is to be meaningful and worthwhile. Provision must be made for channeling public responses to the appropriate avenues for proper tabulation and analysis.

At the same time, public participation is not an end in itself. Its purpose is to legitimise the process of Constitution-making. To give the people a sense of ownership of the process and an assurance that they are participants and not mere bystanders in the developments taking place. Furthermore, the authors note that “the people” are not an amorphous body, but comprise workers, farmers, unionists, professionals, labourers, women, students, public servants and the like. Therefore, account must be taken of their particular needs and status. This applies with particular resonance to marginalized groups and people who face a real risk of being overlooked or ignored in this process.

The handbook is timely as we are about to begin the process of drawing up a new Constitution. The first question to be posed is whether we need a new Constitution? The 1997 Constitution was purportedly abrogated on 10 April 2009. Whether we need a new Constitution is an open question, although there are arguably parts that may need to be rewritten or amended. If one accepts the need for a new Constitution, the handbook sets out a number of options to be considered. The reality is that the present government will seek a fresh start to draw a line under the 1997 Constitution and the consequences of 5 December, 2006. That course of action is unobjectionable if consensus can be reached on the way forward. If there is a real opportunity to devise a new Constitution for which the process of public participation and consultation is thoughtfully and creatively devised and implemented, it may well be the best chance we have at laying the foundations for long term peace and stability.

The authors of the handbook note that Constitution-making is not a linear exercise. This can make the handbook a ponderous read at times. But the point is well-made that Constitution-making involves a wide range of tasks as does designing and developing a process. On that basis, a useful starting point for Constitution-making is the similar tasks involved regardless of country or state. These are listed in the Overview of the handbook as follows (not necessarily in this order):
  1. To think through and research the issues facing the country;
  2. To consider the choices of constitutional arrangements that will best respond to the issues;
  3. To educate and consult the people about the issues and the choices;
  4. To negotiate among major political groups and those with powers of decision-making about the constitutional choices;
  5. To administer and manage the Constitution-making process;
  6. To draft, debate and adopt a new constitutional document;
  7. To make arrangements for implementation of the new Constitution.

These tasks need not be arranged in this particular order and they can be organised to suit the particular content of the country or state concerned. But it is a useful list for focussing on the key elements of Constitution-making.


The handbook is divided in four parts. Part 1 introduces the Constitution-making processes. It outlines the key issues and the roles of constitutions and the challenges involved in Constitution-making. What is important to appreciate is that a Constitution is meant to symbolize unity and a common vision for the nation and, as far as possible, ought to be an instrument for reconciliation on compromise. Part 2 deals with tasks and functions associated with Constituion-making. These are not necessarily dealt with in sequence or chronologocial order because realities on the ground may differ. For example, educating and consulting with the people may be carried out at different stages in different constitutional processes. Part 3 concerns institutions and procedures established to carry out tasks. For example, a draft might be prepared by a single expert, a committee of experts or contingent assembly or other body involved in the process. They are usually state-backed institutions because the Constitution-making process is a national one. Part 4 is concerned with external actors in the process who are outside the process but linked in some way and include overseas actors, civil society and the media. There are also a series of twelve case studies of countries as diverse as Afghanistan, Benin, India, Kenya, Poland, Timor-Leste and Uganda. They illustrate the variety of processes adopted in Constitution-making for the countries mentioned. Some established commissions, others Constituent Assemblies while others used parliament. In all, one hundred and nineteen countries are referred to in the handbook.

The focus of the handbook on Constitution-making as peace building is a relatively new and welcome concept. The emphasis enables the citizens of a state to come together with a genuine commitment and passion to create structures, institutions and systems that will be engaged in the betterment and welfare of society as a whole. The Constitution is not only a symbol but to be a tool for building peace continuously. Implementation of the Constitution will need more than following the letter and spirit of its provisions, but more particularly ensuring the marginalised have a voice in decision-making, minorities are protected and the plight of the poor mitigated significantly. Peace building attempts to pre-empt the sources of conflict before they arise and in that regard, requires forsightedness and vision in Constitution-making.

What has particularly caught my attention are some emerging guiding principles for “participatory Constitution-making”. This can be listed as public participation, inclusiveness in representation, transparency and national ownership. We all share the hope that broad participatory Constitution-making mechanisms will be built into the forthcoming constitutional process to ensure a greater degree of legitimacy. This would go beyond referenda and include civic education and media campaigns, national dialogue and use of information technology to reach the young. The handbook discusses how the constitutional process can be made inclusive at all stages. This is particularly critical if it is to be truly representative and include all segments of society. In our process, women, youth and people with disabilities deserve special mention. Transparency enables the public, media and civil society to participate by keeping them informed about the process, their role in the process and how the process will be conducted, how they are represented or elected, the adoption process and their role in it, and providing feedback about public consultations. National ownership requires the process to be one that emanates from within the country itself by local people involved in the process.

On the basis of the handbook, how would one begin the Constitution-making process here? I think it the responsibility of the government as the institution in control of the state and all its institutions to begin the process. That is probably taken as read. It can begin a process of consultation with representative groups or draw up a draft on the basis of the extensive work on the charter. This can then be tabled for discussion as a draft with the public having the liberty to make comments or counter proposals. This could be preceded by an extensive campaign in civic values and/or public consultation on the proposed draft constitution. The mechanism for public consultation and participation has not been specified, that being left to the government and representative parties to agree. This would include unions, churches, religious bodies, political parties and civil society. They might agree on a Commission of Experts to draft a document bearing in mind representations from the public. I envisage a civic and public education process of at least three to six months.

It is probably important that a draft or at least a set of principles to be enshrined in a draft document is placed before the public. Otherwise, there will be little by way of concrete proposals from the public, as they cannot be expected to have fully developed cohesive ideas about what is to be incorporated in a Constitution. Once this has been circulated and adequate time for responses stipulated, the results can be collated and included in what is to be the draft document for discussion. The authors have gone to great lengths and detail as to how the responses from the public might be analysed and incorporated. This is an important consideration because it reflects respect for the popular view.

The handbook caters for a variety of interests, all involved in the Constitution-making process. For the lawyer, public servant, politican, professional, civil society, media, citizen, external party, the handbook is of interest to all concerned. It has been three years in the making with numerous workshops and constitutional experts providing their time, experience and expertise. Out of those series of workshops, reflections and further research, has emerged this practical handbook and toolkit for Constitution-making gleaned from the last forty years of Constitution-making processes.

As we embark on our own journey for what is the fourth time, generous tribute must be paid the authors for providing their distilled wisdom to help light our path. The solemnity and gravity of the Constitution-making process is lightened by the fact that some of the case studies covered in the handbook, such as South Africa and Timor-Leste, were far more divisive than our society. Yet somehow, they found the means and the wherewithal to establish relatively stable societies notwithstanding simmering tensions. That should be a lesson for us to search for and create the compromises necessary to presage healing and reconciliation.  The past still weighs heavily on us and many may find it difficult or impossible to forgive and forbear.  And it is true that it cannot be forced, imposed or usurped.  It is the prerogative of the victim and those who have been wronged.  But the state of unforgiveness and vengeance is a cold, desolate place in which no one should linger too long.  I have no mandate to speak for anyone but myself and I do so from compassion for both sides in our schism.

I have interposed my evaluation of the handbook with my own views about our forthcoming constitutional process.  While I mourn the manner of the passing of the 1997 Constitution, by force of arms on 5 December 2006 and then by purported abrogation on 10 April 2009, I recognise a new opportunity to build afresh.  And this time, there is a very real prospect of laying a foundation that lasts.  I appreciate that certain realities may require that change and reform takes decades rather than months and years.  But as Argentina, Chile, Indonesia, Peru and Turkey have made the transition, so there always remains hope and great expectation for us.  And with those few words I have much pleasure in saluting the authors and launching the handbook Constitution-making and Reform Options for the Process.  Thank you and good evening.


* Address at the book launch of Constitution-Making and Reform Options for the Process by Michele Brandt, Jill Cotrell, Yah Ghai and Anthony Regan, Suva, Wednesday 25 January 2012. 



Navosavakadua's Political Reconstructive Surgery

All the same, and anti-Bainimarama cartoon,
 GOOD  STORY, POOR HISTORY. Blogger Navosavakadua writes opinion pieces in FijiToday. They are invariably persuasive and logical —if readers concede his initial premises and prejudices.


 In this week's posting on the immunity question he asks why Bainimarama wants immunity for people associated with the 1987 and 2000 coups. Why not limit immunity to the 2006 events?  The "reason", he tells us, is that Bainimarama knew about Speight's planned 2000 Coup but "did nothing to stop it. Instead, he "deliberately left the country, returning to try to take advantage of the chaos." Without immunity taking in the 2000 events other plotters might "reveal his secret role"  in the Speight coup. Further "evidence" of his involvement at that time is that the "troops involved in the siege of Parliament continued to be paid [and] no action was taken until he had deposed the President, the late Ratu Sir Kamisese Mara, while positioning himself to take power."  


I find it unsurprising, with primary concerns focussing on  the welfare of the kidnapped parliamentarians held by Speight, that someone forgot to tell the paymaster to cancel the rebel soldiers' pay.   But I am surprised, if Bainimarama was always bent on seizing power,  that he did not do so in 2000,  and then hold immediate elections.  He had much public support at that time and had a very good chance of winning elections. Instead, he handed the job to Qarase on the understanding that the position would be temporary.   Why, if power was his motive as Navosavakadua says, did he throw this golden opportunity  in 2000? And why, a little later, did another group of rebel soldiers who favoured Speight, mutiny and try to kill Bainimarama?  Wasn't he supposed to be on the same side?

The "evidence" does not stop there.  Navosavakadua says, "What Bainimarama feared from the Promotion of Reconciliation, Tolerance and Unity Bill [of the Qarase government] was the exposure of his role in the Speight coup, not the prospect that the guilty would escape judgement." 


He offers no evidence, and makes no mention of two other bills, also opposed by Bainimarama, that had nothing to do with immunity or escaping justice but a lot to do with opposing more privileges for  the iTaukei elite, a theme Bainimarama has considently followed to this day.  Witness, the People's Charter, the stress on equal citizenship, on  all citizens being Fijian, and the land rents bypassing chiefs to be paid directly to the mataqali owners.  On must also ask why, had Bainimarams merely wanted power, he bothered with a Charter and common citizenship that put him on a collision course with the powerful  Great Council of Chiefs, ultra-nationalist iTaukei and the Methodist Church. Why did he not turn to them for support in 2000 when he was supposedly part of the Speight coup?

Ratu Inoke




Further "evidence", according to Navosavakadua, is Bainimarama's subequent appointment of people suspected of supporting the Speight coup such as  Jim Ah Koy and Ratu Inoke Kubuabola.  I do not know if there's any truth in these claims but Navosvakudua —and others who have repeatedly spread these accusations—  have offered absolutely no evidence in their support. Surely there's been time to find some. 

.  



Jim Ah Koy



What I do know is that it makes perfect sense to make Jim Ah Koy ambassador to China, and Ratu Inoke was an opponent of Qarase's SDL party. But even if the claims are true, I cannot see how they support Navosavakadua's claim on Bainimarama's longstanding ambition, or how their appointment helps cover up Bainimarama's suposed role in the Speight Coup.  




In a final effort to provide "evidence" Navosavakadua reveals a supposed mystery.  He writes: One of the great mysteries of the Bainimarama dictatorship is how he has managed to keep the military behind him. He has no military credentials [sic!] and his continued rule threatens to ruin the RFMF as an institution."

The puppet and puppeteer hoax
The answer to the mystery? "The only possible explanation," says Navosavakadua, "is his talent for involving others in his crimes. He made sure that none of his senior officers could avoid having their finger-prints on the crimes of the RFMF in 2000 or 2006. Roko Ului’s muted comments about 2000 and 2006 can be traced to the way Bainimarama made sure that as many as possible of his officers were compromised in one way or another."  

Is Navosavakadua suggesting Bainimarama pushed Roko Ului into beating up women at the Barracks, which Roko Ului denies?  Come off it, Navosavakadua.  You are pushing credibility too far. Roko Ului was the officer in charge and one of the women recognized his voice. 

In an earlier article Navosavakadua urged the Military Council to depose Bainimarama but he didn't then explain  how they could do so when, after all,  each one had his finger prints on these supposed crimes.   


An alternative explanation to Navosavakadua's "only possible explanation" is that Bainimarama removed his main opponent within the military, Col. Jone Baledrokadroka,  before the 2006 coup, and has since rewarded senior officers, not only with a new sense of purpose, but with promotions and new, challenging tasks in the civil administration.   

Navosavakadua portrays Bainimarama  as an incredible clever manipulator whose only motive is his hunger for power. This image does not fit well with people who have met Bainimarama.  Most thought him sincere and genuine. But if he is as clever and manipulate as Navosavakadua claims, why did he throw away power when it was all there for the taking in the immediate aftermath of the Speight Coup? Nor does it fit with the image portrayed by  most of the anti-blogs.  They have Bainimarama as an unintelligent half-wit  completely under the thumb of the Attorney-General? 




Even Picasso ...
Between them,  Navosavakadua and the anti-bloggers, have painted the picture of a man of contradictions. Someone who is at the same time  incredibly complex but simple, an intelligent half-wit, a manipulated manipulator, a cowardly brute who sets others on defenceless women and a warm family man, a man who for over a decade has sought power —and is now trying to give it up (while still holding on to it).  Even Picasso, for all his genius, would be struggling to paint such a man.


-- Crosbie Walsh

Squatter Upgrading: The Lagilagi Project



Lagilagi ground-breaking ceremony
 I enclose an article on the Lagilagi Housing Project.  We  recently signed a contract with FORTECH for the first stage of the project (what we can currently afford).  They hope to commence mid July.  The basic civil works have already been completed by Multi-works at government expense.-- Fr Kevin Barr.





The People's Community Network Housing Project 
at Lagilagi (Jittu, Suva)

Fr Kevin J. Barr

The People’s Community Network is a registered Non-Government Organisation representing a group of 162 squatter settlements throughout Fiji. It works on the understanding that squatters are part of the city and should not be evicted and sent to the outskirts of the city. Rather they should be assisted to gain secure land tenure where they are living (or on available land closeby) and erect decent housing for their families. To do this they need to build up their savings and participate in decisions for their development.

Lagilagi Housing Project

The People’s Community Network has initiated a pilot housing project at Lagilagi (Jittu Estate) to build up to 152 houses over a three year period. The Lands Department has granted a community lease of 2.5060 hectares of land at Lagilagi (Jittu Estate) to the People’s Community Network for a period of 99 years (CL27907).

The project involves funding from three sources – Government ($1.4m), an overseas Donor agency (MISEREOR, Germany $1.3m) and the savings from the squatter families. The people will repay about half or one third of the cost of the house in installments over a period of 12 years. The money the people repay will become a revolving fund to enable more houses to be built. As well the people also provide their labour or “sweat equity” during the construction of the houses. As part of this “sweat equity” 20 - 25 people from the community will be trained as blocklayers and as carpenters/builders by the Fiji National University Training Centre. This ensures that people in the community (particularly young people) receive skills training and that these skills are available for future buildings.

The people will pay one third the cost of the house over a period of 12 years and then own their houses through strata titles but the land will belong to the People’s Community Network. If anyone wishes to move out of the settlement then they sell their house back to the community and it is re-sold to a new family which is part of the PCN savings scheme within the community.

It is hoped that, if the pilot project works well, it can be continued in the rest of Jittu Estate and be duplicated in other squatter settlements where secure land tenure can be acquired. Members of the People’s Community Network have been part of savings groups so that they are already putting aside money to pay for their houses. Their enthusiasm for saving has been very encouraging.

The project is unique insofar as it brings together money from government, overseas funding and people’s savings. Because the people are contributing their savings as well as their “sweat equity”, the project is not a “hand out” but rather a “hand up” to assist people in squatter settlements gain secure land tenure and better housing.

We aim not just to build houses but to build communities and to this purpose we have formed a number of committees in the communities we work in. These committees are for education and skills training of youth, health and hygiene, care of the elderly, inter-cultural and inter-religious understanding, savings and small business, women’s groups.

Building: We have been happy and very grateful to discover that some professional technical expertise such as town planners (SCOPE Pacific), architects (AAPi), structural engineers and builders (Shiri Singh), services engineers (Irwin Alsop), quantity surveyors (Williams Associated Limited) and others from the private sector have been willing to offer their assistance (and possibly equipment) at little or no cost in order to plan the project. The concept plan for the whole project has already been approved. All plans for Phase One were sent to Suva City Council for their approval.

The Civil Works for Phase One of the Project have already been completed by civil contractors (MultiWorks) under the supervision of Samu Silatolu as the Construction Supervisor from Wood and Jepsen and were paid for by Government.

Phase One has been divided into three sections 1.1, 1.2 and 1.3. The sections 1.1 and 1.2 plus some further civil works for the construction of building platforms has been put out for tender and FORTEC has won the contract. This will be signed in mid June and construction should begin by the end of June or early July. They will complete this section of the project in 36 weeks.

The 20 – 25 members of the community who will be trained by the Fiji National University Training Team have been registered with the National Employment Centre (NEC) and gone through their initial training. This means that for the first eight weeks of their training government will pay them $30 a week and this will be matched by $30 a week from PCN. The FNU Training Team has assured us that, because they will constantly supervise those in training, the job will be well done.

Funding: When the project was costed almost three years ago it was estimated that the whole project would involve the building of 100 housing units at a cost of F$3.2m. Now the project has grown to 152 houses plus a community hall and kindergarten. Costs have also gone up considerably especially following the devaluation of the Fiji dollar by 20%. The total project is now estimated to cost F$8.7m.

It is evident that we will need more funding. Unfortunately MISEREOR has told us that they cannot increase their funding further. Government will continue to match other overseas funding which we can access. We hope to request funding from the European Union and from some of the Embassies or High Commissions.

When some of the buildings have been erected we may also be able to persuade some of the bigger local companies and banks to contribute towards a building which can be named in their honour.

Criteria for Provision of Housing at Lagilagi

Priority will be given to those who had to vacate the site for the building project and moved to other areas of Jittu or to temporary housing with relatives. Other beneficiaries may come from other parts of Jittu, Wailea or Muanivatu. However all those who benefits must:
  • Not have land and houses elsewhere;
  • Not have incomes above the tax threshold;
  • Be consistent saving members with PCN;
  • Be willing to pay one third of the cost of their unit over a 12-15 year period;
  • Be willing to be part of the community development of Lagilagi.
The elderly and disabled will receive special attention.

Timeline:

Submission of Detailed Building Plans to Council
Approval of Detailed Building Plans
Finalisation of Detailed Costings from the Quantity Surveyor
Preparation of Tender Documentation
Tenders Period
Tender Evaluation Period
Award of Contract
FNU Building and Training Teams – beginning of Training for 20 people from the community.
AusAID Volunteers
Contractor Mobilisation to Site
Fencing of Site and Site Office
Commencement of Building Works


Friday 27 July 2012

News and Comments Friday 27 July 2012

The A-G and the Commissioners
WEEKEND READING. • Allen Lockington column • Ratu Joni's Constitution-Making Address • Squatter Upgrading, the Lagilagi Project • Political Reconstructive Surgery
WHAT HAPPENED IN THE DIALOGUE PROCESS THIS WEEK?  The week opened with a dispute between the Attorney-General, who said an immunity provision must be included in the new constitution, and Commission Chairman Prof Yash Ghai, who said  a forced provision would not last. 

It ended more cheerfully with the launch of the 68-day national consultation tour heralded in with dances, poetry, artwork and ideas presented by primary and secondary school students, and the start of receiving oral and written submissions from the public.

Yesterday the five-member Constitution Commission team of Prof Ghai, Penelope Moore, Christina Murray, Professor Satendra Nandan and Taufa Vakatale, were sworn in by acting President and chief justice Anthony Gates. See also related story.

The Chief Justice reminded the commissioners of their difficult role, saying they would have to listen and to elicit views even of the inarticulate or voiceless and somehow divine "the right constitutional document for Fiji in 2012. 


He said their work, if transparent, would gather confidence both within Fiji and without, and hoped it "would lead to sensible debate, engagement of disparate parties and groups and enliven a sense of unity in the common noble aim of achieving something better for the country."

RATU JONI MADRAIWIWI ON RACE RELATIONS. I am not alone in my respect for this distinguished lawyer, champion of racial  equality and human rights, former Vice-President and  Bau high Chief.  My sentiments are shared by many who also hope he will soon return to play an important role in Fiji's future.  


Speaking recently to participants of the CCF Forum on Bringing Fiji Together - Addressing Inclusivity in Constitution Makinghe said race relations are "better than they ever were " but much more remains to be done. He credited Government policies and the demographic changes for the improvement.


 Ratu Joni said more work needs to be done to educate people on civic beliefs and he said great courage and wisdom is needed to ensure that everyone moves together as one nation.The focus should be on building on a national identity and social cohesion. Asked abut immunity that Government expected to be included in the new constitution, he said Government's position was understandable but it needed to be discussed fully if it were to be accepted. 

Looking back, he said it had been expected the "that the electoral system in the 1997 constitution was a system in transition" but none of former politicians had opted for change.

THE SUN AND ME. I was almost sun-burnt last week. Journalist Leone Cabenatabua published part of  my article on the CCF contempt case (Aiyaz: 100 percent right and wrong) but only that part in which I'd pointed to what I thought were CCF tactical errors. Here is the link to what he wrote.

 I protested in a comment to the post, and emailed editor Peter Lomas insisting my comment be published and a link provided to the original article. The Sun responded in good faith (Peter taking the opportunity to say the Sun has even published the views of Qarase and Chaundhry which even the Fiji Times did not do, so there was no problem with my article.  This is what they published on Wednesday.
DR WALSH RESPONDS
July 25, 2012 | Filed under: Fiji News | Posted by: newsroom. By Leone Cabenatabua
Professor Crosbie Walsh, the respected academic and blogger, was concerned about an excerpt from one of his articles we ran here headlined ‘Netani Rika and the CCF’.
Professor Walsh wrote:
"Leone, This is not a fair extract.  You cite the part that queries the actions of the CCF but say nothing on how strongly I commended them, and the Rev Akuila Yabaki, for seeking the best for Fiji.
Nor do you say anything of what I wrote on the Attorney-General or my recommendation and cautions on Cabinet, team work and the vital need for good PR.You should at least have provided a hyperlink to the original article, and I invite you to do this now so that readers may judge its fairness themselves."
Readers, in the interests of fairness here’s that link for anyone who wants to read in full what Professor Walsh wrote: http://crosbiew.blogspot.co.nz/2012/07/aiyaz-sayed-khaiyum-how-to-be-one.htm
THE MONEY LAUNDERING CHARGES against FLP leader Mahendra Chaudhry  have been dropped.  Chaudhry was charged with three counts of breach of the Exchange Control Act, five counts of money laundering and four counts of making false statements in his income tax returns. However in making his ruling Justice Goundar quashed Chaudhry’s charges on money laundering on the grounds that the court has no jurisdiction. 


Qarase --- Chaudhry
The court heard that charges of making a false statement in an income tax return under the Penal Code (counts 9-12) are permanently stayed for an abuse of process arising from the same conduct being time barred under the Income Tax Act. It also heard that no abuse of process was established in relation to the charges under the Exchange Control Act and the trial will proceed on counts 1 to 3 only. Charges one to three include failure to surrender foreign currency for allegedly retaining AUD$1.5 million for his own use without the consent of the Governor of the Reserve Bank of Fiji. He is also charged with lending money without the Reserve Bank of Fiji’s permission and failure to collect debts. 

QARASE TRIAL. The Defence and Prosecution have summed up their cases, and the three assessors (Fiji's equivalent of a jury) will consider their verdict after the summing up by presiding judge, Justice Priyantha Fernando on Monday.

'He loves me. He loves me not.'
TWO LOVE LETTERS FROM FANS published by FijiToday. "So now the facist fool from horowhenua [that's me] thinks there are two sides to a story of a human rights abusing junta that thinks it is ok to stump on pregnant women, overthrow an elected government and commit human rights abuses against its citizens. It is not ok and wil not be tolerated. Understood walsh you washed up facist coup groupie?"


... AND THE OTHER. "Oh Lord...save us from the Croz Crock. It is bad enough that the Dickie Birds of Fiji Sun are circulating this nonsense as 'news' or 'opinion'."

Some people don't want to think things through in search of causes and consequences. They prefer simple black or white explanations.

Thursday 26 July 2012

Step by Step: From Commission to Assembly and Tribunal, and Elections

Where is started: Levuka

The constitution and political dialogue starts this week with the the work of current Constitution Commission and their recommendations to a Constitution Assembly early next year,  and concludes with the recommendations of  a Tribunal to the President.  


Attorney General  Aiyaz Sayed-Khaiyum spells out the steps:

The composition of the Constituent Assembly, to be appointed in January, will be reflective of the diversity of the people of Fiji. It will  look into the draft  forwarded to it by the President after it is presented to him by the Constitutional Commission. The process will be guided by the Fiji Constituent Process (Constitution Assembly and Adoption of Constitution) Decree 2012 that include the " non-negotiable principles set out by the Prime Minister during his historic announcement in March."



These principles and values are universally recognized and aspired to. Therefore, these principles and values are non-negotiable. They are:

• A common and equal citizenry;
• A secular state;
• The removal of systemic corruption;
• An independent judiciary;
• 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.

See my March posting for the PM's address. 


"Once the President receives the draft constitution, he will then present it to the Constituent Assembly, that is governed by the Fiji Constituent Process (Constituent Assembly and Adoption of Constitution) Decree, that is the other set of laws that will apply to them."


"It (the decree) talks about the staging of the process, it talks about the functions of the assembly and also the composition of the assembly, as the PM has announced that the composition of the assembly is critical in ensuring that everyone participates in this process." 


The Assembly must include, but should not be limited to include, Government, registered political parties, faith-based organisation, representatives of employers, farmers, trade unions, youth groups, women organisation and so on. The decree sets out the qualification of the members of the assembly and the procedures of the assembly,   how the media will participate in the process, and  where the public can hear the proceedings and debate by the assembly.


There are also provisions for the continuation of the secretariat of the Constitutional Commission to continue its work for the Assembly if that is what the Assembly wishes.

Once the Assembly hands over its review of the draft, the President then forwards it to the Chief Justice, who within seven days shall appoint a five-member Tribunal.


This Tribunal will then consider whether the draft complies with the provisions of the decree, the non-
negotiable principle and the immunity provisions. "It is their job to ensure that the draft given to the President in fact complies with the decree." 

 If the Tribunal believes that there are certain amendments to be made, the President will give it back to the Assembly with the note that they look at these provisions or the clauses that might not be compliant with this decree.


"If it is compliant with the decree, then the President will essentially assent to the Constitution and then
that Constitution will become the Constitution of the Republic of Fiji." 

Sunday 22 July 2012

Aiyaz Sayed-Khaiyum: How to be One Hundred Percent Right and Wrong at the Same Time



Opinion by Crosbie Walsh

Attorney-General Aiyaz Sayed-Khaiyum is one hundred percent right in condemning those parts of the Tutaka report that questioned the general independence of the  judiciary and one hundred percent wrong in taking the Citizens' Constitution Forum to court for publishing the article, written by one of their young overseas volunteers, that reviewed the dubious report of UK lawyer Nigel Dodds Fiji: The Rule of Law Lost – An Analysis of the Law Society Charity Report 2012, Dodds briefly visited Fiji last year and consulted only lawyers opposed to Government.


The Attorney-General is right 
The Attorney-General is right because while everyone can criticise specific judgements of a court, no one can question the general independence and integrity of the judiciary without being liable to charges of contempt. This is not a peculiar Fiji practice introduced by the Bainimarama government; it is common practice in all countries where the legal system  is based on British common law. Any article or speech that suggests the judiciary is corrupt, biased or lacks independence offends the form of contempt known as scandalising the court. Without such a law, scurrilous individuals and groups would everywhere undermine public confidence in the judiciary.


It is probable the decision to take action against the CCF was at least partly due to the frequency of attacks made, mainly by outside critics and with little to no evidence, on judicial integrity. Where its independence and integrity is so often questioned, it is even more important to ensure that public confidence in the administration of justice is maintained. I am told this is the reason these actions are being taken against any organisation that attacks the judiciary, especially since the judiciary cannot speak out for themselves.

In the review of the Dodds Report the Tutaka article claimed the report: "provides a stark and extremely worrying summary as to the state of law and justice in Fiji … The report highlights a number of fundamental failings of the current judiciary and legal structure in Fiji, particularly in relation to the independence of the judiciary …. the independence of the judiciary cannot be relied on.”


There is no question the article is “in contempt”
When I first saw it I was surprised CCF had published it. There have been problems with the judiciary, or more precisely with Government or FICAC attempts to influence judicial outcomes, but there is no evidence at all that the judiciary has been compromised. Indeed, on more than one occasion they have  rejected the Government position.

Dodds also called for action from international law groups. Predictably Jonathon Temm, President of the NZ Law Society, said the report confirmed his suspicions, even though he has never visited Fiji, despite invitations from the Solicitor-General.

Had the CCF article merely reported the Dodds Report, or questioned its sources and placed the arguments of Dodds and Government side by side, there would have been no contempt. But it did not, and this left readers to assume the author, and possibly the CCF, agreed with Dodds that the Fiji judiciary is under Government's thumb and hopelessly compromised.


I first commented on Dodds' report in two articles in March. For readers wishing more background, here are links one and two to the articles and to Dodds' Report. I was unable to obtain a copy of the Tutaka article. It has been removed from the CCF website, probably on the advice of their lawyers.


One hundred percent wrong
There are several reasons why the Attorney-General is wrong in taking this case to court.


First, no one is going to believe, even if he wins the case, that the CCF seeks to undermine the judiciary or the Government. To the contrary, everything they have done has been intended to strengthen justice and Government's stated aims. Where they have criticised government actions in some specific law cases it has been as watchdogs for fairness and democracy. They may not always have been right but their motives have never been wrong.


Akuila Yabaki
The personal record of Rev Akuila Yabaki, the CCF CEO, goes back many years. I remember him first as leading a deputation of squatters, I think from Tutaleva near Flagstaff, to protest their likely eviction by the City Council. That was in 1976 when most of today's Fiji leaders were still at school. He protested the Rabuka coups in 1987 and was a foundation member of the CCF. Soon afterwards he was expelled from the Methodist Church for not supporting the coups. No one in Fiji believes more in justice, racial equality and democracy than Akuila Yabaki. Likewise, the CCF. I cannot think of any other organization that has so strongly promoted the ideals the Bainimarama Government claims. Where it has differed with Government is where Government, for some reason or another, has been seen to fall short of those ideals.


Netani Rika
This does not, of course, mean that the CCF always acts wisely. I think it made a big mistake in publishing the Tutaka article, and I think it is making another mistake in allowing Netani Rika, former Editor of the Fiji Times and now, surprisingly, a member of the CCF staff, to speak on the organization's behalf. He is now a regular contributor to Facebook and so far all his comments have been anti-government.  His employment and new prominence as a CCF spokesman can only be seen by Government as a hostile act. The result will be that Government will take less notice of Akuila and the CCF and the important role they still have to play.To  be effective, the CCF should not unnecessarily irritate Government (or anyone else for that matter). 


The reason for the employment of Rika is another issue but it does raise the question of whether a CCF donor such as AUSAid had any part in the decision to employ him. The case against Yabaki and the CCF will be heard this coming Friday, 27 July.


Scandalising the Courts
The Attorney-General has stated he sees the Tutaka article as “scandalising the Courts in Fiji, in that they are a scurrilous attack on the judiciary, thereby posing a real risk of undermining the authority of the judiciary in Fiji.”


For readers unfamiliar with the workings of the law, it has to be said that it is the A-G's duty to defend the judiciary from attack, and it is the Court that gives or withholds its permission to allow actions  to proceed, depending, in this case, on whether  it considers the A-G has an arguable case. It clearly does. 


The CCF case is not dissimilar to contempt charges laid against the Fiji Times in 2008 and 2011. If the A-G decided to make an exception in the CCF case, he would be leaving himself open to allegations he was being selective in who he took to court. 


So now the matter is in the hands of the Court and it is the Court that will decide if there has been a contempt, not the AG.  I hope the case is dealt with swiftly, the CCF admonished with no penalty, and the case dismissed. The quicker it fades from public attention, the better.

Strategically poor decision
That is the legal situation but the law is not the only situation to consider. There is the question of justice and the “public good.” And, as in all cases of justice, justice needs to be seen to be done. In the present Fiji situation, my feeling is that the public good —and Government's good— would have been better served not to take the matter to court.


In my opinion, and in the opinions of many of my readers, the decision to proceed with the charge was a poor one, strategically, for a number of reasons. As one informed Suva reader, KaiSuva, put it:
I did not know about this Report until I read this article in the CCF journal. Why did the AG bother to sue CCF about a Report hardly any one knew about? Why not let sleeping dogs lie?  Now I am  compelled to try and get my hands on this Report to read — and I am sure many others will. 
“Contrary to what many critics say, including the writers of this Report, I am of the view that the Courts of Fiji are independent and are  doing a good job  on the whole in upholding the rule of law in difficult circumstances. The courts certainly do not need this ridiculous defence by the Attorney General.

“I suspect they are probably embarrassed by this quixotic attack against his old friend Rev Yabaki. This could indeed be the case for the Courts to lay to rest at last the ghostly rumour that has been around here and internationally that the Fiji Courts  are in cahoots with and under the thumbs of Aiyaz Khaiyum.”

Other reader responses include:
“The contempt proceedings are a major PR mistake. People will side with Akuila and that means they will be against Aiyaz. I doubt many people read Tutaka.  If the article had been ignored, how many would have heard of it?"
“Dear Croz,  A sad state of affairs. The AG seems to be over-sensitive and controls any criticisms - especially those which involve him.  He needs to get a sense of humour. I read recently some words of Churchill:  'Having courage means that you are not afraid to stand up and speak.  But having courage also means that you are not afraid to sit down and listen'.”
And again:
“It seems to me that what had hit the AG in the solar plexus were the following words in a paragraph:"Removing the Administration of Justice Decree 2009, removing the jurisdiction of the courts to hear and determine any challenge brought as to the validity of any of the decrees, the Report suggests the population has no lawful method of challenging the action of the Government.
“Many people may not know that Aiyaz Khaiyum used to represent the Fiji Young Lawyers Association on the CCF Steering Committee! At that time he was speaking the language of human rights and proud to give free legal advice to the CCF. He was once regarded as one of Fiji's brightest young lawyer who could one day be a blessing on any democratic government. That was in the 1990s and early 2000.”
Another reader said: “I'll reserve my comments for the moment.”


And yet another: 
“If an article critical of the Judiciary has appeared, I have not seen it. Let me just say this. There is a climate now of distinct fear in Fiji. It is fear of the unknown . Who wishes to enunciate their views to a Constitutional Commission in such a climate?” 
It couldn't have been at a worse time
Which brings us back to the question of strategy. Could a worse time have been chosen for this action against the CCF, whether or not it is technically or legally warranted?


As yet another reader commented: 
“What I find difficult to understand is why the regime, especially at this more mature period in office, seems unable to take a more balanced approach to its stewardship. Clearly it will need the goodwill of organisations, governments and people overseas to support its overall direction. The sort of action the AG proposes seems yet another reactive response to an immediate problem/issue. Such actions play into the hands of those in Oz or New Zealand who simply want to say 'I told you so' in relation to their expectations on Bainimarama.”

Two steps forward, one step back
It has been difficult to read Government's mind over the past few weeks. It lifts the Public Emergency Regulations and then reverts to requiring permits for meetings of three or more people. The police arrest a dozen FLP members who had not obtained a permit. And then, less than a week later, it completely lifts the need to have a permit.  But ... only for the period up to when the Constitution Commission presents its findings to the President. 


What happens from then to when the Constitution Assembly meets? Will people and the media feel really free to speak openly? The PM tells us membership of the Assembly will be representative, and even include the old political parties, but it seems only Cabinet members will have a say on its membership. And then a Tribune appointed by the Chief Justice will decide whether the Constitution complies with some essential premises. Where is there provision for open discussion and debate outside the formal structures of the Commission and the Assembly?


Government advises the media of its new freedom but then, rightly or unwisely, takes the CCF (and the Fiji Times) to court. What messages will the media take from these action?


The PM stresses the independence of the Constitution Commission and the importance of all Fijians taking part in the constitution dialogue. And then Government lays down more “guidelines” about how the Commission should act. 


It even publicly disagreed with the Commission it has appointed, as reported by Don Wiseman:
“The Commission says the push for immunity for the coup makers to be written into the constitution is undesirable. And it says controls on the media, lack of court access and the wide reaching powers of the security forces are particularly worrying.
“But the interim government claims the new decrees set out the framework for a free, fair, and open constitutional process. It says immunity is common in nations promoting reconciliation. The government says having the prime minister decide who can sit in the Constituent Assembly will ensure a broadly representative body is formed. It says the Constitution Commission is wrong in its claims about media freedom, access to the courts, and powers of the security forces. It says the media and the courts are independent and that the security forces are subject to the country’s laws. And it says none of the issues raised by the Commission have any bearing on its mandate as laid out by the decree that created it.”
Wow! One might be forgiven thinking Government is driving by the seat of its pants, and shifting its position when it feels uncomfortable. This is not good enough. To restore confidence, Government should spell out ALL the conditions for dialogue and the FULL extent of its intended involvement until (and beyond) 2014


Get them out there in public arena now for all to see —and don't change them again.


Team work needed
I suspect the main reason for these frequent “adjustments” is that they all stem from the Attorney-General and no one man, however hard working and talented, is able to keep his eye on the ball all the time. He is also human and cannot be unaffected by the constant stream of negative comments directed towards him and his work. 


If my assumption is correct —and even if it is not— it is clearly time for Government to bring more members into Cabinet, share out  the portfolios of the PM and the A-G, and have a number of competent advisers “sit in” on Cabinet meetings, including Permanent Secretaries, specialists, and people responsible for media releases and interviews.


In this way Fiji will have a “team” leading the country, and teams are less prone to what seems to be the rolling, knee jerk reactions we have seen in recent weeks.


Fiji is closing in on the end of the Government 's Roadmap and things are still going relatively well. But there's still some way to go and much can still go wrong. The old opposition will probably continue as they have started. They want the Constitution Commission to fail and the Constitution Assembly to be a place of discord, not co-operation. Essentially, they want a return to how Fiji was prior to December 2006. Their record shows they will do everything they can to discredit Government achievements, spread doubt, and impede present initiatives. 


Government must not allow this to happen. From now on in it must play its cards very carefully, always thinking of the likely impact of its every move on public opinion.


Ultimately, if things do go wrong, Government will have only itself to blame.