BLOG AIMS, ITS PUBLISHER AND USE
■ Cogito, ergo sum. I think, therefore I am. (René Descartes, mathematician and philosopher,1599-1650)
Monday 30 July 2012
Saturday 28 July 2012
Lockington's Everyday Fiji ... Life Goes On
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
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
Constitution-Making in Practice* by Ratu Joni Madraiwiwi
Ratu Joni (L) and Prof Yash Ghai at the book launch |
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):
- To think through and research the issues facing the country;
- To consider the choices of constitutional arrangements that will best respond to the issues;
- To educate and consult the people about the issues and the choices;
- To negotiate among major political groups and those with powers of decision-making about the constitutional choices;
- To administer and manage the Constitution-making process;
- To draft, debate and adopt a new constitutional document;
- 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.
* 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, |
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 |
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 ... |
-- Crosbie Walsh
Squatter Upgrading: The Lagilagi Project
Lagilagi ground-breaking ceremony |
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 |
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 Making, he 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.htmTHE 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 |
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.' |
... 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.
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.
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'.”
“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:
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?”
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.
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