Fallout from Draft Seizure and a Few Facts

Please note that the  quote from the Commission's Explanatory Report is an addition to this article as it was first published.

Yash Ghai presents draft to the President

 By Crosbie Walsh

This is the second article on developments in the constitution dialogue. Others, listed at the end, will follow.

FijiToday reports that the NGO Coalition on Human Rights, a vocal anti-government grouping chaired by Shamima Ali, has demanded explanations for the police seizure of copies of the draft constitution.  Their statement is based on the Hill-Ghai ABC radio interview and it appears to be unaware of the legal issues discussed in my posting "Making a Mountain Out of a Molehill."

The organization wrongly states the "actions of the police demonstrate the obvious deterioration of the respect for the rule of law and a total disregard of a supposedly participatory processes." The seizure was within the law, and it was Prof Ghai who acted outside it by claiming ownership of the copies, presumably with the intention of distributing them, when this act was clearly no longer his responsibility. He ceased to be a commissioner when he submitted the draft to the President, and the Constitution Process amendment  decree, No. 64, expressly removed the right of the Commission to distribute copies to the public. (Articles 10 (3) and 8 1 c.)  This task was the responsibility of the Constituent Assembly which will convene in two weeks' time.

That Prof Ghai knew he was acting contrary to this legal requirement is evident from this paragraph, written before the event, in the Commission's Explanatory Report  that was to accompany the draft:

The Decrees had provided for the Commission to consult the people on the Draft
Constitution and to pass on the views of the people to the CA. At a late stage (November
2012), the Decrees were unfortunately amended to remove that provision, without any
consultation with or advance notice to the Commission. The Commission regrets that the
people seem to have been denied an important opportunity to engage in discussions on
the Draft Constitution before the CA deliberates on it, which would have helped its
deliberations. 

One may criticise this amended requirement and sympathise with Prof Ghai's frustration,   but one cannot deny its existence. Further, one cannot infer, as the NGO has done, that the non-distribution undermines the whole  dialogue process. The public will have ample opportunity to discuss the draft constitution once it is presented to the Constituent Assembly.

Shamima talks of "this regime that forced this process on us", of "bullying tactics and interference", and "the people of this country deserve more than just being led down a track at the whim of a few people in power." Her choice of words is surprising for a lawyer and do little to advance her argument.  They merely add more height to the size of molehill.


The original and the amended decree
The original Fiji Constitution Process (Constitution Commission) Decree, No. 57 of July 2012, 7(1c&j) allowed the commission to carry out research into existing laws and present the draft to the people and (k) the President. Article 8 (1) stated it was the job of the Commission to "keep  the people of Fiji fully informed of the progress of debate and adoption of the Constitution in its passage though the Constituent Assembly." It also stated (Article 1 3 c) that the Commission is dissolved on presentation of the draft constitution to the President. This provision seems at odds with the previous one.  How can a  dissolved commission  continue to inform the public?

In the amended decree, No. 64, of October 31, Article 7 limited the commission's role to preparing a draft and explanatory report for submission to the President.  Reference to research and hearing the public's views on the draft constitution was omitted. Article 8 1 d removed the words "and the views of the people of Fiji expressed on the draft constitution and (e) adopt the draft Constitution."  It is not clear to me why the Commission was required to adopt the draft constitution. I would see this as a job for the Assembly. In these two respects the amended decree may be seen to be  clarifying ambiguities in the original decree —although I have little doubt there were also other, more complex, reasons.

The amended decree left no doubt that the draft was to go directly to the President, and at that moment the commission would cease to exist.  Its secretariat, however, would continue until the Constituent Assembly met when its future would be decided.

Assurances of public participation
In a statement on Thursday 27 December, Government said it regretted that the draft constitution had been leaked and deemed it inappropriate to make any comment under the circumstances.

"We have always said that public discussion of the document will begin when the Constituent Assembly meets. It is therefore the task of the Assembly, not the Government, to release the draft when the time comes."

Earlier, on December 8, at the 14th Attorney-General's Conference, both the PM and the Attorney-General reassured the public that they would have access to the draft constitution as well as the Constituent Assembly. At the time, I think some people assumed this could mean before the Constituent Assembly met but a closer reading suggests they were referring to public access after the Constituent Assembly meets in the second week of January. The A-G said the public would be able to make presentations to the Assembly and would be able to discuss their concerns with their Assembly representatives."There is no restriction on the Assembly talking to the public," he said.

At the same conference the PM said, "We cannot again allow a narrow band of elite to determine our future. We have already had a handful of men determine what our constitution would be after independence, we have already had the 1990 constitution imposed with almost no consultation at all, and we have already had the key recommendations of the Reeves Commission overturned by a joint parliamentary select committee. This will not happen again."

My take on this is two-fold.  First, the whole Ghai-police incident and its fallout is unfortunate, inflated, and has been largely misinterpreted, by the media mainly unintentionally, by anti-Government bloggers deliberately.  Secondly,  Government's intention was never to prevent public discussion on the draft decree but it wanted the discussion to take place after the Constituent Assembly meets.

However, Government may been more relaxed about this  requirement  if its relations with the Commission had been better, and if it had not become aware of some of the draft's "transition" recommendations that were to bridge the period up until the 2014 elections. I shall discuss  these recommendations in a later article.

What Government wanted to avoid
What Government now wanted was to avoid  what is now happening, thanks to the Yash Ghai-police confrontation and Fiji Leaks publication of an early copy of the draft: namely  loose, uninformed comments by anti-government people, pushing their own partisan barrows,  with little to no attention being given the facts of the case that do not support their position.

The situation may be likened to a murder case where, prior to the appointment of the jury, the media has so influenced public opinion that it's almost impossible to select an impartial panel of jurors. In the Fiji situation, this will make the selection of members of the Constituent Assembly more difficult, and possibly less representative than was intended.

It is no secret that Government and the military will not agree with all the Commission's recommendations, but neither will all the anti-government people. Different positions were to be expected (after all, many anti-Government people challenged the need for a new constitution and the legality and plausibility of a Commission appointed by the "illegal government"). It will  be the unenviable job of the Constituent Assembly to seek final consensus or majority agreement on the outcomes. Events over the past few days will not help them.

Breakdown of trust
There were early signs of conflict between Government and the Commission it had appointed to draft a new constitution (see my early postings on my Fiji visit, and the kerfuffle about the appointment of Ratu Joni Madrawiwiwi as a consultant) and it has been evident for some time that Government thinks Commission members have not honoured articles in their appointment that:

• Called upon them to be neutral (Articles 13 1 & 2 of decree 57)
• To  "rigorously avoid any involvement with politically or otherwise clearly partisanorganisations (Schedule 2, 4) and
• To "not accept any bribe, benefit or favour, including hospitality, from any person whowould stand to gain from any decision the Commission might make (Schedule 2, 6).

I believe that the breakdown of trust on these issues precipitated the October amendment to the original decree, the confiscation of the draft constitution from the printers, and  Yash Ghai's last minute attempt to get the draft distributed, despite the prohibition on its distribution.  He no longer trusted Government and Government no longer trusted him.


What Government should do now
The Permanent Secretary of Information Sharon Smith John has said Government will not be committing on the situation. Discussion on the draft is the prerogative of the the Assembly. Land Force Commander Col. Tikoitoga has condemned Yash Ghai and those who have released what now appears to be an early draft, saying that they have broken the law.

I have no problem with these statement but more is needed.  Government also needs to condemn the burning incident and the alleged use of foul language by the police.  I have little doubt they were  a consequence of frayed tempers ,and I am certainly not persuaded by Russell Hunter's claim on Fiji Leak that the burning was authorised by the A-G. The confiscation yes; the burning no. How ridiculous some people can be in their attempts to discredit Government.

The police action in confiscating copies of the draft constitution was legal but they went beyond their brief in using intemperate language in speaking with Professor Ghai, and the burning of the galley proofs  can only be described as childish and unfitting behaviour for a senior police officer.

Failure by  Government to publicly denounce these incidents will not stop  anti-government people fanning the flames of doubt and distrust, but it would help ordinary people to better see the incident for what it was, and understand why Government wanted to delay  open discussion on the draft constitution until it is received by the  Constituent Assembly.


Notice
In my next article I shall look at  issues related to the appointment and mandate of the Constituent Assembly, and the  process leading to the adoption of the new constitution.  This will be followed by articles looking at  the major recommendations in the draft;  the submission of the military (which is likely to be close to the  government's position), and  the transition processes recommended by the Commission in the lead up to the 2014 election.

Meanwhile, I shall try to ignore the prophets of doom who see the Ghai-police incident as a localised
Armageddon.


Probable future articles:
The Constituent Assembly
Commission draft - main recommendations
The RFMF recommendations
Commission draft - Transition proposals