Saturday, November 30, 2013

Ethnic Balance in the Fiji Military

The second pass out parade in 2013
By Crosbie Walsh

It's not the first time the issue has been raised.

Thakur Ranjit Singh wrote several years ago on why there were so few Indo-Fijians in the RFMF. It was a concern mentioned in the People's Charter consultations.  There's periodic reference to it in the blogs, and this blog has mentioned it more than once.  

But what prompted our interest this time was a RFMF advertisement in the Fiji Sun, brought to my attention by a Fiji friend.  This is what he wrote:
Dear Croz, 
I thought I’d draw to your attention a couple of facts about the RFMF advertisement for its new recruits that appeared in last Thursday’s Fiji Sun (21/11/13). First, out of 250 recruits, only 7 are Indo-Fijians and 5 have names that identify them with mixed race and Pacific islander ethnicities. Second, these recruits were to march into camp last Saturday with among other personal belongings,  their ‘Bible, Hymn book’. 
All the recruits are men so there is no pretense at gender balance. At least 3 of the Indo-Fijians have Christian names. 
It seems to me that despite the rhetoric of non-racism, the Fiji army has remained largely an exclusive ethnic body in a multi-ethnic society. Over the last 7 years, the post-coup government has almost completely failed to address the huge ethnic and gender imbalance in our military. 
Moreover the call for ‘Bible’ and ‘Hymn book’ has the assumption that the recruits belong to one religion in a state that has pretensions to be secular. The call should have been for ‘holy books’ or not made at all.

Seven out of 250!  That's 2.8%. Even less than the proportion in 1996 when Indo-Fijians comprised 4.8% of the defence forces.

Ethnic imbalances, of course,  are a major feature of the plural societies created under colonialism where there was typically a coincidence of residential location and quality, employment and income, and a wide separation of the quality of life for different ethnic groups.

In Fiji and Suva, for example, up until and some years after World War II, most Indo-Fijians lived in Samabula; most Europeans employed by Government in the Domain, and most ethnic Fijians in peri-urban villages — except for the housekeepers and gardeners working for Europeans. The civil service was dominated by Europeans and  ethnic Fijians, and business and the private sector by Indo-Fijians. Sea transport  was Fijian; land transport Indian. Fijians were Christian; Indians Hindu or Muslim. And in the Suva I studied in the 1970s few secondary school children attended the school closest to where they lived. They travelled across town to the school that best fitted their ethnicity and religion, and their parents' ability to pay the fees required. Suva Grammar School was the first school, in the late 1960s,  to have a multi-ethnic sixth form.

With such divisions, it is hardly surprising that many ethnic Fijians and Indo-Fijians have so little knowledge of each other, and not at all surprising that their stereotypes can be so easily used for political and other purposes destructive of national unity. Thus, ethnic Fijians are lazy and Indo-Fijians greedy. They are under-represented in the military because they are unpatriotic and only interested in money.

My book Fiji: an Encyclopaedic Atlas was published in 2006, a few days before the coup, . On page 327, I wrote:
"Whatever the historic causes and however difficult it will be, it is important for national security that a better ethnic balance is achieved in the RFMF and the police force.

The figures then available from the 1996 Census showed Indo-Fijians comprised 32.7% of the police force and 43.7% of  the population.  I suspect the proportion is much lower today but there is no way of knowing because the Government —mistakenly— fails to collect and publish information on ethnicity and employment, or ethnicity and passenger arrivals and departures, or ethnicity and poverty, and in so doing it has removed the only way the ethnic situation can be monitored and reviewed, and imbalances corrected. The 1996 imbalance in the RFMF was noted earlier.

Given the  Bainimarama Government's stated aims of equal citizenship and a common national identity, one must ask why it has done so little to  address ethnic imbalances. It started well with the goal of multi-lingualism in the civil services and schools, but the former appears to have been forgotten and the latter is progressing so slowly. I have tried, on several occasions, to obtain hard data from the Education Ministry on civics education and language but I never received the information I requested.

In my 2012 interview with Land Force Commander Col. Mosese Tikoitoga, I asked whether there had been any effort to recruit Indo-Fijians. He told me they were not interested, and there was no policy to encourage their interest.

I thought for a while that there had been no attempt to change the ethnic composition of the military because Government feared that the soldiers would think Indo-Fijians were invading their preserve, and Government could not run the risk of losing military loyalty. But the actual threat to Government came from two ethnic Fijians, former senior officers Pita Driti and Ratu Tevita Mara, who plotted a mutiny against Government. Not the few Indo-Fijians in the force.

Although it is perhaps significant that Driti tried to shift blame on to the  RFMF's only senior Indo-Fijian officer Brigader General Mohammed Aziz. Just as they also claimed another Indo-Fijian, Attorney-General Ayaz Sayed-Khaiyum, was exerting too much influence on the  Prime Minister.  Ethnic animosity and the use of ethnicity for prejudicial purposes are alive and well in Fiji, and the continuance of major ethnic imbalances, such as that in the armed forces,  will ensure they remain so.

Fiji has experienced four coups, all initiated or involving ethnic Fijian officers. It could be argued that an Indo-Fijian presence in the  military may serve as a deterrent against future coups because Indo-Fijians are "unconnected" with chiefly and other iTaukei pressures. .

There are other reasons why there should be a better ethnic balance in the military and, indeed, in the police force, the corrections service and other walks of life. An almost totally ethnic Fijian military cannot inspire confidence among Indo-Fijians and  other ethnicities, and in situations where the military (or police) has to intervene, Indo-Fijians in particular will feel doubly threatened.

But the most compelling and immediate reason is that many of the powers given to the military since 2006, and endorsed in the 2013 Constitution, will continue until the 2014 Elections and beyond.

There is  reason to think that the Fiji military sees itself as the ultimate defenders of the State charged with the responsibility of maintaining of law and order: an adjunct and the equal, in times of crisis, to an elected government.

If this is the case (or even only part of case), it is especially important that its ethnic (and religious) composition broadly reflects that of the population.

The new electoral system will ensure fairer political representation; tomorrow's military must ensure fairer ethnic and religious representation.

Global Warming and Human Rights: Relativities and Priorities

Issues affecting human welfare are always difficult to prioritise but the West's attention to human rights, so often  narrowly defined as political and individual rights, seems at odds with the lack of attention given to basic human rights, such as the right to food, shelter and employment. Thus, in the articles that follow, the Asia Development Bank draws attention to the likely economic effects, including food supply, on millions of Pacific Islanders, while the European Union, that has withheld funding to the struggling Fiji's sugar industry, funds a Pacific Islands Forum-directed consultation on human rights in Niue, with a population of 1,200, about the same as that of Levuka. The consultation involved church and community groups — and 17 (sic!) government ministries and agencies. One outcome was a proposal to form a  Human Rights Committee! 

ADB’s Chilling Report on Pacific Climate Change

Kiribati: soon gone?

Disaster looms for low-lying countries
With world climate talks in Warsaw droning on to come up with a lukewarm agreement to require governments to set targets on curbing greenhouse gas emissions to curb global warming, on the other side of the world the Asian Development Bank is growing increasingly concerned about looming disaster for low-lying Asian countries.
In its second major report in little over a month, the Manila-based ADB said the Pacific’s developing member countries, with limited agricultural land and economic activities concentrated on low-lying coastal areas, face almost inevitably rising waters as the oceans heat up and polar ice caps shrink. The report is being released against the backdrop of Super Typhoon Haiyan/Yolanda, which struck the Philippines Nov. 8, taking the lives of at least 5,240 people and destroying or damaging one million homes. The intensity of the storm has been blamed some climatologists on the rising temperatures of the oceans from global warming.
In October, the ADB issued another major report, titled Economics of Climate Change in East Asia, indicating that as many as 2 million people in 23 Asian cities are at risk from rising sea levels, severe storms and intensified drought that could jeopardize US$864 billion in assets, including three major conurbations – the Pearl River Delta, Shanghai and the Kyoto-Osaka region in Japan – which are particularly at risk from rising sea waters.
In the current 104-page report, titled Economics of Climate Change in the Pacific, ADB researchers say there will be net negative impacts of climate change by 2050 regardless of which economic and model is used. If the world stays on the current fossil-fuel intensive growth model., the researchers warn, climate change cost in the Pacific is estimated to reach 12.7 percent of annual GDP equivalent by 2100.
“Even under a low emissions scenario in which the global economy is assumed to restructure itself to be service-oriented, the economic loss would still reach 4.6 percent.”
Losses are projected to rise over time under all scenarios, and would be largest with high emissions scenarios. The report identified Timor Leste, Fiji, Papua New Guinea, Samoa, the Solomon Islands and Vanuatu as particularly at risk although the study covers 23 Pacific nations. The results suggest that PNG would experience the most significant losses from projected climate change, reaching 15.2 percent of its GDP by 2100, followed by Timor-Leste at 10.0 percent, Vanuatu, 6.2 percent, Solomon Islands, 4.7 percent, Fiji, 4.0 percent, and Samoa, 3.8 percent.
Annual mean temperatures are projected to rise in the Pacific by a 1.8°C by 2050 under a medium emissions scenario. By 2070 under the same scenario, Fiji and Samoa are projected to experience an average temperature rise of approximately 2°C from the 1990 level. The PNG, Solomon Islands, Timor-Leste, and Vanuatu are expected to experience a temperature increase of more than 2.5°C on average by 2070, with some areas in these countries experiencing an increase of nearly 3°C in the same period relative to the 1990 level, the report says.
It also predicts a significant increase in the frequency of both El Nino and La Nina events, generally accompanied by intensified extreme weather events, extreme temperature, extreme wind, and extreme rainfall although cyclone frequency is generally expected to decline. High-range estimates suggest all the Pacific developing countries except Kiribati face a sea-level rise of more than 1.0 meters by 2100 under the medium emissions scenario. The Marshalls average just 2.1 meters above sea level. The government of Kiribati is making plans to evacuate is entire population.
“Overall, global warming is expected to negatively impact crop productivity in the Pacific, according to the report. “The largest yield losses are projected for sweet potato in PNG and the Solomon Islands, with losses in excess of 50 percent of yield for the former by 2050 under the medium emissions scenario. For sugarcane, losses would be relatively small in 2050, but would rise in Fiji by 2070 to a more substantial 7-21 percent. Maize would have moderate losses of 6-14 percent in Timor-Leste and Vanuatu by 2050, with a rise to 14-17 percent by 2070 in the former. Results also show cassava and taro would be significantly impacted. Rainfed agriculture appears to be particularly vulnerable to the impacts of climate change.”
Under a high emissions scenario, catches of skipjack tuna for the western Pacific are estimated to decline by an average of more than 20 percent, and for the PNG by as much as 30 percent. Across the entire region, total catch is projected to decrease by 7.5 percent under the same scenario by 2100. For big-eye tuna, small decreases in catch, usually less than 5 percent) are projected by 2035.
Under the high emissions scenario in 2100 climate change would likely also impact tourism, another key economic sector, to islands once considered paradise. As the world warms, the entire Pacific’s attraction as a tourism magnet is expected to lessen and revenues are projected to fall.
“By the end of the century, tourist numbers are projected to be approximately a third lower than in a business-as-usual scenario,” the report notes. “Under all climate scenarios, the impact of climate change would be to reduce tourism revenues by 27 percent to 34 percent for the Pacific region as a whole.”
Mass coral bleaching due to thermal stress has already occurred in the Pacific region and is expected to recur. The estimate of present coral area in the Pacific in 2000 is around 80 percent of what would have been in the absence of thermal stress (in the pre-industrial era). The analysis indicates that the Pacific would experience an increase in thermal stress that would likely result in a significant decline in coral reef cover, from 88 percent in the base year (1995) to 55 percent in 2050 and 20 percent in 2100.
Finally, climate change is expected to adversely impact human health, the authors note. Mortality and morbidity costs together are expected to reach 0.8 percent of GDP by 2100 under a high emissions scenario. Most of the estimated health costs would arise from respiratory disorders, followed by malaria and deaths from tropical storms. By 2100, approximately 80 percent of total mortality cost is projected to be caused by respiratory disorders due to climate change, and 14 percent by vector-borne diseases, particularly malaria.
The negative effect on agriculture contributes most to the total cost of climate change, followed by the cost of cooling households and buildings. “When income and population growth in the urban areas are considered, the cost of cooling is estimated to reach $1,017 million or 2.8 percent of the region’s annual GDP equivalent by 2100.
Economic impacts in the coastal areas would also be significant. The impacts in the coastal areas would consist of three components: dryland loss, wetlands loss, and forced migration. The total impact in the coastal areas, through all three channels, is projected at $469 million or 1.3 percent of the region’s annual GDP equivalent by 2100.
These costs don’t include the potential cost of such catastrophic events as Haiyan/Yolanda, which is expected to cost the Philippines US$559 million) in damage, nearly evenly split between infrastructure and agriculture. The cost of rebuilding houses, schools, roads and bridges in the typhoon-devastated central Philippines could reach $6-7 billion, or some 2.3 percent of GDP.
The ADB estimates that the Pacific region would require $447 million on average every year until 2050, approximately 1.5 percent of GDP, to prepare for the worst case scenario under the business-as-usual scenario. The cost could be as high as $775 million or 2.5 percent of GDP per annum. The cost of adaptation would be significantly lower under lower emissions scenarios. If the world manages to stabilize CO2 concentration below 450ppm, the adaptation cost is expected to be as low as $158 million or 0.5 percent of GDP per annum during the same period.

The report lists a series of policy changes necessary to combat the problem including adopting a risk-based approach to adaptation and disaster-risk management, climate proofing infrastructure, improving access to climate finance and others.

28 November 2013
Niue holds consultations on human rights

The Government of Niue, with support from the Pacific Islands Forum Secretariat, held its national consultations on human rights from 15 to 22 November 2013.
Niue is the third country to engage in national consultations with the Forum Secretariat this year, with similar consultations with Vanuatu and Palau already completed.
“The aim of these consultations is to look at how various human rights treaties have been translated at national level, and to identify some of the challenges faced in implementing human rights norms and standards,” said Mrs Gaylene Tasmania, Director of the Department of Community Affairs, Government of Niue. “We are working with key stakeholders to see clear work plans for the implementation of human rights principles and their integration into development plans.”
The national consultations held in Niue involved many government agencies, including Crown Law, Justice, Lands and Survey, External Affairs, Education, Health, Agriculture, Forestry and Fisheries, T?oga Niue, Health, Police, Treasury (including Customs and Tax divisions), Immigration, Environment, Public Works, Broadcasting Corporation of Niue, Post and Telecommunication, and Meteorological Services. Church groups, civil society groups and representatives from various other community groups also participated in the consultations.
“As part of the consultations for Niue, we also considered the establishment of a Human Rights Committee that will be tasked with the responsibility of looking at Niue’s international human rights commitments and ensuring domestic implementation such as treaty ratification, reporting and implementation,”
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Lockington's Everyday Fiji ... Life Goes On

Mt Everest- North Face from Base Camp
Base of Mount Everest

Many people do not know where Fiji is unless they are Sevens fans. But thanks to Matthew Webb, an Englishman who works in Suva, we received a little extra publicity when he joined a climbing group in the Himalayas.

"When I told my team that I was off to do this trip, they got very excited and gave me a survival pack to take along that comprised of a can of Fiji Gold, some wet wipes due to limited bathroom facilities on the mountains, and a Fiji flag to take up to base camp."

He made sure to take a Fiji flag with him when he embarked on an adventure to the Himalayas, the world's tallest mountain range.

Vinaka Mr. Webb.

Police Patrol
I have a sincere plea to the police officers at the Lautoka police station. Could you please step up patrols in the CBD and the fringes of the City? There has been a slight increase in robberies and your presence will help keep would be crime down.

In the CBD pick pockets have emerged and they are very brave. They work in threes and fours and are very professional. Taxi drivers get hassled and when they look around for police assistance there is none. We are approaching the festive season of Christmas and there will be a lot of drunks and pests on the road. One thing we are facing is people begging for money. They are a nuisance , especially when you refuse and they verbally abuse you.

If there is a shortage of staff, deputise a few of us who work at the market. We will keep law and order and assist you.

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.

Friday, November 29, 2013

The Driti Trial

  • WEEKEND POSTINGS Allen Lockington Column Climate Change and Human Rights The Ethnic Imbalance in the Fiji Military
  • Driti (L), Mara (R)
By Crosbie Walsh

Former Land Force Commander Pita Driti has been found guilty of inciting mutiny and is now remanded in custody as he awaits sentencing on the 10th of December.  The maximum possible sentence is 15 years. Also accused is Ratu Tevita Mara who fled the county last year rather than face trial.

The case is of more than usual interest because of some obvious and some perhaps not so obvious issues raised. Driti and Mara supported Bainimarama's removal of the Qarase Government in December 2006. Mara was almost certainly involved in the well publicised abuse of women protesters in early 2007. But later they appeared to be disenchanted with the way the Bainimarama government was proceeding.  They seemed particularly concerned that the Military Council, of which they were members, did not have as much influence over Cabinet decisions as they had hoped. And they were very opposed to the influence of the Attorney-General Aiyaz Sayer-Khaiyum, the chief architect of many government reforms and initiatives.

The case in Court
The prosecution claimed that Driti had made seditious comments to junior officers about the influence of the A-G on the Prime Minister, and had on two occasions asked witness Lt Colonel Manasa Tagicakibau to use his private intelligence cell to conduct surveillance on the Attorney General. Tagicakibau's understanding was that the surveillance was to help "remove or eliminate" the A-G, and his impression was that the A-G's life was to be taken. Driti admitted the surveillance but denied its alleged intent. He said the option of eliminating the AG was not his. It was proposed by Brigadier General Mohammed Aziz and that he had only heard of it  through Ratu Tevita Mara. He said he had not brought the issue to the PM's attention because he thought he was being set up by Aziz and wanted to investigate the issue himself.

The prosecution also claimed that Driti knew of the "Sudan Plan" and failed to pass on this information to the PM.  The plan was to cancel PM's passport when he visited Sudan in 2010 and not to allow him back in the country. The Military would then ask the President to dissolve the Bainimarama government, appoint an interim administration made up of the former SDL party including the Great Council of Chiefs and the Methodist Church, send the Bainimarama family to another country,  and bring in troops from Australia and NZ to secure the border to contain any internal conflicts from disgruntled people.  Driti admitted he knew of the plan but said its initiators were Mara and Aziz.

Evidence was also produced that showed Driti had met with Mara in September and October 2010, after Mara has been sent on leave, and attention was also drawn to the number of unaccounted weapons and ammunition at the Grand Pacific Hotel building site occupied by the military.

The defence produced no witnesses. Driti spoke in his own defence, admitting knowledge but denying culpability, and saying  he had not reported the plans because he thought he was being framed or set up.

The Assessors and the Judge
The Fiji judicial system involves the use of two or three assessors appointed by the court to advise High Court judges who are required to heed but not necessarily agree or rule on their advice.

In the Driti case the Judge instructed the three asssessors to concentrate on the facts and put aside their personal and political opinions.  Whether they did we cannot know but they found Driti not guilty.

Presiding judge, Justice Paul Madigan rejected the opinion of the three assessors and found  Driti guilty of "inciting to mutiny."  He said he found prosecution witness Tagicakibau "an honest and convincing witness" and Driti "evasive, divertive, petulant and ungracious ... he contradicted himself and gave evidence that was incapable of belief."

Specifically, the judge could not believe Driti knew nothing of any plans until Ratu Tevita Mara visited him in mid September 2010, even though,  by his own admission, he was receiving official and unofficial intelligence reports on at least a weekly basis. He did not accept Driti's reason for not informing the PM and his Commander-in-Chief of plans to remove him or the threats to the A-G's life. And concluded that the case against Driti was overwhelming.

Reactions to the Judgement
Devanesh Sharma
Former President of the Fiji Law Society, Devanesh Sharma told ABC's Pacific Beat programme that judges in the Fijian courts have always had the right to overturn the opinion of the assessors in any trial, and that there was nothing unusual in Justice Madigan's decision to  overturn the opinion of the three assessors. He thought the  Fijian judiciary is working well and is fair.

Sharma's assessment is most important because of his professional status, his detailed knowledge of the case,  and his everyday experiences dealing with the Fiji judiciary.

Perhaps even more telling, because no one could ever possibly accuse him of being pro-Bainimama,  is that ABC's Bruce Hill, supports what Sharma had to say. Listen to this video. It is definitely worth your time.

But this is not what they NZ public will read. News releases here are dominated by Michael Field, a veteran NZ journalist whose blatant biases on the Bainimarama government have been exposed several times on this blog.  It is impossible to avoid the judgement that Field is either so biased that he is blindly bigoted or that he has not done his homework. Either way, the NZ public deserve better from a supposedly informed and independent media.

This is what Field wrote on the Driti judgement:

Michel Field
"In a sensational turn, High Court judge Paul Madigan overturned the unanimous findings of a three person assessor or jury panel who earlier this morning found Brigadier General Pita Driti not guilty of the plot.

The evidence heard last week suggests several of Fiji's colonels were also plotting to overthrow Bainimarama in 2010. But Madigan's unusual over-ruling of an assessor panel under-scores the heavy international legal criticism laid against Fiji's judiciary that it is not independent of the military regime."

Fortunately, Cameron Slater on  his Whaleoil blog, offered a correction for the blog-reading NZ public.

Humorous as ever, Slater opens with Field, banned from Fiji, "interviewing his keyboard", before launching into "misleading information about legal processes in Fiji. ... Along with much of his article that doesn’t bear repeating it is so wrong. He clearly is clouded by his political leanings that he is actually prepared to deliberately mislead."

Cameron Slater
Here are Slater's corrections:
1. The assessor system is not the equivalent of a jury.
2. The evidence against Driti, that Field does not address,  on the Incitement to Mutiny charge was overwhelming. The sedition charge was in the alternative but also compelling. In fact, sources in Fiji suggest that the defence lawyer had conceded facts that he probably should not have as he probably misunderstood the law. The elements of the offence were largely admitted into evidence without objection. This is what made the assessor’s opinion perverse. In other words, on the evidence and application of the law to the proven facts, the assessors should have given an opinion of guilty.
3. What does Field mean by a “directed” verdict? The Summing Up to the assessors was an accurate statement of the evidence and the law.
4. Why keep applying NZ laws to Fiji? It does not matter whether NZ or any other “mature” democracy has a law against sedition. The fact is Fiji does. Why we insist on applying the laws and attitudes of New Zealand to a sovereign nation on the basis of whether or not they had a coup is just ridiculous. We have free trade agreements with countries with much worse human rights records than Fiji. New Zealand’s reaction, in particular MFaT and the media, to Fiji is incongruent when compared the the treatment of other countries.

One last word: on Aziz
Driti claimed Brigadier General Mohammed Aziz was involved in the plot and inferred he was the prime instigator. The Director of Public Prosecutions, Christopher Pryde says he will not comment on the allegations levelled against  Aziz at the trial.senior military officer, He said the right people to comment on this issue would be the police. RFMF Chief of Staff, Brigadier General Aziz is currently accompanying Defence Minister, Joketani Cokanasiga on an official visit to China.

Sunday, November 24, 2013

Budgets and Deficits by Prof. Tiru Jayaraman

Dr Jayaraman is a Professor at the Fiji National University’sSchool of Economics, Banking and Finance, Nasinu Campus.
Another Pacific island country (PIC) and another budget!
Papua New Guinea (PNG)’s budget for 2014 was presented early this week. Fiji’s budget was announced two weeks ago. Vanuatu’s and Solomon Islands’ 2014 budget are yet to be unveiled.
The worries continue to be the same: deficit, debt and sustainability.
Greater concerns are now about two other PICs, Samoa and Tonga, whose fiscal years are July to June. Their budgets for 2014-15 are due in June or so.
An International Monetary Fund (IMF) report on Samoa is more alarming.

PNG’s budget 2014
It is a record budget for K15.29 billion or US$ 5.74 billion.
The main objective is to offset the decline in huge construction expenditure in early 2014 as the US$ 19 billion liquefied natural gas (LNG) project is nearing completion.
The budget is a countervailing instrument, aiming at keeping up the aggregate demand for maintaining momentum of growth in jobs and incomes by boosting allocation for physical infrastructure.
It focuses on the Government’s key priorities of free education and free basic health care and infrastructure development.
Physical infrastructure
The allocation for physical infrastructure is K2.7 billion (18 per cent of the budget). The increase is by 45 per cent from last year.
As for social infrastructure, education also gets a record allocation of K1.5 billion (10 percent), an increase by 12 per cent from last year; followed by health sector with K1.38 billion (9 per cent) up by 37 per cent.
The total allocation for social sector is 19 per cent exceeding the allocation for physical infrastructure.
Revenue estimates for 2014 are based on GDP growth rate of 6.2 percent, supported by LNG project production going on stream next year.
It will give rise to growth in receipts from mineral taxes, as well as non-mineral taxes.
PNG estimated deficits
The estimated 2014 deficit is of K2.37 billion or 5.9 per cent of GDP, which is less than the revised figure of 2013 deficit at K2.7 billion or 7.9 per cent of GDP.
About 75 per cent of the deficit will be covered by domestic borrowing and the remaining 25 per cent by external debt.
Total debt stock is estimated to grow to K13.96 billion in 2014 from K11.6 billion in 2013. The debt-GDP ratio is expected to be below 35 per cent of GDP.
Some similarities
Both budgets are providing impetus to economic development through stress on capital projects and increasing domestic aggregate demand in the context of stagnant world economic conditions.
Both budgets have no new taxes. Both countries have the same kind of approach to provision of social infrastructure.
Fiji’s 2014 budget announced free primary and secondary education and loan assistance for tertiary students.
Just as PNG’s budget deficit is projected to fall in 2014 from its 2013 level, the budget deficit of Fiji is expected to decline in 2014 from the previous level of 2013.
Fiji’s budget deficit
Fiji’s 2014 budget deficit is projected to decline to 1.9 percent of GDP from 3.5 per cent for 2013; and debt level to 48.3 per cent of GDP in 2014 from 49.3 per cent in 2013.
Earlier this month, the Secretary-General of the United Nations Conference on Trade and Development, Dr Mukhisa Kituyi cautioned against increasing budget deficits and debt levels of developing countries, as they try to boost domestic demand in the face of stagnation of advanced economies.
“High levels of unemployment and a corresponding need for social services had increased government expenses and budget deficits would lead to further rise in budget levels,” he said.
The two approaches
Both Fiji and PNG have shown that governments can plan and strive for low budget deficits.
However, the approaches of two PICs differ. That is where the similarities end.
While PNG will be financing deficits by borrowing both domestically and externally, Fiji has indicated borrowing will be minimal and confined to capital projects.
Asset sales
Secondly, Fiji has planned asset sales to the extent of F$475.2 million, which are expected to swell revenue.
The planned sale of assets includes partial privatisation of the Fiji Electricity Authority, divestment of shares in Airports Fiji Limited and Fiji Ports Corporation Limited, sale of foreign mission properties and privatisation of the government printery.
The proposed sale of assets for increasing revenue has raised eyebrows. It is feared the likely buyers would quote lower prices or drag their feet.
If the assets sales do not materialise for one reason or another, deficit-GDP ratio may rise and more borrowing would have to be resorted to, raising the debt-GDP ratio.
IMF concerns on Samoa
The World Bank has struck the alarm bell that Samoa’s debt-GDP ratio would rise to 65.9 percent in 2014-15, despite ongoing efforts to keep it below 50 percent.
Samoa’s debt level has risen from 34 percent in 2007-2008 to 62 per cent in 2012-2013, because of rise in loan-financed deficits after the 2009 tsunami.
A debt sustainability analysis by IMF has shifted Samoa’s rating from moderate to high risk of debt distress.
Tonga’s debt-GDP ratio is reported to be above 50 per cent.
Debt levels
Most of the debt is external and is dominated by non-concessional loans. Repayment obligations are higher.
As they are in hard currencies, they impose severe difficulties including likely defaults.  Repayment can be done only if the country has accumulated enough foreign exchange.
In September this year, Tonga had to request China for extension of grace period when the first payment of US$7 million was due in respect of a US$60 million loan from EXIM Bank of China.
The World Bank has already raised Tonga’s external borrowing status from High Risk to Medium Risk.
Reprinted from the Fiji Sun

Saturday, November 23, 2013

West Doubly Wrong About China

Publishing this article is a departure from the normal. All previous postings have been on Fiji.  But if the author's analysis  is even partially correct, it contains important lessons for Fiji's foreign —and internal— policies.  If China can "do it their way" and succeed, why not Fiji, and other developing countries?

Asia Sentinel, Hong Kong    -    20 Nov 13
Two Schools of Thought on China – Both Wrong
Written by Eric X. Li, YaleGlobal

Li Keqiang says it’s time to get moving

With its “imminent collapse” or “peaceful evolution theories,” the West is wrong on China

From President Barack Obama’s ceding of the center stage to his Chinese counterpart at the recent APEC gathering to frenzied attempts to decipher the country’s political and economic directions from the party’s just finished Third Plenum, the rising giant of the East often dominates Western political discourse.
Unfortunately, such discourses are taking place on a faulty paradigm. Ever since 1989, mainstream western opinions about China have been dominated by two divergent theories with opposite policy prescriptions. The ultimate aim of both was to build a universalized world order, which, of course, could not be credible without China.
One is the “imminent collapse” school. Espoused by cold warriors, it predicted wholesale collapse of the country. The one-party political system was inherently incapable of managing the intensifying social and economic conflicts as the country went through its wrenching transformation from a poor agrarian economy to an industrialized and urban one. The Western alliance should seek to contain China, so the theory went, and thereby hasten the fall of a threatening power ruled by an illegitimate regime.
The other is the “peaceful evolution” school. These are the panda-hugging universalists who made the “they-will-become-just-like-us” prediction. As the country modernized its economy, China would inevitably accept market capitalism and democratize its political system, and proponents urged deploying an engagement policy to speed up this evolution.
Nearly a quarter century has passed since the Western intellectual and policy establishment has been guided by these two schools of thought about arguably the most significant development of our time – China’s reemergence as a great power. The report card is not pretty.
The assumptions made by the imminent-collapse school include the following: China was run by a dictatorial party clinging to the dead ideology of Soviet communism. Its political system inherently lacked the ability to adapt to the rapidly modernizing Chinese society. The myriad social and economic conflicts would soon implode, and the fate of the Soviet Union awaited the party state. With that, a major ideological obstacle to a Western-designed universal order would be removed.
Of course, the cold warriors have had to postpone the effective date of their prediction year after year for decades. What did they get wrong? It turned out that the party has not been holding back or reacting to China’s modernization, but leading it. Self-correction, an ability many attribute to democracies, has been a hallmark of the party’s governance. In its many decades of governing the largest and fastest changing country in the world the party has pursued the widest range of policy changes compared with any other nation in modern history.
Most recently it has successfully managed a highly complex transition from a centrally planned economy to a market economy – where many developing nations have failed. In the process it has produced the most significant improvement in standard of living for the largest number of people in the shortest time in history.
Because of this performance record, China’s modernization process has strengthened the party’s rule, not weakened it. The key driver of the party’s success is inherent in its political institution. Over the decades, the party has developed a process through which capable leaders are trained and tested – eventually emerging at the top to lead the country. Whereas elections have failed to deliver in many parts of the world, meritocratic selection has in China.
As embarrassing as it must have been for the collapse predictors, the bitterest disappointment belongs to the universalists who foresaw with philosophical certitude the inevitable evolution of China towards liberal democracy and market capitalism. Their conviction was guided by the grand post–Cold War narrative: After the fall of the Soviet Union, the world would come together under a globalized order. Western values were universal values. Western standards were universal standards. Indeed, many have capitulated to that narrative. A large number of developing countries transformed their political and economic systems, some violently, to meet the demands of globalization.
But China walked a different path. As the party embarked on dramatic reforms, the country possessed a degree of national independence unmatched by most developing nations. This ability to control its own destiny allowed China to engage globalization on its own terms. Its one-party system remained intact and the party institution matured and strengthened.
Its economic integration with the developed world was carried out in ways that brought maximum benefits to the Chinese people. Market access was granted in exchange for direct investments that created industrial jobs and technology transfers. The government exercised political authority above market forces and led the largest investment expansion in infrastructure and health and education in history.
The dream of “they-will-become-just-like-us” has evaporated. After the Cold War, many were enamored by the material successes of the West and sought to emulate Western political and economic systems without regards to their own cultural roots and historical circumstances.
Now, with a few exceptions, the vast majority of developing countries that have adopted electoral regimes and market capitalism remain mired in poverty and civil strife. In the developed world, political paralysis and economic stagnation reign. The hard fact is this: Democracy is failing from Washington to Cairo. Even the most na├»ve panda huggers could not sustain the belief that China would follow such “shining” examples.
If the West wants to deal rationally with China, a paradigm shift in thinking is urgently needed. And, perhaps, such a shift could provide fresh ideas on how the West can approach the world differently and even begin to solve its own problems.
To begin a reassessment, it is useful to first recognize what China is not. It is not a revolutionary power, and it is not an expansionary power. It is not a revolutionary power because, unlike the West of late, it is a non-ideological actor on the world stage and not interested in exporting its values and ways to the outside world. Even as its interests expand far beyond its borders – and make no mistake, these interests will be vigorously defended – it will not seek to actively change the internal dynamics of other countries.
It is not an expansionary power because that is not part of the Chinese DNA. Compared with the many empires in human history, even at the zenith of its own power during its long civilization, China has seldom invaded other countries in large scale. The Chinese outlook is that of centrality, not universality. More practically, the Chinese see, rather wisely, that, although it could not accept wholesale the current global architecture, its rise must be peaceful. Otherwise the consequences are unimaginable. China’s sheer size makes this so. Self-interest will dictate that China is likely to err on the side of restraint as it reemerges as a great power.
History is littered with precedents of failures to accommodate rising powers leading to tragic conflicts. But that does not have to be destiny. Give China time, allow it the space and independence to continue on its own path. Live and let live. The forced convergence led by the West is costing everyone, not least the West itself. Perhaps a healthy respect for divergence could pave the way toward a convergence of a more peaceful and sustainable kind.
(Eric X. Li is a venture capitalist and political scientist in Shanghai. This essay is adapted from a lecture given at the Oxford Union. It first appeared on the website of the Yale University Center for the Study of Globalization.)

Lockington's Everyday Fiji ... Life Goes On

Free Education

My niece had enrolled her 4 year old child at a kindergarten in Suva and was given an invoice for school fees. She was taken aback by this and said very timidly, "Isa, I though education was free?" The lady at the kindy smiled and said,"Sorry dear, we were not included."

Well, unfortunately early childhood education (ECE) was not included in the free education for 2014.Government probably has it reasons. But I feel its unfortunate. ECE is a vital part of education in that it prepares a child for class one. Many parents add value to their children's education by preparing them for kindergarten. We cherish ECE but we neglect, and the evidence is its not being included in the Free education for 2014. It is not too late to include them in free education.

The Ministry of Education can still do a little for young parents struggling to get their  children to start education and prepare them for primary school by allocating funds. I'm sure there are funds still kept safe that can be given to kindergartens.All we need to do is set up stringent measures for kindergarten owners to follow.

Kindergartens must now be included ( I hope they are already) in curriculum development unit of the MOE so that we can say that " We care for early childhood education."

But I know my friend Dr.Brij Lal will tell us why it was not included.

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.

Regulating preschool
Daniel Naidu
Thursday, November 21, 2013.

MINISTRY for Education permanent secretary Dr Brij Lal has confirmed regulations will be put in place on school fees for kindergartens.

While he awaits the decision by Cabinet on the proposed regulation, he would not release any further details.

He said while the government did not run kindergartens and did not provide free kindergarten education, it did encourage the opening of kindergartens, training of teachers and provision of support for kindergartens.

The 2014 National Budget provided an allocation of $3.3million to strengthen kindergarten education.

"We don't have kindergartens for all children in Fiji because we don't have the money to build these new kindergartens," Dr Lal said.

According to Dr Lal, there are 1002 private kindergartens in Fiji.

Kindergarten teacher Analesi Tuicaumia said early education was important because of the rapid brain development that occurred in children up to eight years old.

She is a global leader for young children, a designation given to her by the World Forum for Early Care and Education.

"Education is a great equaliser but for those who cannot afford early education and are left at home, there is no smooth transition to Class One or formal education," she said.

Saturday, November 16, 2013

The CCF Critique of the 2013 Constitution by Nazhat Shameem

The Citizens Constitution Forum  criticized the 2013 Constitution on several counts that have been noted in earlier postings.  I asked the former Director of Public Prosecutions (1994-99) and Fiji's first woman High Court Judge, Mde Nazhat Shameem, for her opinions on what the critique had to say about the judiciary. This is a substantial response that points to a number of important errors in the CCF critique. Her response should be read now and kept for future reference.-- Croz Walsh.

This is a comment only of the portion of the CCF analysis of the Constitution which deals with the judiciary. I leave the other parts of the analysis to others who may wish to comment. However, given the gross inaccuracies in relation only to the sections relevant to the judiciary, one cannot be optimistic about the validity of the CCF analysis on any other part of the Constitution.

In considering only the part dealing with the judiciary I found some surprising matters. Firstly, the analysis was misleading on the contents of the Constitution itself. One example is that it states that the Chief Justice is appointed by the Prime Minister when in fact the appointing body is the President. On legal matters to do with the Constitution, one must always strive for accuracy. Secondly, much of the criticism is of the Judicial Services Commission and of the appointment of judges, but the analysis fails to tell us what the relationship is between appointment and independence. For instance the system of appointing judges in New Zealand is very political. Does it follow that the New Zealand judiciary lacks institutional independence? Thirdly, while the analysis in other parts takes pains to compare the 1997 Constitutional provisions with the 2013 provisions, it does not do so in the case of the appointing of the judges. I believe that this is because the 2013 system is very similar to the 1997 system, and the CCF had no complaints about the 1997 system. Fourthly, the CCF makes an extraordinary statement about the alleged dominant role of the Chief Justice and the Attorney- General in the functioning of the Judicial Services Commission. Setting aside the Attorney for a minute, why is the greater control of the judiciary by the Chief Justice a bad thing? Surely it is a very good thing for the Chief Justice to have greater powers over the judiciary? If the authors of the analysis do not like the Chief Justice at present1, it is no reason to deprecate his influence over the judiciary. The personal should not guide the principle. Lastly, the CCF must have had access to the best measure of the independence of the judiciary? It is the United Nations Basic Principles for the Independence of the Judiciary. It is available online and gives a check list for countries to assess their own situation. Ironically it says nothing about how judges should be appointed, other than requiring appointment on merit and without discrimination. Perhaps this is why the CCF did not refer to it. However lawyers are trained to disclose authorities which are relevant even if they go against the lawyers’ argument, so I find the failure disappointing.

1. Generally
This is what the CCF Analysis says generally about the judiciary;

The Fiji Government Constitution structures the judicial system in the same way as the 2012 Draft and 1997 Constitution. The Chief Justice heads the Supreme Court and is a member of the High Court. The Court of Appeal is headed by a judge appointed as its President. The High Court hears most serious criminal, civil and constitutional cases. It also supervises the Magistrates Court, which handles less serious criminal and civil cases, and can determine constitutional issues that arise in such cases, subject to appeal to the High Court. Usually a case can be appealed from the High Court to the Court of Appeal and then to the Supreme Court, which has the final say in interpreting the Fiji Government Constitution.

My comment
This is rather a shallow overview of the difference in the Constitutions in relation to the composition and the role of the judiciary. The analysis says nothing about the significant provisions in section 97 of the 2013 Constitution which are designed to protect the independence of the judiciary. Section 97 states;

Judicial authority and independence
97.—(1) The judicial power and authority of the State is vested in the Supreme Court, the Court of Appeal, the High Court, the Magistrates Court, and in such other courts or tribunals as are created by law.
(2) The courts and all judicial officers are independent of the legislative and executive branches of Government, and are subject only to this Constitution and the law, which they must apply without fear, favour or prejudice.
(3) No person may interfere with the judicial functioning of the courts, or unreasonably interfere with the administrative functioning of the courts.
(4) Parliament and Cabinet, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, accessibility and effectiveness.
(5) Parliament must ensure that the Judiciary has adequate financial and other resources to perform its functions and exercise its powers properly.
(6) The Judiciary has control of its own budget and finances, as approved by Parliament.

This provision was not in the 1997 Constitution, section 118 simply stating;

118. The judges of the State are independent of the legislative and executive branches of government.

The other significant section is the Values section (section 1) of the 2013 Constitution which has no fewer than three values which are relevant to the judiciary. I highlight them in blue;

1. The Republic of Fiji is a sovereign democratic State founded on the values of—
(a) common and equal citizenry and national unity;
(b) respect for human rights, freedom and the rule of law;
(c) an independent, impartial, competent and accessible system of justice;
(d) equality for all and care for the less fortunate based on the values inherent in this section and in the Bill of Rights contained in Chapter 2;
(e) human dignity, respect for the individual, personal integrity and responsibility, civic involvement and mutual support;
(f) good governance, including the limitation and separation of powers and other forms of checks and
(g) transparency and accountability; and
(h) a prudent, efficient and sustainable relationship with nature.

It is a mistake to believe that the rule of law has nothing to do with the judiciary, and the separation of powers is of course everything to do with the judiciary. So is “an independent, impartial, competent and accessible system of justice”. These values were not included in the compact to the 1997 Constitution although a reference to the rule of law was in the Preamble. Thus the CCF analysis is woefully inadequate in an overview of the role of the judiciary. I come to the UN Basic Principles later in this comment.

2. The CCF Analysis goes on to say in relation to independence;

Independence of the Judiciary
The Fiji Government Constitution fails the ‘non-negotiable’ principle of an ‘independent judiciary’. The Prime Minister and the Attorney-General have significant control over the judicial branch, including all the independent legal offices and the vitally important Judicial Services Commission. There is a risk of abuse of power to appoint, remove and alter the salaries of judges (a situation little changed from the March 2013 Draft)”.

And then, even more disappointing is this comment;

Most modern constitutions provide for non-political appointment processes for all judicial offices. While the Chief Justice is often a political appointment, there is often some form of independent or bi-partisan selection and appointment
process in law or in practice. The independence of the Chief Justice is crucial since it often exercises significant powers, especially in interpreting the Fiji Government Constitution and appointing other judges.
Under the Fiji Government Constitution, however, the two highest judicial offices (Chief Justice and President of the Court of Appeal) are appointed by the Prime Minister after consultation with the Attorney-General (106). These two offices likewise determine their levels of remuneration (113) and the Prime Minister initiates the removal process by a tribunal. Security of tenure is still less for any non-citizen judge (which is common practice in Fiji), including Chief Justice or President, as they serve for maximum three year terms.”

In fact the relevant sections of the 2013 Constitution are as follows;

106.—(1) The Chief Justice and the President of the Court of Appeal are appointed by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General.
(2) The Judges of the Supreme Court, the Justices of Appeal and the Judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Attorney-General.
(3) The President may, on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General, appoint a Judge or a person who is qualified for appointment as a Judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
(4) The President may, on the recommendation of the Judicial Services Commission following consultation by it with the Attorney-General, appoint a person to act as a Judge of the High Court during any period or during all
periods, when an office of a Judge of the High Court is vacant or when a Judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
(5) A person is not eligible to be appointed under subsection (4) unless he or she is qualified for appointment as a Judge.”

Also relevant on the protection of judges salaries;

113.—(1) The salaries and benefits payable to, or in respect of, a judicial officer must not be varied to the disadvantage of that judicial officer, except as part of an overall austerity reduction similarly applicable to all officers of the State.
(2) The salaries and benefits payable to the Chief Justice and the President of the Court of Appeal shall be determined by the President on the advice of the Prime Minister following consultation by the Prime Minister with the Attorney-General.
(3) The salaries and benefits payable to any person appointed as a Judge (other than the Chief Justice and the President of the Court of Appeal), Magistrate, Master of the High Court, the Chief Registrar or other judicial officers appointed by the Judicial Service Commission shall be determined by the Judicial Service Commission, following consultation with the Prime Minister and the Attorney-General.
(4) The remuneration and benefits payable to or in respect of a judicial officer are a charge on the Consolidated Fund.
(5) A judicial officer is protected from civil or criminal action for anything said or done, or omitted to be done, in the performance of a judicial function.

The 1997 Constitution stated on appointment;
132.-(1) The Chief Justice is appointed by the President on the advice of the Prime Minister following consultation by him or her with the Leader of the Opposition.

(2) The judges of the Supreme Court, the Justices of Appeal (including the President of the Court of Appeal) and the puisne judges of the High Court are appointed by the President on the recommendation of the Judicial Service Commission following consultation by it with the Minister and the sector standing committee of the House of Representatives responsible for matters relating to the administration of justice.

(3) The President may, on the recommendation of the Judicial Service Commission following consultation by it with the Minister:
(a) appoint a judge or a person who is qualified for appointment as a judge to act as Chief Justice during any period, or during all periods, when the office of Chief Justice is vacant or when the Chief Justice is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office; and
(b) appoint a person to act as a puisne judge of the High Court during any period, or during all periods, when an office of puisne judge of the High Court is vacant or when a puisne judge is absent from duty or from Fiji or is, for any reason, unable to perform the functions of office.
(4) A person is not eligible to be appointed under paragraph (3)(b) unless he or she is qualified for appointment as a judge.
The 1997 Constitution on salaries said;
136. The remuneration of judges must not be reduced during their terms of office.
My comment
The 1997 Constitution was silent on who fixed the judges’ salaries. In fact it was usually the government through the Ministry of Finance and Public Service Commission. The judiciary had no control over the issue of remuneration.
And on terms of office the 1997 Constitution gave the Judicial Services Commission a choice under section 137 (3) and (4) to appoint a judge for life until retirement at 65, or to appoint him/her on contract for a term between 4 to 7 years. In fact most judges were appointed on contract.
A comparison of the new section 106 and the old section 132 is interesting. First of all, under both Constitutions the appointment of the Chief Justice was done by the President. To suggest, as the CCF does, that it is now solely an appointment of the Prime Minister is quite wrong. Secondly, under both Constitutions the President appoints the Chief Justice on the advice of the Prime Minister. The CCF analysis fails to highlight this. Thirdly the consultation process of the Prime Minister is now the only thing which has changed (other than the inclusion of the President of the Court of Appeal in the section 106 process). Under the 1997 Constitution it was done with the Leader of the Opposition. Under the 2013 Constitution, it will be done with the Attorney-General. That is the only difference. If the CCF had been critical of this difference, its criticism would at least be supported by fact. Currently the analysis is neither factually correct nor complete. It should be mentioned here that the UN Basic Principles on the Independence of the Judiciary is silent on the best model for the appointment of the Chief Justice. In fact it is silent on the method of appointment of all judges. It probably concedes that different countries have different systems of appointment (Australia, New Zealand and the US retaining a strong political process) and that the system of appointment has little to do with functional independence. In short, it does not matter how you were appointed. What matters is the freedom to be independent after appointment and security of tenure. Thus the CCF’s criticism is not only factually incorrect. It is also unsupported by international principle of the judiciary. As for remuneration of judges, the CCF analysis ignores the fact that under the 1997 Constitution, there was silence on the setting of salaries, and that the executive has always decided on salary scales. The analysis also ignores the protection against reduction of judicial salaries in section 113(1) of the 2013 Constitution.

3. Other judges
The CCF Analysis says of the appointment of other judges;
The position with independence of other judges and magistrates (and senior court officials such as registrar and masters, as well as judicial department employees) is little different. They are appointed by the Judicial Services Commission (JSC), which is controlled by the Chief Justice and Attorney-General, and they have no real security of tenure.”

My comment
Wrong again. The judges are appointed by the President on the recommendation of the JSC. The magistrates are appointed by the JSC. The 1997 Constitution had the same provision except that there was a consultation process with both the Minister for Justice and the Sector Standing Committee of Parliament, for the appointment of judges. The 2013 Constitution has a consultation process only with the Attorney General.

Also wrong is the accusation that the JSC is “controlled by the Chief Justice and Attorney-General”.
How is that conclusion drawn? On the basis that the AG is consulted on judicial appointments? But that was the position under the 1997 Constitution and there was no complaint. On the basis that the Chief Justice and President of the Court of Appeal are appointments of the PM? But that is factually incorrect and in any event in relation to the CJ, the process of appointment has not changed since 1997. On the basis that the PS Justice sits on the JSC? But under the 1997 Constitution the Chair of the PSC sat on the JSC, and he was seen as a government representative. So what has changed that suddenly the CJ and the AG are said to “control” the JSC? It appears that CCF simply does not like this AG and this CJ. Very little has changed on the appointments of judges except for the addition of a lay person on the JSC and the PS Justice who now replaces the Chair of PSC. If the process of appointing the CJ (on the PM’s advice) makes the CJ a PM’s appointment, then the same should have been said of the former Chief Justices who were appointed under the same procedure under the old Constitutions. The same was not said. This reveals the flaw in the CCF analysis.

In relation to security of tenure, the salaries and conditions of judges and magistrates are protected under section 113, and as I have said under ( 2 ) above, locals judges must be appointed for life until they retire. This constitutes a real improvement from the 1997 Constitution, and is in accordance with international principles on security of tenure. Their removal is also protected by the tribunal procedure, and only for inability to perform or for misbehaviour under section 112. This was exactly as it was under the 1997 Constitution and protects judicial officers from arbitrary removal. Thus security of tenure is well protected under the 2013 Constitution.

4. Chief Justice’s role as Acting president

The CCF says;
The Chief Justice will be acting President in cases of absence or incapacity of the President (88). This provision could politicise the office of Chief Justice by creating perceptions of links to executive authority. For example, even though the presidency under the Fiji Government Constitution is primarily ceremonial, Fiji’s history has shown that a President may be drawn into political controversies. Similarly, the requirement for presidential assent to laws passed by Parliament (48) could lead to the Chief Justice, acting as President, to either assent to an unpopular or controversial law, or assent to and then interest or apply a law. The Fiji Government Constitution was not accompanied by the promised explanatory report, so it is impossible to say why it did not instead provide for some other office-holder, such as the Speaker, to be designated as acting President.”

My Comment
Still clutching at straws. Looking at the new role of the President, what possible controversy will the CJ be drawn into? The job is only ceremonial, and the democratic process has taken over the role of the President. Even the state of emergency will now be controlled by Parliament. So what controversy is likely to occur? That the Fiji flag should fly at half mast at the death of a member of the British Royal family? Or that the hydrangeas should be shifted to the South Lawn at Government House? And who is preferable to act as President? The Speaker of Parliament is recommended by CCF, in which case you can see a hundred potential conflicts of interest especially in assenting to Bills just passed by Parliament. Whether the President assents to an unpopular law or the Acting President does so, the Constitution does not give the President powers to frustrate the passing of a Bill, popular or not. It is Parliament which is the authority for passing laws. If the President does not assent within 7 days, the Bill is deemed to have been assented to, under section 48. There is and was nothing controversial about that and the act of assent requires no act of deliberation by the President. As indeed was the case under the 1997 Constitution. It is also worth noting that in New Zealand, when the Governor-General is unable to act, the Chief Justice of New Zealand acts as Governor-General.

It is regrettable that so much of this analysis is fuelled by dislike for the present incumbent of the Office of the Chief Justice.

5. The Judicial Services Commission

The CCF says;

Judicial Services Commission (JSC)
The Judicial Services Commission, after consultation with the Attorney-General, appoints and disciplines all judges and magistrates other than the Chief Justice and the President of the Court of Appeal (108). Modern constitutions usually provide strong protections for the independence of bodies such as a JSC. They not only guarantee a JSC freedom from direction and control (as the Fiji Government Constitution does) but also offer protections through provision on their composition and mode of appointment of members that keep them separate from government. For example, membership is required to reflect specific interests separate from government, usually including the professional body for lawyers, and often the leader of the opposition, and a majority of JSC members are usually not appointed by government, but rather nominated by bodies associated with the interests they represent, so that the process for their appointment is independent of government.

All five JSC members are executive appointees. The Chief Justice, who is chairperson, the President of the Court of Appeal, and the Permanent Secretary responsible for justice are all appointed by the Prime Minister after consulting the Attorney-General. The Chief Justice then appoints the other two members, one of whom must be a lawyer, again after consulting the Attorney-General. The Chief Justice determines the remuneration, removal and suspension of these two members after consulting with the Attorney-General.
While one appointee must be a lawyer, there is no provision for lawyers as an organized body to influence the JSC. This is a most strange omission. Because judicial appointees are normally senior legal practitioners, lawyers should have a say in appointments through their representative as an independent legal profession. This leads to another problem that there is no independent law society since its abolition by Decree 16 of 2009. Without a body to represent lawyers independently of government control, no lawyer appointed to the JSC can be seen as an independent voice in judicial appointments, discipline, removals or remuneration.”
My comment

In 20062 the English system of appointing judges changed from the old system of appointments by the Lord Chancellor. The old system was political and as it is in Australia and New Zealand depended on government approval. Having said that, the system of appointment of judges appears to differ widely from jurisdiction to jurisdiction. There seems to be little relationship between appointment and independence. The English judiciary lived for hundreds of years with a political system of appointment but generally had a reputation for fairness and impartiality. Diversity and equality in the appointment process was however, another matter, and the Judicial Appointments Commission, created as an independent body3 under the Ministry of Justice, was designed substantially to make the appointment process equal in relation to appointments of members of minority groups and of women. The Commission has 15 members who are appointed on application from members of the legal profession and the public but three members are appointed by the judiciary and must be judges. The website for the Commission says this about selection processes;

“The JAC makes significant efforts to ensure our processes are fair and all applicants receive equal treatment.
Under the Constitutional Reform Act 2005, the JAC has a statutory duty to:
  • select candidates solely on merit
  • select only people of good character
  • have regard to the need to encourage diversity in the range of persons available for selection
In addition to our duty under the Constitutional Reform Act 2005, the Equality Act 2010 applied a general duty to public authorities to:
  • eliminate unlawful discrimination, harassment and victimisation
  • advance equality of opportunity between different groups
  • foster good relations between different groups”

So the underlying purpose of the Judicial Appointments Commission is obviously to remove cronyism, promote merit and ensure that there is no discrimination in the appointment process. It is a good aim. India is following suit. A Bill before the Indian Parliament is considering a model very similar to the UK JAC.4

The trouble with appointments in our past since independence was exactly that - cronyism, lack of transparency and gender and racial bias in appointments. Although Fiji is too small for a 15 member Commission, the JSC has grown from a three man (literally) Commission with the CJ, Chair of the Public Service Commission and the President of the Fiji Law Society, to a five member team with the CJ, the President of the Court of Appeal, the PS Justice, a senior practitioner with more than 15 years experience and a lay member of the public. There are two important differences in the structure and membership of the JSC. One is that more judges are on it, which is consistent with the UN Principles that judges should look after their own affairs, and the second is that a member of the public who is neither lawyer nor judge will be a member. If this member is robust about the public’s expectations of judges and the judiciary, this addition will bring a breath of fresh air to what was once an old boys’ club with secret decisions made with no guidelines. In no model has there been a political appointment on the JSC such as the Leader of the Opposition. The idea surely is to de-politicise the process, not to politicise it. Therefore the CCF criticism is shallow in the extreme. But one cannot blame the CCF for not knowing how much of a failure the former JSC’s were, how they lacked transparency, racial and gender equity and how dysfunctional they became because of the destructive relationship which existed between the judiciary and the Law Society. What I do criticise the CCF for, is that it ignores the philosophical and governance debate which has developed around two schools of thought – should the Chief Justice oversee judicial appointments as a measure of institutional independence or should the public, the legal profession, and politicians be consulted and involved in the process? The UK model puts the judges in a minority on the Commission but specifically excludes the politicians. The Indian model at present gives the CJ absolute authority to appoint judges free of executive control5 but is now moving towards the UK model with one notable difference – the Indian Commission will include members of Parliament.

One more issue in relation to the Law Society. The CCF says that the Law Society was removed in a 2009 abrogation. Wrong. The Legal Practitioners Decree gives the Law Society statutory status and requires the Society to register as the representative of legal practitioners. It is no longer compulsory to join the Law Society and it is not known how many financial members the Society has. However, the Law Society chose not to register and in law at least, no longer exists. Thus it has disqualified itself from membership of the JSC.

The members of the 2013 Constitution are selected either by the offices they hold or on the advice of the CJ after consulting with the AG. Under the 1997 Constitution it was the Minister for Justice who nominated members of the Independent Commissions6 (although the JSC membership had no nominated members because the three persons sat on it by virtue of the offices they held) so relegating the Minister to a consultative role only would seem to distance the JSC from direct executive interference. A person who is consulted in law, does not have to agree with a decision. He or she does not have to approve the decision. There is only a duty to consult. In fact, and in law, the government has very little say in the membership of the JSC or its functioning. The PS Justice is the only member of the executive on the Commission, and the model seems to favour greater control by the CJ and the President of the Court of Appeal over judicial affairs, in accordance with the decision of the Supreme Court of India in Advocate on Record Association v. Union of India7, but with greater transparency and accountability with a member of the public as a member and a senior member of the Bar.

It follows therefore that the criticism of the CCF above is misconceived and probably written without research on the role of Judicial Commissions and judges. It is also factually incorrect as to the appointment of the CJ and President of the Court of Appeal, historically inaccurate about the legal position of the Law Society and fails to consider why the JSC must be independent and transparent – it must ensure equality of opportunity in the appointment process, it must ensure judicial control over the affairs of the judiciary, and it must ensure accountability of judges to a process of discipline which is controlled by the judges themselves. I come to this last issue when I deal with the UN Basic Principles.

6 Administrative Independence

The CCF says;
It is also unusual for a JSC to have control over all non-judicial officers working for the courts. Such officers would normally be treated in the same way as any other public servant. Given the executive’s control over the JSC, it raises further concerns about that control. Another concern is that the JSC, like many legal institutions established under Chapter 5 Part B (discussed below), is required to ‘provide regular updates and advice to the Attorney-General on any matter relating to its functions and responsibilities’ (104).”

My comment

This is an extraordinary submission. Is the CCF really suggesting that non-judicial appointments in the judiciary should remain in the hands of the executive? Yet controlling budget and administration is a sure way of interfering with judicial independence! Let us say that the JSC recommends the appointment of a judge. The AG doesn’t approve but he was consulted and approval is not necessary. The name goes to the President, who is of course obliged to act on the advice of the JSC under section 82 of the 2013 Constitution. The Judge is appointed, but she now needs a secretary, a clerk and chambers. There are no spare chambers. So the Chief Registrar writes to PSC (under the old system) and Ministry of Finance to create new posts, build more chambers, and fund them. PSC refuses. Ministry of Finance has no money. So the judge is either not appointed or is appointed and cannot sit. Is this the CCF’s idea of substantive judicial independence?

In the 2013 Constitution Parliament must give the judiciary enough money to function and the JSC is responsible for the efficient functioning of the judiciary. The CCF says the JSC is controlled by the executive because of the way the CJ and President of the CA are appointed. As I have said earlier, that argument does not wash. After all, what has changed from the 1997 method of appointing the CJ and why did the CCF have no problem under the 1997 model? Was the JSC controlled by the executive then, because the CJ was appointed on the advice of the PM? As for the requirement of regular updates to the A-G, the requirement is of updates. It does not permit an investigation by the AG into the judiciary nor does it presuppose a judicial acceptance of the AG’s views. The consequence of giving the judiciary almost unlimited autonomy over its own affairs, is that the tax payers may never know how their money is being spent or how efficiently the judiciary is functioning. The requirement of updates under section 104(7) is a briefing relationship seemingly unconnected with functional judicial decisions. I say seemingly, because a government determined to interfere with the judiciary may try to manipulate even the strongest judiciary. Much depends on judicial leadership to protect institutional independence and the independence of the individual judicial decision. Thus for instance, under the 1997 Constitution the JSC had to consult with the Prime Minister before making appointments to the magistracy, and had to get his consent before appointing a non-Fijian citizen to the judiciary. That was a section (section 133, 1997 Constitution) which could have been used by the executive to stack the magistracy with pro-Government magistrates. I do not believe that it was, but that possibility did exist under section 133.

7 Constitutional Applications

The CCF says;

The Fiji Government Constitution allows only the Cabinet to seek such [constitutional] opinions, and only from the Supreme Court (91).
This is a much narrower provision compared with many modern constitutions. The 1997 Constitution empowered the President, who was appointed by the Great Council of Chiefs (and so not a Government appointee) and had discretionary powers, to seek such opinions (123). Possibilities under the 2012 Draft would have been much wider still, as it allowed any person to ‘institute court proceedings alleging that any law, act or omission’ was contrary to the constitution (120).”

My comment

Wrong again. The Constitution empowers any court or tribunal to interpret and make findings in relation to any section of the Constitution. That is clear from section 7(1) of the Bill of Rights, which refers to any court, tribunal or other authority which interprets the Constitution. However Constitutional Redress applications in relation to contraventions of the Bill of Rights will only be made in the High Court under section 44 which is of course exactly the same as it was in 1997. Furthermore when Constitutional matters are argued in the subordinate courts, under section 44(5) the parties or any one of them can apply for the matter to be referred to the High Court for determination. The procedure under section 91 (5) giving Cabinet the ability to move the Supreme Court for a judicial interpretation is only a way for Cabinet to seek an opinion. It does not stop anyone else accessing any of the courts to seek Constitutional declarations and indeed the High Court Rules have been used, especially through the Order 53 Judicial Review procedure to do exactly that on many occasions. Another avenue available to anyone is the Originating Summons procedure under Order 28 or an application for an injunction seeking to stop breaches of the Constitution. Constitutional guarantees of free speech were in fact argued in an application under Order 29 for an interlocutory injunction in Mahendra Pal Chaudhry v Laisenia Qarase & Fiji Television Ltd. [2005] HBC 585/05S Ruling 14 December 2005, under the 1997 Constitution which had the same provisions. The CCF falls into error when it assumes that the Cabinet access to the Supreme Court is the only way to get a Constitutional opinion. It is not, and others who seek such interpretations whether as an application for declaratory relief or in the course of a criminal trial will have one advantage over Cabinet – they will have a right to appeal through the court system, subject to the Court of Appeal and Supreme Court Acts. As it is any person can access the courts at any time to seek declarations or other relief in the course of other cases (or on its own under the Redress provisions) and the CCF claim that access is restricted is fortunately incorrect.

8. The United Nations Principles on the Independence of the Judiciary

So, how do the sections in the 2013 Constitution measure up to international standards?

The Principles are very easy to find. They are at; with a more detailed commentary on how the Principles can be implemented at;

I set them out in full (I exclude the Preamble) and next to each Principle I refer to the section of the 2013 Constitution which is relevant to the Principle;
Independence of the judiciary
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Freedom of expression and association
8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
Qualifications, selection and training
10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.
Conditions of service and tenure
11. The term of office of judges, their independence, security, adequate remuneration, and conditions of service, pensions and the age of retirement shall be adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration.
Professional secrecy and immunity
15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
Discipline, suspension and removal
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Section 97 (2) (3) (4) (5) and (6)

Section 97(2), Section 15(1) and (2)
Section 16(1)(c) note also common law principles on the applicability, scope and breadth of ouster clauses
Section 97
Section 15 and especially 15(10) and (11)

Section 14, and 15
Section 97 (5)
Section 17 with a limitation under section 17(3) (e) for the courts and (f) for imposing restrictions on public office holders
Section 20 applies to all persons on right to fair employment practices. Note the Principles only say that any method of selection should be non discriminatory and no method is recommended. Section 105 on qualification (highest competence and integrity) – salaries protected section 113
Term-lifetime until 70 (locals) 3 years for expatriates and 11 12 13 and 14 all matters for the JSC. 14 is now controlled by the judiciary section 104 (4) and (5)

Judicial immunity – section 113 (5)
Section 104 (2) gives the JSC powers to investigate judicial officers. The procedure may be set out in regulations, same as section 131 (2) of 1997 Constitution
Removal – section 111 and 112 same as 1997-only by tribunal process
JSC decisions to discipline are all subject to judicial review section 16(1)(c)

With respect, this is a much more objective way to assess the adequacy of the 2013 Constitution in relation to the independence of the judiciary. The emotional approach adopted by the CCF, of assuming that all is tainted because of the way the Chief Justice is appointed is not helpful and is not guided by international principle. It is not helpful either to suggest that all expatriate judges should be appointed for life when a reliance on expatriate judges must be considered a stop gap measure in any jurisdiction which works toward a truly home grown judiciary staffed by Fijians at all levels. In any event a three year term for expatriate judges is still consistent with Principle 12. Nor is it helpful to state the contents of the Constitution inaccurately causing other people to be misled. Any analysis of a Constitution should be done thoughtfully, and on the basis of principle and the law. Sadly the CCF analysis appears to have been guided by personal dislike, subjectivity, and pique that the Ghai draft was not, in the result, accepted by the Fijian Government.
1 The Executive Director of the CCF and the CCF were in 2012 cited for contempt of court for publishing an article in the CCF newsletter stating that the judiciary of Fiji lacked independence. They were found guilty by Calanchini J in 2013 and sentenced to a suspended sentence and fines of $20,000 and $2000 respectively. At paragraph 7 the court said; “The Respondents were found to be guilty of contempt scandalising the court on the basis that the words as understood by the newsletter's fair minded and reasonable readers would have the effect of raising doubts in their minds that disputes between members of the public and between members of the public and Government would not be resolved by impartial and independent judges. I concluded that as a result the words had the effect of undermining the authority and integrity of the judiciary in Fiji and hence undermining public confidence in the administration of justice.”

2 The Constitutional Reform Act 2005
5 Advocate on Record Association v. Union of India. (1993) Supreme Court of India
6 Section 143 (4) of the 1997 Constitution

7 See footnote 3