|Yash Ghai, the regime appointed chair of the new Constitution Commission.|
In an interview with Coupfourpointfive, Yash Ghai admits there is no guarantee the regime will not interfere with the Constitution Commission he heads. Ghai dodges the coup exit question but insists a new Constitution is the only way out of the muck.
C4.5: Why did you agree to oversee the drafting of the new Fiji constitution?
Ghai: These are my reasons. I think that Fiji desperately needs a new constitution to return to a stable, fair democratic system. There are many good provisions in the 1997 constitution, but also problems—in part because the joint parliamentary committee rejected some recommendations of the Reeves’ Commission, thus detracting from the coherence of the constitution. Partly for this reason there has been considerable litigation on the formation and function of the cabinet.
I also believe that different groups and communities in Fiji need to resolve problems that have divided them and to overcome resentments and suspicions that have characterized Fiji for several years. A constitution making process, if transparent and participatory, can help to reconcile the people and to develop a consensus on the values of the constitution, representing a common vision of Fiji.
I consider that due to my comparative experience of constitution making and my knowledge of Fiji, I could play a constructive role in this process (as indeed I did in my own country, and in Papua New Guinea’s relationship with Bougainville). A number of Fijians urged me to take up this assignment. I responded to this even though it is at considerable personal inconvenience. I am not looking for any personal gain, but to assist reconciliation in a country which I know well and where I have many friends, from all communities.
C4.5 Critics feel the aim is to protect those who carried out the 2006 coup.
Ghai: I have already answered your question.
C4.5: Why are you so confident the process will be open and transparent?
Ghai: The PM’s statement is quite specific on the guarantees of participation and the freedom of expression and assembly. Instead of the critics expressing their cynicism, they should engage in the process and put the PM to the test.
C4.5: What makes you believe a new Constitution will help Fiji return to democracy?
Ghai: Elections have been promised after the constitution. The fundamental goals of the constitution as stated by the PM are clearly directed at a democratic constitution. It is up to the people of Fiji to ensure that this is achieved.
C4.5: You've said the regime should review laws restricting freedom - have you or will you insist it remove the new Public Order Act before the Commission starts it work so people can speak freely?
Ghai: I have been assured as have the people of Fiji that they can speak freely. Why don’t you try?
C4.5: Why a completely new Constitution?
Ghai: There is nothing in the PM’s statement that rules out consideration of the 1997 constitution. There are indeed good provisions in that constitution. But the experience of operating that constitution pointed to some difficulties, especially around the issue of power sharing—which ended up in courts more than once. The process would provide opportunities for discussions on the merits and demerits of the 1997 constitution. In constitution making one seldom starts with a clean state. One should always learn from the past.
C4.5: The issues of race, religion and the military are controversial and divisive - how do you intend to navigate these? And can you really please everyone?
Ghai: Your are anticipating! The task of the Constitution Commission is to listen to all who want to submit proposals and taking the fundamental goals into account, make its recommendations.
C4.5: Do you think executive presidency, proportional membership in the parliament, preferential voting mechanism (such as in Sri Lanka) would work for Fiji?
Ghai: This is a question for Fijians.
C4.5: It has been suggested the regime would like to see a referendum to name a president and then an election. Could this work for Fiji?
Ghai: This is also a matter for Fijians.
C4.5: What assurances can you give the regime will not interfere with the work of the Commission?
Ghai: I cannot give any assurances. As I have said, let the Fijians test the PM and the government rather than indulging their cynicism.
C4.5: You're currently working on Constitutions for Libya and Somalia - are there similarities between those countries and Fiji?
Ghai: It would take me too long to answer this question. There may be similarities, but basically each country has its own context, determined by history, tradition, system of law, and contemporary issues.
C4.5: People distrust you because you supervised Aiyaz Sayed Khaiyum's thesis, which is widely considered the blueprint being used to marginalise Fijians. It's also said you produced 'instability' rather than foster unity and that you did not do such a good job in Kenya, Nepal, Cambodia and PNG.
Ghai: Every one is entitled to their own opinion but it is useful to look into facts before jumping to conclusions. My task in Cambodia was not to write the constitution but, among other things, to report to the United Nations to what extent the regime honoured the constitution, particularly its human rights provisions.
C4.5: Are you really going to be able to produce a Constitution that will be endorsed by both the people and the regime?
Ghai: I am not going to produce a constitution. The people of Fiji (at least those who take part in the process) and the Constituent Assembly are going to produce the Constitution.
C4.5: There should've been a place in the Constitution for the Great Council of Chiefs. Can Fiji really a have a credible Constitution without some recognition of the traditional chiefly system?
Ghai: Again, this is a matter for the people of Fiji.