#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Ghai's Kenyan constitution: a view of what's ahead for Fiji?

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Tuesday, June 26, 2012

Ghai's Kenyan constitution: a view of what's ahead for Fiji?

Will Ghai tackle the role of the military and regime members?
Yash Ghai’s analysis of Kenya’s  proposed constitution may well be a blueprint of how the Constitution consultation process will play out here in Fiji.

The 74 page booklet (as Ghai describes it) was produced in the run-up to the writing of a new Kenyan constitution.

Fiji's Constitution members say they have been told by Ghai, the Commission chair, to start researching a 'variety of papers and the constitution of other countries' in preparation of their work, which is expected to begin next  month.

Ghai's work in Kenya was one of his more noted achievements.

There is much to glean from the analysis but we suggest pages 15, 18, 31, 34, 36 and 37 in particular; it's where Kenyans have been asked to rate the old and new Constitution.

Note also Ghai's comment at the beginning of the booklet: "Some people have suggested there can be a change by means of an “Executive Order”. There is no such thing in this country. The President can do only the things that the law allows him."

That may well be the case but there is no law and to date, none of Ghai's writings deal with transition from military dictatorship to democracy.

We cite Sun Tzu from the Art of War: “Even the finest sword plunged into salt water will eventually rust." (Sun Tzu, The Art of War)

We also include a link to another handbook, that of the Dictator's Handbook (apparently a practical manual for the aspiring tyrant), which is doing the rounds at the moment.

Ghai's 74 page analysis of Kenya's proposed constitution

34 comments:

Anonymous said...

Mr.Ghai just advise your regime friend the 1997 constitution is still alive and law of the land of fiji.
If you are man of principle and ethic you will do this.
follow the april 2009 court ruling.
I hope and pray the regime and you will do the right thing.
No one is above the law.
We dont need new constitution every time there is a coup .
In 2000 coup the court ruling was done by current CJ Gate and the interim Govt held the court ruling and held the election under 1997 constitution.
god bless our fiji.
Rajesh

Anonymous said...

Each time I see photo of this Taliban SOB Aiyarse, my blood boils high. I am looking for an opportunity to front up this bastard in the face. Now I am convinced he is the architect of the demise of indigenous identity with the abolitioon of GCC, NLTB, Fijian Holdings takeover, removal of head lease payments to my chiefs, etc. His law thesis is in operation after 2006 coup.

Fijiana said...

I think we need to seriously look at the Westminster system of Parliament and constitution that we have had in Fiji in the past. Since 1970 this has really not worked well for us. Unfortunately Prof. Ghai is only accustomed to Westminster system. It would be worth our while to look at the American system as opposed to Westminster system.

America is a democratic country and their system has been proven to be a pretty good one. The oldest democratic country in the world is India. Please refer to this link.(en.wikipedia.org/wiki/History_of_democracy) They also adopted quite a lot from American constitution. I would entertain discussion on this matter and hear the views of the readers.

Anonymous said...

Mr Ghai if you are a qualified lawyer as youve mentioned you need to uplift the 1997 constitution.

You fully understand the law than anyone else in Fiji to be honest. You also know more on democractic elections.

Anonymous said...

Rajesh @ 7:40 PM

Wake up and smell the Java. 1997 Constitution is dead and gone. If you are so much concerned about Fiji, why don't you come back and raise your concerns from here. Like a coward you "put your tail between your legs" and ran away to New Zealand. If you are worth the salt that you eat, you will catch the next flight out of Auckland and come back to Fiji. I can bet that you will proof me right as I challenge to proof me wrong.

Anonymous said...

Sa sega tu mada nai lavo, se dou baci vakasaga tale e dua na constitution.
Kemuni ga na sotia ni kitaka tiko na ka qo. Ni yavu boci.
Veigauna ga constitution constitution.
Constitution ni sona ni vakasaga tiko.
Ni bau tovolea mada ni vakamuria na lawa ni matanitu.
Ni tauri koya na boci liutaki kemuni tiko qori ni sogoti koya yani i valeniveivesu.
Ya ga na constitution.
Na treason e cala vaka lawa.
O rai baci qori dou viritaki koya i Naboro.
Tovolea mada me vakayagataki na common sense.

Anonymous said...

Restore the 1997 consitution and form a governemnt of national unity made of MPs from all parties which will then amend the consitution and call elections in 6month time.

Who elected the junta?

Kai Gau said...

Duly noted C4.5 that at the moment there is "NO LAW" as the supreme law of the country has been purportedly abrogated to facilitate the draconian and dictatorship rule of the military tyrant Voreqe Bainimarama and his cohorts Aiyaz, Mosese, etc, etc.

Therefore, the ONLY NOBLE conclusion Ghai has to make from this process is to look to the 2009 Appeals court decision and realise that whatever Voreqe did in Dec 2006 was ILLEGAL, a CRIME and done to BREAK THE LAW, which is punishable in our country like rape, murder, robbery, etc.

Therefore, he has to decide whether he will listen ONLY to the military and make a NEW Constitution, which is unnecessary OR LISTEN to the people withwhom the supreme power is vested in when it comes to a democratic process that Ghai seems to appear to support and believe in, that the 1997 Constitution needs to be kept and ONLY AMENDMENTS made. And this amendment MUST include the role of the military to NOT INTERFERE IN THE RULING OF OUR NATION BY CIVILIANS ever again. Very simple.

Voreqe and Mosese, your place is at Delainabua. You cannot be in two places and think you're doing a good job for both. That would be like being a whore or as the saying goes in Fiji "E rua tiko na nona valenikuro".

MILITARY BELONGS IN THE BARRACKS.THE GOVERNMENT BELONGS TO THE PEOPLE AND THE LEADERS THE PEOPLE CHOSE!

Anonymous said...

In the coming constitutional 'dialogue', rely on Dear Leader Bainimarama to do what's best... for Bainimarama. 

Expect Yash Ghai to use the People's Charter as his point of departure for shaping Fiji's new constitution. Since the Charter has no validity except that imputed to it by the regime, this will be a sure, telltale sign that Ghai is in the pocket of the regime, although he will defend himself by saying he is only being 'realistic'. 

Don't be surprised if facets of the new constitution seem designed to end and/or prevent some of the abuses we've seen under Bainimarama/Khaiyum. I think it likely that some of Ghai's comments will even seem to criticise some of their past actions and denigrate their approach to governance. 

Don't be misled. This will likely be in the context of proposed reforms designed to strengthen the presidency and ensure a 'more independent' judiciary. And then, guess who will become Fiji's first strong president and who will become Fiji's new chief justice with tenure for life?

Rest assured that whether credited or not, much of the drafting for the new constitution will be by the same team that is drafting the regime's decrees.

The new draft constitution might well prove to be an improvement over Fiji's existing constitution in a number of ways. As I've written before, rat poison is 95 percent cornmeal. 

But the bottom line is that Fiji's constitution still lives. It cannot be legally abrogated, and it provides for its own amendment process. 

Even the idea on which the regime depends, that the Constitution can be replaced through a national referendum, is questionable, and made all the more dubious by the fact that the only 'emergency' that can be used as justification for this otherwise unnecessary exercise was self-engendered by a cabal of treasonous officers. It would be one thing if Fiji didn't already have a constitution, but it does, and it was working fairly well. 

A popular referendum, already of dubious legality for the reasons stated, is patently invalid if imposed upon the country by an illegal regime, especially if it is to ratify a document arrived at through a regime-driven, non-independent process without sanction of law.

s/ Dakuwaqa

Anonymous said...

I would like to ask again on the corruption of Tropik woods. As a staff, I am seeing all the friends of the CEO Faiz Khan, slowly moving in getting all work. Who is this degrated lawyer. Under what credentials was he appointed.

Even, his deals with Japan company went bad and tropik missed 3 ships for loading, what was done about that by frank and kaiyim.

He has no knowledge on the operation of this magnitude.

He is targetting his enemies using his powers in FIRCA board for his personal gain. People are saying that tropik woods has turned around. Thats only in fiji times, has the financials been released. No. Why???

How is this men appointed in all the boards. Why a Muslim Again. Where is Fiji Heading to.

He reduced all the logging rates of land owners so he can show that tropik woods is doing good. What about those land owners who are in debt buying their fleet.

How will they survive.

Can anyone else let me know on this.

Anonymous said...

Fiji need all leaders to sit in a forum and put god/fiji first.
We dont need people who have personal agendas and gain.
We have respect the rule of law.
People are well educated should advise the regime to uphold the constitution and rule of law.
Dont sell yourselves for few pieces of silver/notes.
Let move fiji forward with open mind and vision.
We have to forgive one another like christ said.
We have seen former PM all united to Move fiji forward under the rule of law.thats great sign.
fiji for christ.
united fiji for all.
god bless.
Rajesh

kite flyer said...

the president can only do what the law allows him to do. not in a military manipulated government. the ruling mob regard themselves above the law. you can't runaway from that reality. so all this fancy talk about everybody - including the president - having to abide by the law is a lot of bulshit on paper - which is easily ignored by the mob in power whenever they want to. so this whole new constitution making is just a form of mystification.

J Singh said...

I agree fully that the 1997 constitution is still our constitution Yash Ghai must do the right thing and respect the court rulings that are there confirming this.Fiji is unique in this respect that there are these legal judgements in place stating that no one can abrogate or change the constitution except by the legal parliament so why are we wasting all this time and tax payers money in this illegal exercise.Can yash ghai tell us that franks immunity will be in their illegal constitution ????? Ghai should advise frank & co. to eat humble pie and face up to their crimes!!!!

Anonymous said...

Mr Ghai, making a constitution in Fiji is not a classroom exercise. There is no level playing field in Fiji. Where is the freedom of speech and association you said you will demand from the regime? You cannot ignore the views of the major political parties which after all represent over 90 percent of the voters of Fiji.Stop kidding yourself. Your commissioners have no credibility; they represent no one. And what does Murray know about Fiji or about constitution making? It is all a hoax, man

Sorry for Fiji said...

Oh dear this is how mixed up Fiji is at the moment even wuthout Ghai joining the mix.

Military lends support to Police

17:04 Tue Jun 26, 2012

Director Police Operations - SSP Rusiate Tudravu

Taken from/By: FBC News
Report by: Vosita Kotoiwasawasa

The military will be supporting the Fiji Police Force in their clamp down on the use of government vehicles after hours says Director Police Operations Rusiate Tudravu.

The duration of the operation is not known but the message from the government is clear on the need for civil servants to be transparent in their course of duty.

Tudravu says Police officers on the ground are the ones handling the operation.

" No..no…this does not mean that the military is back. Police officers are playing the lead role while the military personnel are just there to support them."

Tudravu adds there will be no fixed check points as snap check points can be set up at any place in any given time.

“No one will expect us to be at any place in any given time. It can happen anywhere and is just random.”

A total of nine vehicles were seized during the operation last weekend.

Anonymous said...

We have to fight for democracy for fiji from outside fiji.look at fiji democracy movement in auss/nz/usa .
We couldnt fight and let our voice heard in fiji .we would be at the army barrack .
VRF -what happen ?people been charged for writing on the billboard.
learn from the great subash chand boss.
who fought the british to get t democracy for india now.
Subash boss was in germany to fight for india democracy.
Can you stand up and fight in fiji for democracy now -no.
The army/police have stolen peoples freedom/democracy .
So be smarter not dumb.
I hope i have ans your question mate.

Anonymous said...

Why didn't Qarase and his attorneys turn in April 2009 to the Appeal Court for a ruling of contempt against Bainimarama and Iloilo? Bainimarama et al disregarded the court's decision. They should have been found in contempt of court and a writ of mandamus issued from the bench to compel their performance of duty.

Anonymous said...

Anonymous 10:32, you're the coward, you puke. At least Rajesh signs his name. Why the hell should he return to Fiji so long as this regime is in power, unless he likes the prospect of being sodomised with a gunbarrel?

Since you say the Constitution is dead, then you're clearly one of the traitors in our midst. If you're so fuking brave, why don't you identify yourself? What are you afraid of, since you're protected by your buddy, Baini. Or are you afraid he can't protect you?

You're gunning for Rajesh, who is one man, but you've got the whole army behind you, and yet you're the coward who hides in anonymity.

Jone Senibua

Anonymous said...

Anonymous June 26, 2012 9:58 PM. The Amercan system is out of kilter right now nobody seems to know what to do! The right to carry arms is one place to start form. If the USA model was so great why haven't more countires around the world used. Westminster by all means but it has to be one that suits the country and its peoples, especially the minority groups! The problem we have with democracy is that its a system touted with this false sense of fairness? Once you have selected the winners of the election the fools go ahead and do what they like and the people are now governed by any laws the new law makers want to make up! Simply put we can't do shit till the next elections if thats any use and by then immaterial of what you want to do you stuck! There has to be a mechanism where those who sit in Parliament have to be accountable to the people not at election time but during the process of them managing the country. All on has to do is look at the irrepairable damage done to countries invaded in out time by the USA, Britain, Australia, NZ, France and other European countries under the various guises they use. And these a supposed to democracies who causing more harm by their invasions and i can't do shit to stop my Leaders till the next elections! In the mean time inncocent women, children and fathers are killed! DRi Yani!

Anonymous said...

Fijiana,

I've mixed feelings about your suggestion that Fiji turn to an American style system. 

The U.S. has a brilliantly evolved system of constitutional checks and balances, as well as additional checks and balances (e.g., judicial review, political parties, internal rules of the Senate, etc.) that are not explicitly part of its constitution but well established in custom, usage, law and/or precedence. The U.S. Constitution is the oldest living written constitution in the world. It has flaws, and some sections of it are no longer interpreted according to the original intent of America's Founding Fathers, but on the whole it is worthy of emulation, as are broader aspects of the American political system. 

By the way, variants of the presidential system are more widespread globally than the Westminster parliamentary model. Also, India is the most populous liberal democracy in the world but nowhere near the oldest. That would probably be England, which has an unwritten constitution.

Yash Ghai is familiar with the U.S. Constitution, but his understanding of it is terribly simplistic. A case in point is his bald assertion that many Americans are unhappy with the Constitution because of President Obama's difficulty in obtaining passage of Obamacare and Senate confirmation of various appointees. These are weak reasons for changing the U.S. Constitution, when stronger reasons abound. Regardless, most Americans are quite proud of, and pleased with, their Constitution, and ready to defend it with their lives.

My concern is with the powers of the American presidency. The presidency was modeled after Washington but has been held ever since by lesser mortals, with a few possible exceptions. Its powers were firmly established under Jackson. They were then pressed to the limits by Lincoln, out of necessity. Its powers were expanded still further under the Roosevelts, reaching their zenith under the 'Imperial Presidency' of Richard Nixon. Those powers have since been rolled back, but only by a peg. The President of the United States is still the most powerful person in the world.

The question is: Do we really want a stronger president in Fiji? 

On the one hand, had Ratu Mara been a stronger president, he could have resisted Bainimarama's urging that he step aside in 2000. Similarly, perhaps Iloilo or even Nailatikau might have defeated Bainimarama's treasonous acts since.

On the other hand, I've warned from the beginning that Bainimarama probably intends to usurp the presidency. Few seemed to share this view back then, but since then many seem to have swung to the same conclusion. Do we really want to empower the presidency, only to see Bainimarama install himself in the position?

An American-style presidency for Fiji would only work with particularly strong checks and balances, including, perhaps, some not found in the U.S. constitution, like an independent prosecutor. The kind of presidency Khaiyum intends to engineer would have more sweeping powers than the U.S. presidency, and fewer checks and balances.

I say study the U.S. Constitution and those of various American states, especially Nebraska, which is notable for the only unicameral legislature. Invite U.S. constitutional experts to explain that system's strengths and weaknesses. But don't ever confuse Fiji for the U.S. or the likes of a mediocrity like Bainimarama for a true hero like Washington.

s/ Dakuwaqa

Anonymous said...

Dri Yani, what's so bad about the right to bear arms? If Fijians had and exercised such a right, do you think Bainimarama would be getting away with his shyte?

And do you know how long ASK would last? Answer: About how long it takes to unholster and cock a pistol.

Examples like Fiji's are why so many Americans insist on keeping their right to bear arms.

If Fiji does change its constitution, maybe THAT should be written into it!

Anonymous said...

When Yash is finished, Khaiuum will change the name to Fijistan
and we will all be ruled by Sharia law.

Anonymous said...

@Anonymous 1:43 PM

I agree with a lot you have said but I would be interested to hear your explanation of who you regard as 'minority groups' in Fiji.

Are you refering to minorities such as women, the disabled, Rotumans and gays etc ?

Anonymous said...

Dri Yani, you don't understand democracy, so don't try to explain it.

Look it up... the USA model has been very influential all around the world. And Dakuwaqa is right. The presidential model is the most common... More common than the Westminster parliamentary model.

Democracies causing more harm by their invasions? I only wish someone would liberate us!

Fijiana said...

s/ Dakuwaqa @3:44 PM

Thank you for your point of view. I agree with you on some of the points that you have brought up. I think that they are very legitimate. I feel that the issues that you have raised could be modified and could be tailor made for Fiji's needs. We could tweak and improve the constitution so that it serves our needs and exceptions. Westminster system has failed terribly for Fiji. So why do we still need to go back to same old failed system? Would it not be better to try a system that is proven better elsewhere? Or should we like fools bet on a loosing horse with hopes that this time around the horse might win?

The fact is that we need "change" and something that is workable. I for one am tired of one coup after another. Each time we have had a coup, it has taken the country, the economy and the image of our beloved Fiji behind by years.

Fijiana said...

s/ Dakuwaqa @3:44 PM

Thank you for your point of view. I agree with you on some of the points that you have brought up. I think that they are very legitimate. I feel that the issues that you have raised could be modified and could be tailor made for Fiji's needs. We could tweak and improve the constitution so that it serves our needs and exceptions. Westminster system has failed terribly for Fiji. So why do we still need to go back to same old failed system? Would it not be better to try a system that is proven better elsewhere? Or should we like fools bet on a loosing horse with hopes that this time around the horse might win?

The fact is that we need "change" and something that is workable. I for one am tired of one coup after another. Each time we have had a coup; it has taken the country, the economy and the image of our beloved Fiji behind by years.

Anonymous said...

I had enough of this bs decree from this maichod .
I challenge khaiyum/frank to come out of fiji and let have a public debate anywhere in the pacific.
In fiji you are protected by the army /police.
If you have the gut come on radio or tv debate so we can expose all your corrupt practice and let people get free and fair ans.
What action been taken to publish all audit reports since 2006-2011?
How much debt fiji is in ?
How much salary fiji ministers been paid.
why nur bano is paying salary.
Where is so much promised of upholding the 1997 constitution / no military people will benefit .
All f lies from your regime.
I have texted your mate robert khan tarana seems he is scared to put us on radio debate. so people will know the truth.
Looking forward for the ans .
Rajesh

Anonymous said...

I have texted and called ask seems like the idiot khaiyum have no spine to talk.lamusona.
I have texted frank too -no ans.
truth will set us free.
fiji for fijians not for khaiyum /cronies.
time fijian armies wake up from the deep sleep how fijian been conned by this khaiyum and his muslim cronies.
look at all the govt boards .
who are there his muslim cronies.
i have some great muslim friends that hate khaiyum /cronies too.
rajesh

Anonymous said...

RIAZ AND AIAYAZ HAVE F FIJI UP AND CHOR MAICHOD.

Anonymous said...

It's not the systems that have failed Fiji it's the politicians that have failed the system and the people.

What ever political system you have in place in Fiji whilst there are those that can so easily get away with using it for their own personal gain nothing will ever work.

Seems just like a too high a percentage of these selfish morons in Fiji. Perhaps hopefully the next generation will be better.

Anonymous said...

Anonymous at 5:51pm you could you be right about me not knowing anything about Presidental Govts around the world but if there is measure one needs to look at the USA the cost and money involved to be in POWER! Now would you love to have similar one in Fiji were the one with the largest bucket of cash wins the day? As for the other comment about bearing arms i worked in the USA and sure as hell come any day of the week there in various hospitals-gun shot wounds and death is a kind life style! Whats the use of Presidential sytle of Govt when you can't clean up the streets when litigation is way of life where large companies almost own the the Govt thru their contacts ie money!

Anonymous said...

Anon @ 4:17 PM

You are absolutely wrong about MONEY issue in US election. I personally know that lots of candidates have won despite spending far less than their opponents. Just because you worked in US does not make you authority on the issue.

Anonymous said...

Anonymous 4:17, it sounds like you spent too much of your time in the United States in inner city ghettoes. 

The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted.

The U.S. Constitution effectively recognizes that all citizens have military and police powers, and the 'able-bodied' ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis. 'Able-bodied' is a term of art established by English common law at the time the Constitution was adopted and is the only qualification besides citizenship on what constitutes the 'militia'. While not well defined in modern terms, it is somewhat broader than just able-'bodied'. Persons might be excluded who were physically able to bear arms but who were mentally or morally defective -- or both, like the present regime in Fiji.

A Fiji-style coup is inconceivable in the United States, primarily because Americans exercise their right to bear arms. Defence of the 'state' includes self-defence and defence of one's family and friends who are, after all, part of the state. But the U.S. Constitution establishes the defence of the state as primary, thus laying a basis for requiring citizens to risk or sacrifice their lives in defence of the state. 

With high levels of crime, the only effective way to extend police protection to a level that might deter crime is to recruit a substantial proportion of the public to go armed, by issuing them carry permits, offering them police training, and organizing them into a network of militia units closely coordinated with regular law enforcement agencies. Probably as many as one out of four adults could serve in this way on a regular basis, and another one out of four on an occasional basis. The more who did, the greater the positive impact on crime. 

Such involvement of the public in law enforcement would also have other benefits, such as breaking down the social and psychological barriers that separate the regular police from civilians and deterring occasional abuses of authority by police.

If Yash Ghai is such a constitutional expert, then he knows that in democratic theory, no government has the power, unless that power is specifically granted to it under its constitution, to prohibit any person from manufacturing or possessing any gun or ammunition for it on his own premises or where he has a right to be, or against using it in a safe and responsible manner, or against selling or giving it to another person within the borders of a state.

Submissions to Ghai should include proposals for the constitutional protection of the right to bear arms. In a country, like Fiji, in which that right has been disabled, such proposals would be a profound statement of citizen discontent against the abuses of tyrannical coup government.

Anonymous said...

I agree with and support a constitutional right to bear arms. By all means include it in any submissions, for the reason excellently stated. But I respectfully ask that it not be added to the list of 'non-negotiables', as it would excite a great deal of contrary opinion at a time when we need to focus on a united message with which to topple this treasonous regime.

s/ Dakuwaqa