|Ghai: regime putting credibility of elections at stake|
They are the Fiji Constitutional Process (Constitution Commission) Decree 2012 and Fiji Constitutional Process (Constituent Assembly and Adoption of Constitution) Decree 2012.
Both relate to the drafting of the new Constitution to replace the one Frank Bainimarama and Aiyaz Sayed Khaiyum illegally abrogated in 2009 to ensure their longevity.
According to Khaiyum, the Constitution Commission decree will allow Section 8 of the Public Order Amendment Decree to be amended to allow what he says is the 'full participation of all Fiji citizens in the process', including political parties.
Supposedly, no permits will be needed other than those for meetings held on public roads, in public parks or gardens and in sporting arenas and people can appear before the Constitution and say what they want without fear of reprisals.
So if the decrees are so good, why then has the regime-appointed Constitution Commission gone public with its concerns?
In a statement, the Commission says the Decrees give it and the public much greater clarity on the process being undertaken to formulate a new Constitution.
But the Commission and its chair, Yash Ghai, go on to reveal that it is worried at how the regime continues to maintain control of the process, even as it professes to relax its grip.
Here's what they say: ".... although the Constituent Assembly Decree lists some of the groups that will be represented in the CA (such as political parties, trade unions, women, the military, and civil society, etc), it gives the Prime Minister full control over the size and composition of the Constituent Assembly.
"There is no indication of how many members will be drawn from each sector or what other sectors might be included. There is also no provision giving the groups that are to be represented a say in who should represent them in the Assembly. The Prime Minister will also appoint the Speaker of the Assembly.
"These arrangements effectively mean that the essential principles of democracy are ignored and the independence of the Assembly is negated. In the light of the fact that members of the present government may wish to compete in the forthcoming elections, it is particularly important that they should not control the process that will, among other things, set out the rules for the elections. This will undermine the credibility of those elections."
Ghai and the Commission are also right to be alarmed about Khaiyum's announcement that any any draft constitution must include immunity for the events that emanated back in 1987, the year Fiji had the first of its four military coups.
Khaiyum says after the 2014 elections, no immunity will be given to members of the police or the military and that next year a Constituent Assembly will be established with Bainimarama to determine its members.
The draft constitution is expected to go to the illegal President who will then pass it to a tribunal appointed by the chief justice with the tribunal checking the draft to ensure it is in line with the non-negotiable terms and the immunity provisions.
Ghai and co again: ".... the Decrees require a broad immunity provision for the 2006 and earlier coups to be entrenched in the new constitution.
"Among other things, the new constitution is to grant the same, broad immunity for actions up to the first meeting of a new Parliament to members of the government, administration and security forces as was granted by decree in 2010.
"This type of prospective immunity is most unusual, perhaps unique, and, we believe, undesirable. The only exception is that the new constitution is not required to give immunity for common crimes (such as murder and assault) committed after the date of issue of these Decrees.
"The Commission recognizes that immunity has been given in the past and that the immunity required in the new Constitution is similar to those immunities and it also understands that the issue of immunity must be considered in the process of transitioning to democracy.
"However, we are concerned that the people of Fiji have not been consulted in any way on this important matter.
"We believe that a better approach would be for the question of immunity to be part of the constitution-making process.
"If immunity was part of the process, it could be discussed through submissions to the Commission and debate in the Constituent Assembly. Then a solution could be reached that citizens believe would promote the transition to democracy and contribute to a sustained democracy as envisaged in the Preamble to the Decrees."
Ghai and his team have also noted the reality of how much freedom citizens really have, even with the promises of people being allowed to speak freely.
"...although the temporary suspension of the requirement of permits for meetings is an important step forward, we are concerned that the current atmosphere in Fiji is not conducive to an open process in which Fijians can debate their future properly.
"Controls over the media and the wide reaching powers of the security forces in this regard are particularly worrying, as is the fact that generally people have no redress for actions taken against them by the state because the right of access to the courts has been removed.
"An important part of the process for constitution making should be the bringing together of all the people of Fiji to discuss freely, and agree on, the future of their country.
"It should be an occasion for national reconciliation, acknowledging the violation of human rights and other abuses of power, and to commit the nation to a vision of Fiji based on democracy and respect for human rights, and a determination to overcome the divisions of the past."
The regime has tried to reject the concerns of the Commission, just as Bainimarama has this week tried to blame 'cowards' for interfering with the supposed good work of his government.
The truth is, as always, much simpler. Fiji citizens, like the Commission, would not fight something if it was genuine and to their benefit. That concerns continue to be raised, means there are doubts about motives and final outcomes. If the regime was less cowardly, it would accept this and quit manipulating the process.
Commission statement incorrect: Khaiyum
Constitution Commission statement