#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Draft 2012 Constitution: the pragmatic and the purist

Friday, December 28, 2012

Draft 2012 Constitution: the pragmatic and the purist

By Professor Wadan Narsey

The Fiji Constitution Commission has  on  its website a link  to  a  document  called  "Fiji Constitutional Process  (Constitution  Commission)  (Amendment  Decree) 2012"  which  would seem to be their  official Draft Constitution, but which  unfortunately cannot  be read or downloaded.

However,  Fiji's 2012 Draft Constitution (call it 2012 DC) is available thanks to the blogs along with an Explanatory  Report, prefaced by Professor Ghai, which contains extremely revealing background material which could not be put into the 2012 DC.  


Those with a purist commitment to lawfulness and constitutionality, will find some outcomes envisaged by the  2012 DC to be ethically and morally repugnant, especially the grant of immunity to those who implemented the 2006 coup, and those who supported the illegal Military Regimes thereafter.


But, at this historical point in time, the 2012 DC makes a   number of pragmatic recommendations.

First, the 2012 DC insists that elections must be held by September 2014.

Second, they propose an electoral system which will be a significant improvement, encouraging the  presence of small parties and progressive gender equality in Parliament (minor remaining weaknesses may be ironed out later).

Third, and most important, are the concrete "transition institutions"  which must be set up before the elections.

It is vital that Fiji civil society (including the political parties, religious organizations, business interests,  NGOs, and  professional  bodies),  fully understand and support  these  transition institutions, if  there is any hope at all for Fiji to be returned to parliamentary accountable government in 2014.

The last holds the promise of the restoration of basic human rights, including the right of legal redress, a return of investor confidence and healthy economic growth, if the downward spiral of increasing poverty is to be reversed.

But even that is not guaranteed at the moment.

The 2012 DC still has to pass through the Regime-appointed Constituent Assembly, and the Tribunal established by the Regime's Chief Justice.

Ominously, there are signs that the Military Regime and its supporters are not going to be satisfied with the rich cake of immunity offered by the 2012 DC and a graceful exit strategy, but may callously and shamelessly fight to retain the icing they have enjoyed for six years.

Fiji people cannot rely for any support from an international community (especially Australia, NZ, US and EU) who are clearly keen to normalize their diplomatic relations with Fiji- largely because of their geo-strategic interests in a Pacific where China and India have eclipsed them for the last six years.  The American Bar Association in particular, has been quietly influential in the constitution review process.

It's the Regime's own Commission
With the apparent disagreements between the Regime and the Yash Ghai Commission, it is easily forgotten that all five members of the YGC were selected by the Regime, with two international constitutional  experts (Yash Ghai and Christina Murray) and three known Regime supporters (Satendrra Nandan, Peni Moore and Taufa Vakatale).

It is a great credit to them all that they have produced a consensus Draft Constitution, and in particular suggest  that Nandan, Moore and Vakatale (contrary to the expectations of anti-Regime bloggers) have also served with integrity on the Commission.

Academics will  no doubt  have a field day examining the  extent  to  which the 2012  DC  is genuinely a "home grown document reflecting the views of the Fiji people" or largely reflect the views of an array of international and local expertise hoping to create an "ideal constitution" for Fiji.

Yes, the YGC has abided by all the constraints imposed by the Regime's Decrees, including the granting  of full amnesty from 2000 to 2014 for all supporters of the unlawful Bainimarama government.

But the Explanatory Report makes clear, (often conveyed as "people's views") that all of Fiji's military coups (1987, 2000 and 2006) have succeeded because of the willingness and selfishness not just of the RFMF to mounts coups, but because they have been actively supported by sections of the judiciary, major political parties, the Great Council of Chiefs and high chiefs, religious organizations and leaders, the business community,  and other social leaders.

The Explanatory Report also points out the great damage this last coup has done to the economy, peoples' standards of living, and the very fabric of Fiji society.

It seems clear that the future of Fiji will be largely decided by the same groups and the extent of their commitment and support for the transition arrangements being recommended by the 2012 DC.

This will become evident in the Constituent Assembly.

The transition arrangements

The YGC envisages that once the 2012 DC is "assented to" by the President, a "Transition Advisory Council" must be appointed to see Fiji through to elections.

They should comprise 2 persons nominated by Bainimarama (with 1 representing the RFMF), 1 by the Fiji Law Society, 1 by the three university Vice Chancellors in Fiji, 3 by civil society, the 3 Chairs  of the Interim Electoral Commission,  Ethics  and Integrity Commission,  and Judicial Services Commission, and  2 persons from the Caretaker Cabinet.

Second, once the elections are announced (at the latest by April 2014) the President must appoint a transitional "Caretaker Cabinet" (comprising former senior public officers) to take the country to the elections and the next parliamentary government.

Third, the elections are to be conducted by an Interim Electoral Commission (also clearly defined in the 2012 DC).

Fourth are the changes recommended to the Regime's Decrees to make them consistent with the provisions of the 2012 DC.

None of these transitional steps may be taken for granted.

Repeal of parts of Decrees

The Explanatory Report by Yash Ghai notes very critically "The government has operated under previous laws as modified and supplemented by Decrees passed by it. There are no fundamental values  and  principles  which  govern  the  contents  or  procedures  for  making  decrees.  The government is free to do what it likes. Several Decrees violate rights of the people. Some restrict access to courts..."

This is a sorry indictment of the Bainimarama Regime, despite all the grand claims of the Charter exercise and document, and the continuous barrage of propaganda from the Regime for six years.

The 2012 DC sets out to right some of the legal wrongs.

Important proposals are made through Article 187 (and Schedule 7) to repeal all or parts of many Decrees promulgated by the Military Regime over the last six years, which are inconsistent with the human rights provisions of the 2012 DC.

Fiji's slumbering Fiji Law Society might like to explain to the Fiji public the significance of the specific  changes  being proposed by the  2012  DC  to the following:  Regulation  of  National Spectrum  Decree  2009  (No.48/09);  Media  Industry  Development  Decree  2010  (No.29/10) Sections; Employment  Relations Promulgation 2007 (No. 36/07); Employment Relations (Am) Decree 2011 (No.21/11); Essential National Industries (Employment) Decree 2011 (No.35/11); Public Order Act (Cap.20) as amended by Public Order (Amendment) Decree 2012 (No.1/12); State Proceedings Act (Cap.24); Television Decree 1992 Section 4A  Television (Amendment) Decree 2012 (No.52/12).

The YGC had itself begun the task of reviewing all the decrees until they were stopped by the Military Regime. 


What of purist constitutionality?
The  Ghai  Explanatory  Report  declared  that  Fiji  needed  a  "new"  constitution  because  "the immediate cause is that there is currently no constitution."    ie implicitly accepting that the Bainimarama Regime had effectively abrogated the 1997 Constitution.


This runs completely counter to solid legal opinion, including that by the Regime's current Chief Justice (Anthony Gates), that no person (or a military coup) can lawfully abrogate a Constitution or revise it even  in the way that the 2012 DC is attempting. (Read this segment of my Final Submission to the YGC which also suggests how it is only the next elected Parliament that can grant immunity and make contentious changes to the Constitution). http://narseyonfiji.files.wordpress.com/2012/12/b-new-or-revised-constition-and-how-it-is-not-semantics.pdf http://narseyonfiji.files.wordpress.com/2012/12/b-new-or-revised-constition-and-how-it-is-not- HYPERLINK http://narseyonfiji.files.wordpress.com/2012/12/b-new-or-revised-constition-and-how-it-is-not-semantics.pdf semantics.pdf

The 2012 DC itself indirectly points to the treason committed by Bainimarama, the officers of the Fiji Military Forces, and all those who have participated in their government since 2009.

The  2012  DC  explicitly  states  (Clause  177)  that  the  Commander  of  the  RFMF  must  be accountable to the Minister of Defense in the elected government.   (Not so, said Commodore Bainimarama).

Secondly, under Article 174, Clause (4) "A member of any security service must not obey a manifestly  illegal order, and is justified in refusing to obey such an order." (Not so, said the officers of the RFMF for the last six years).

Under Clause (5) Neither the security services, nor any of their members, in the performance of their  functions,  may––  (a)  prejudice  a  political  party  interest  that  is  legitimate  under  the Constitution or any legislation; or (b) further any interest of any political party or candidate in a partisan manner".  (Not so, said the RFMF in 2006, and they continue to declare what political parties can or cannot do.)

Neither the 2012 DC nor the Explanatory Report ask why the immunity provisions have to be granted from 2000 and not just from 2006 when the Qarase Government was unlawfully deposed, nor from 2009 when Bainimarama formally abrogated the 1997 Constitution. (This segment from my earlier Final Submission to the YGC attempts to put together a still-sketchy picture. HYPERLINK http://narseyonfiji.files.wordpress.com/2012/12/g-who-is-responsible-for-the-coup-culture-and-how-eliminate-it.pdf http://narseyonfiji.files.wordpress.com/2012/12/g-who-is-responsible-for-the-coup-culture-and- HYPERLINK http://narseyonfiji.files.wordpress.com/2012/12/g-who-is-responsible-for-the-coup-culture-and-how-eliminate-it.pdf how-eliminate-it.pdf

All that persons being granted immunity have to do is "swear or solemnly affirm that " that they "renounce  any actions in my past that may have promoted, assisted or protected attempts to establish a government otherwise than in accordance with law."

There is no recommendation for a Truth, Reconciliation and Justice Commission to establish the truth behind the coups of 1987, 2000 and 2009; to know exactly what the 2012 DC is granting immunity for; and to bring real reconciliation to Fiji, that no piece of constitutional paper, can provide.

These are all the painful challenges that remain for the people of Fiji and any future elected Parliament, regardless of what happens to the 2012 Yash Ghai Draft Constitution.

43 comments:

Pacific in the Media said...

editor
Indians are up in arms right across India in protest at the brutal gang rape of a 23 year medical student on a bus in Delhi. After raping her the perpetrators threw her out of the bus. She is now fighting for her life and has been airlifted to Singapore for special medical treatment.The unprecedented angry protest over sexual violence and rape in India and the slack official response to it has left at least one policeman dead.The six "macho" men who raped the medical student must now be shitting in their pants with fright at the public anger their uncivilised behaviour has generated.
I quite like that thought.
Macho men shitting in their pants.
sincerely,
Rajend Naidu
sydney

tattifala said...

first things first. does the Draft constitution have a lawful legal foundation seeing as it has been commissioned by the usurpers - the very people who unlawfully abrogated the 1997 Constitution?

Anonymous said...

Rajesh, what's that got to do with the proposed Fiji constitution? Perhaps you should comment on the makeup of the Transitional Advisory Council, which incidentally is designed specifically for the pig Bocimarama and his gang of thieves.

Anonymous said...

The Ghai draft is quite a shallow, off-the-shelf document when you look at it closely, showing superficial understanding of Fiji's complex problems. There is no explanation anywhere why people should change their behavior. Tell a soldier on the street he should go back to the barracks, and he will ask, Why should I? There is superficial understanding of the concerns of the indigenous people. Who will pay for the National Peoples' Assembly? A high-sounding academic treatise, but flawed and provocative.

Anonymous said...

DR Proff Sri Yukt Satendra Pratap None-Done has goe laughing all the way to his Commonwealth Bank in Canberra.--he is now feeding birds with bread crumbs sitting on a bench with same old cap near lake Burley Griffen.From time to time he looks at his Aussie passport-kisses it-and puts it back in his shirt pocket.He thinks about his next short story-the tree destroyer Idiot.Maybe he can write about the goat that didnt get away in Meigunyah!

The Oracle said...

Wadan Narsey writes in a "cautiously optimistic" way about the Yash Ghai Commission's draft Constitution. However, the issue of retribution, immunity, reconciliation, political/military relationship etc should NOT be the CORNERSTONES of the Draft.
The fundamental "Constitutional pillar", so to speak, should be the issue which is lacking in all of Fiji's Constitutions apart from the original 1970 Fiji Constitution and that is a way to safeguard indigenous Fijian interests and aspirations without having to compromise the fundamentals of democracy.
The 1970 Constitution had its flaws but it was drafted by forward-thinking individuals who had the foresight to recognise that the embers of discord could one day burst into flames.
If our Constitution is able to find a way to re-assure the i-Taukei that their identity as a people; that the remaining land they have; that their value of things traditional - including their chiefs and vanua, will not be taken away from them then we will be on the path towards democratisation as we would all love to have it - the closest to equal citizenry that we can get. Unfortunately, the YGC Draft Constitution fails to recognise and adequately address this key pillar. Until that happens, everything else, in between, is merely academic - including the form of government; the role of the military; the independence of the Judiciary - which adjudicates on the basis that all laws apply equally to all citizens; the basic tenets of Human Rights etc. The YGC has left the people of Fiji the poorer through it's lack of courage to address the issue "head-on" and in response to the hundreds of submissions which, more often than not, had a common theme - "give the i-Taukei the assurances they need so that we eliminate for good the coup culture". If the YGC Draft Constitution had addressed this, the millions spent - albeit by foreign governments - would have been worth it. Unfortunately, all we have is a document which will only continue to encourage others to use i-Taukei "fears" to hold Fiji to ransom.
And the likely result will be major "legalese surgery" by Nazhat Shameem, Anthony Gates and Sayed Khaiyum which will, in the end, see Frank continue to reign supreme beyond 2014. The Yash Ghai team has given the illegal Bainimarama government and its military backers the excuse they need to continue to prolong our suffering!!!! Qorvis-paid Graham Davis can blog all he wants under the various non-de-plumes he has at his fingertips .. but it won't change a thing because WE HAVE MISSED A GOLDEN OPPORTUNITY TO MOVE FORWARD, UNITED FOR ONCE, AS A PROUD NATION.

Anonymous said...

?Yes, 'Sarka Kuto' Nandan is pleased with himself. He was Khaiyum's mole in the commission. Word is that ASK is none too happy with him for not standing up to Ghai. Nandan defended the coup vigorously, but Ghai report says that coups are illegal and there can be no justification for them in a democratic society. Double-faced Nandan kept quite. He is quietly greasing up to the various embassies here

Anonymous said...

Well, call me a "purist" if you like, but I believe in upholding the law and the constitution, full stop. A pack of foreign carpetbaggers and local opportunists handpicked by the traitor-in-chief had no legal standing to create a new constitution for us and still doesn't.

Anonymous said...

Bainivuaka wants amnesty to include the events of 2000 because he knows the evidence is in that he was the chief traitor who plotted the takeover of Parliament and that he ordered the murder of the CRW soldiers.

No amnesty for treason. No statute of limitations. No clemency.

Just a last cigarette and a blindfold.

Anonymous said...

Prof. Narsey seems to want to depict this as a "the Perfect being the enemy of the Good" kind of question, when it's really more like "Phony Baloney being the friend of the Evil". No "constitution" can serve as a true constitution unless it emanates from the governed themselves.

Anonymous said...

too much focus on system of govt and not enough on citizens equal rights it will be thrown out as rubbish for fiji values of the future

the draft is rubbish

tattifala said...

@ Anonymous 6.30 PM
thank you for providing an answer to my "first thing first"question. I too am a "purist" and I am very proud of the fact.
For me all else is either hypocrisy or bullshit!

Anonymous said...

COUP IS ILLEGAL= FACE JUSTICE.
THERE IS NO WORD AS EXCUSSED FROM JUSTICE FOR THIS SERIOUS OFFENCE.

luminary said...

Alas Prof Ghai! If only you had done some research or even got some sound advice to "culturally acclimatise"yourself before you took on the invidious task of constitution commission chair.You would have then gleaned that what you are experiencing right now would be quite predictable. You see the Fiji police force and Military mostly comprise of high school dropouts and are repositories for low intelligensia. I went to school with several of them. Fijians traditionally are also anglocentric in their attitude towards respect. I bet if you were of anglo saxon decent you would never have been subjected to such disrespect and humiliation. Bad mistake in appointing one of Indian extraction as chair in the first place seeing that historically Fijians hate the guts of true Indian acadamics like us. The sooner Fijians overcome this Kaivalagi superior/kaidia inferior (and paradoxically therefore that the Fijian is incompetent)the better and sooner will they become equipped to run the affairs of Viti, become empowered, and nurture and cultivate a truly economic, social, and cultural symbiotic relationship with the embattled, but resilient and valiant FBI. A happy siga ni sucu and yabaki vou and vakatawase kemuni na bloggers toucoko.

luminary said...

Alas Prof Ghai! If only you had done some research or even got some sound advice to "culturally acclimatise"yourself before you took on the invidious task of constitution commission chair.You would have then gleaned that what you are experiencing right now would be quite predictable. You see the Fiji police force and Military mostly comprise of high school dropouts and are repositories for low intelligensia. I went to school with several of them. Fijians traditionally are also anglocentric in their attitude towards respect. I bet if you were of anglo saxon decent you would never have been subjected to such disrespect and humiliation. Bad mistake in appointing one of Indian extraction as chair in the first place seeing that historically Fijians hate the guts of true Indian acadamics like us. The sooner Fijians overcome this Kaivalagi superior/kaidia inferior (and paradoxically therefore that the Fijian is incompetent)the better and sooner will they become equipped to run the affairs of Viti, become empowered, and nurture and cultivate a truly economic, social, and cultural symbiotic relationship with the embattled, but resilient and valiant FBI. A happy siga ni sucu and yabaki vou and vakatawase kemuni na bloggers toucoko.

Anonymous said...

Prof Onedone Nazi should stick to his number crunching and stay out of things he knows nothing about. Like the other poof Nonedone Sarka, they have lived in Fiji most of their lives but have never bothered to find out about the kaiviti's real fears and distrust of the kaiindia. Its because these two poofs, like the other kaidindia knowitalls consider themselves more superior intellects than the kaivitis.
And the iluminary, you are not very enligthened, you kaiindias have screwed the kaivitis and others in fiji too often for them to distrust yous...not fear. kaivitis trust that outsiders will treat them fairly. Like the oracle says, unless you fix the land and other kaiviti issues there will never be peace in paradise. Cash gai was wrong when he said that because the kaivitis are a majority they dont need protection. sounds like this acadamic theory not based on the real facts in fiji. hence the final result will be flawed.
I am now convinced that if you are to be a professor in fiji, you have to be an ostrich...so ondedone and nonedone stop babbling on like a knowingnone...aaree baiyas

tattifala said...

@ luminary
you are wrong in betting that if Prof Ghai was of anglo-saxon descent(rather then of Indian extraction) he would never have been subjected to such disrespect and humiliation. The thugs in power have no respect for anybody who they perceive as standing in their way. Recall what they did to the white newspaper editors, the white ambassadors and more recently the white journalist professor? They were subjected to abuse, humiliation and deported. The Military Thugs' respect is reserved for white falas who support their Thug Rule!

Observer said...

WHAT GENERAL ELECTIONS...UNFORTUNATELY THERE WILL BE NO ELECTIONS IN 2014. GOD'S WILL WILL PREVAIL, BE ASSURED OF THIS.

The Professor said...

Rather mundane, superficial, weak, repetitive and monotonus article by so-called professor narsey. As someone said, he is afraid to get to the root of the problem. he is afraid to look in the mirror as ask point blank why indigenous do not trust kai india and gujrati. Mr Perfect narsey with his Know it all attitude has very little understanding of Fiji despite being born here and spent a lifetime here. Or he is in denial, judging from his populist articles, which are surprisingly shallow and often lack economic rigour.

Twodone said...

you are right Professor...thats because professor onedone nazi is a paper and number cruncher...no substance, no original thought, only parrot mouth and copy cat

tattifala said...

People who have been running down Prof.warden Narsey obviously don't know the man. the professorship did not fall into narsey's lap from heaven like mana. the man a poor Gujerati ( a rare breed in Fiji) worked his way to the top of his trade with his brain ( something his detractors lack). Yes, I will concede his critical kurbaal had become somewhat blunted after he become a member of parliament and his wife was in the PSC. Things looked good for them. They were settled in the status quo. But to call him a Nazi is way out of line.
Warden Narsey had always stood for democracy, human rights, workers rights and a more egalitarian society. He has done heaps more to that end then most other political figures in fiji. Give credit where credit is due.

Anonymous said...

Prof Narsey is know to be a know it all big-mouth at USP with no time for other views, he looks afer number one first and foremost, he has never spent time mentoring fellow upcoming academics, he can't be bothered, his time is to precious although he likes to run them down, lecture and pontificate to them, so do not be fooled by his rhetoric, ask people who know him well, and they will tell you.

tattifala said...

Ok so with his big mouth at USP prof warden is something of an arsehole fala.
what does that make the VC at USP rajeshwar chandra who is quiet like a mouse but giving full support to the illegal military dictatorship?
and the vc is not the only one at usp sucking up to the regime.
what should we make of these academics?

rajend naidu said...

The news has just got worse - for the gang of six who gang raped the 23 year old medical student, beat her with an iron bar and threw her out of the bus.
The young women has died. The injuries she sustained in the barbaric sexual attack was just too much. The doctors at the Hospital in Singapore could not save her despite their best efforts. Now the perpetrators are finished. They abused their freedom and must now forfeit their right to live as a member of a civilised democratic society. They must rot in prison for the rest of their low lives .

Outside eyse said...

Awesome response - not! Why don't u take a moment to tell us all how a dictator with no legitimate claim can create a new constitution and pardon himself and all his criminal cousins - and this is ok because Hey! It's fijian and we don't understand? More grog please!?

Anonymous said...

tattifala you talk crap like your poof onedone nazi

Anonymous said...

The six rapist/murderers in India should hang for what they did, together with the rapist/murderers who control Fiji's illegal regime.

Anonymous said...

Anonymous 6:47, YOU'RE the nazi!

Anonymous said...

USP has absolute power, many times, many there wield it recklessly. Yet, it is a bastion for HR development for the Pacific. Alas, if only it can be steadfast to education and training.

tattifala said...

Let me put it another way. Between big mouthed Prof. warden narsey and clamped mouth regime lackey prof raajesh chandra and his deputy
I would rather warden any day.

Anonymous said...

Wadan Narsey is a bit of a prima donna. His edge is gone. His analyses seem increasingly shallow and his nostrums unrealistic. But at least he has the courage and integrity to speak out, unlike Fiji's media and most other Fijian academics.

Tatti Professor said...

True, Prof Narsey is getting cantankerous with old age not to mention repetitive. His articles have always lacked academic rigour, but they are useful in limited ways. Prof Narsey will make more sense if he is less emotional and more rationale. Less shouting more talking professor Ji!

Anonymous said...

Fight, criticize, comment. I only ask for everyone here to stop making this a kaiviti-kaidia debate. It's never suppose to be that.

SEMI MEO said...

@Anon December 30, 2012 4:57 PM...vinaka..dina mada!

Vinaka Prof Wadan Narsey

Anonymous said...

Hey the cyber idiot semi Meo is back wahahahaha.

tattifala said...

Semi Meo is back. he had just taken a tatti break. he had become too full of his own tatti!

SEMI MEO said...

@tattifala...of course as you alluded I become too "full ..own tatti"

You full of others tatti??...yuck!

Now, where were we....mmmm...now all blame to Aiyuz and his mentor Ghai...

Anonymous said...

semi like onedone nazi, full of crap..hehehe

Anonymous said...

Semi-literate is full of crap lol If one looks carefully at his photo, it appears his left hand is playing with his wrinkly nuts hehehehe

Anonymous said...

Anon 31, 436, he had to use this blog because the ones he started could not draw a single firefly. You and all else, stop making him seem the like an intelligent blogger that he is clearly not, stop the exchange of vulgarity and obscenity. Make 2013 informative, positive and challenging by being vigilant

SEMI MEO said...

@Sodomite of December 31, 2012 4:36 PM...mmm...so that was you perving ...may be you saw in the mirror your own "wrinkly nuts".

Goodness...some people just can not look above the belt!!

Anonymous said...

Semi, you seem to love the word sodomite....speaking from experience are you?

SEMI MEO said...

@sodomite of January 2, 2013 7:31 PM...

..gonei...your kind have drag all us to you sodomite ligo..if the label fits you then why blame us!