|Popular support: Qarase in Sydney.|
Fijians in California last week protested against Bainimarama, holding placards calling him a 'killer' and 'thug' while Qarase was warmly embraced by Sydney's Fiji community.
Bainimarama was in Santa Rosa for a private dinner when several dozen people, including children, protested against him as he arrived in a motorcade of black vehicles.
One of the reasons itaukei distrust Bainimarama is the ongoing lies over the supposed protection of their land. The regime led party, Fiji First, and the illegal attorney general, Aiyaz Sayed Khaiyum, who is also the party's general secretary, insists its Constitution makes land safe.
Qarase's party, SODELPA, says Khaiyum's claim has 'greater protection than before is a lie.'
SODELPA's general secretary, Pio Tabawailu, says: "Its protection has been weakened. In fact, there was no reference at all to native land in the first draft of their constitution. It was left out completely. This caused great fear and uncertainty among landowners.
"It was only when supporters of SODELPA began to speak out that Bainimarama-Khaiyum decided to include specific reference to native land in their constitution. Without the SODELPA protests they would likely have enacted their supreme law with no special reference to native land."
Tabaiwalu says SODELPA's view that Bainimarama and Khaiyum have seriously weakened native land ownership is shared by others, including legal analysts.
"In previous constitutions there were special entrenched
|Tabawailu: Land not safe.|
"To change these land laws required a two third vote in Parliament and a nine votes of the GCC nominees in the Senate. This was to provide extra safeguard in protecting these laws. Khaiyum and Bainimarama have scrapped this provision which means there just a need to have a simple majority in Parliament to change land laws.
"This is the crux of the issue which Khaiyum is avoiding. He is lying deliberately to the indigenous people by skirting around this missing “entrenched legislation” as contained in the 1997 Constitution.
"The people’s draft constitution by the Yash Ghai Commission, that was scrapped by the Bainimarama-Khaiyum regime, also included a listing of protected laws: iTaukei Lands Act (Cap 133), iTaukei Land Trust Act (Cap 134), Rotuma Lands Act (Cap 138), Banaban Lands Act (Cap 124) and Agricultural Landlord and Tenant Act (Cap 270)."
Tabaiwalu says these safeguards were thrown out by Bainimarama and Khaiyum, without explanation who then placed Fijian land ownership among a long list of provisions in the Bill of Rights.
"However section 6 of the Bill of Rights (5) (a) (b) (c) permits rights to be limited and therefore changed. At least 55 of the rights listed can be subject to limitations.
"Clause (c) of section 6 is particularly broad in its application. It allows parliament to pass “necessary” laws limiting rights and freedoms. This could obviously be applied to Fijian land. In our view there would be nothing to stop enactment of a change to Fijian land ownership provisions by a simple majority in Parliament. Any such changes could further weaken or undermine Fijian land ownership. Even provisions relating to compulsory acquisition of property might be changed by a new law.
"We note that the 1997 constitution also permits limitations of rights. But these have to be “reasonable and justifiable in a free and democratic society”. This important protective condition is missing completely from the Bainimarama-Khaiyum constitution."
Tabaiwalu says group rights are recognised as human rights but the regime Constitution fails to provide for it - just as the Land Use Decree and Land Bank violates landowner rights.
"The Decree gives huge powers to the prime minister to make decisions about Fijian land to be utilised under the Decree. The power conferred on the prime minister overrides all other laws, including the Native Land Trust Act and the Agricultural Landlord and Tenant Act.
"It is the first time that so much power over native land has been given to an individual.
"We are constantly told by Bainimarama-Khaiyum that everyone in Fiji is equal. This is not true. The Land Use Decree imposes a state of inequality on indigenous landowners whose land is used under the Decree.
"The Decree cannot be challenged in court which means the owners could not judicially question the validity or legality of a lease or any lease conditions or take any grievances to court.
"This discrimination against the landowners is itself a serious breach of landowner rights. It is also in breach of Section 26 of the regime’s constitution which states that every person is equal before the law and has the right to equal protection, treatment and benefit of the law.
"So in our view, the Decree makes the indigenous people second class citizens by denying them certain legal rights. Freehold landowners are not treated in this way. This discrimination must stop and all indigenous Fijians must exercise their right at the polls in September to protect the only thing they have control over."
Tabaiwalu says it is not evident how the consent procedures for depositing Fijian land in the Land Bank actually work.
"The Prime Minister can make regulations under the Decree - with no apparent provision for the landowners to have a say in this. Leases can be issued by the prime minister for up to 99 years. The prime minister also has the discretion to renew the lease as he wills at his or her own discretion.
"SODELPA will find out how many 99 year leases, and other leases, have been issued; to whom they have been issued and under what conditions. How would land be returned to the landowners after 99 years, if by then it includes a massive list of assets constructed on it? How would the landowners find the huge amounts of money to purchase such assets?"
Tabaiwalu says SODELPA will scrap the Land Use Decree and the Land Bank and return all leased land to the administration of the NLTB.
"Furthermore, by abolishing the GCC, Bainimarama took over the chairmanship of the TLTB. Previously it was the President who chaired the TLTB having being chosen by the GCC. This has given complete control of all indigenous Fijian land to Bainimarama.
"This is is what Khaiyum fails to tell the indigenous Fijians. He is treating them as ignorant natives but SODELPA will ensure that the truth is conveyed to every indigenous Fijian especially the youths whose future will be a precarious one.
"We will also ensure that the chair of the TLTB is chosen by the landowners in a consultative process with the government.
"Bainimarama and Sayed-Khaiyum regularly create the impression that the last elected government had a policy of regularly changing Fijian land to freehold and that this was a loss to the landowners. This is a misrepresentation. There was no such policy nor will there be."