16 Mar 2012

Call for open debate on Fiji constitution

9:51 am on 16 March 2012

The newly-appointed chairperson of Fiji's Constitution Commission Professor Yash Ghai says the Fiji regime should review all laws that restrict freedoms in Fiji to ensure frank discussions around the constitution.

The veteran constitution-maker's appointment has been generally welcomed, but regime critics say it's merely part of a process that's illegal and a charade.

Sally Round reports.


Professor Ghai has been appointed by the regime to oversee consultations and drafting of a new document to be signed off by the end of February next year.

The former UN Rapporteur on Human Rights in Cambodia and veteran of 15 constitutions says a good process requires the freedom for people to meet, discuss and lobby.

Yash Ghai says Fiji's laws should be reviewed and changed if necessary before discussions begin.

"Fiji had a good Bill of Rights in the 1997 constitution and I think laws should be restored to a state where they are compatible with these guarantees."

But Professor Ghai who is currently drafting constitutions for Libya and Somalia appears confident of Fiji's plan outlined by regime leader Commodore Frank Bainimarama last week.

One of the plan's harshest critics is former high ranking military officer Ratu Tevita Mara who fled Fiji last year.

He believes people in Fiji will boycott the process and has strong words for those taking part.

The 2009 High Court ruling had ruled the take-over in 2006 as illegal and the '97 constitution still in place, still legal. So anyone who's involved in drafting a new constitution now is in fact committing treason against the people of Fiji.

Professor Ghai is pragmatic.

To say that that constitution is in force and we don't need a new constitution is to turn a blind eye to realities. We have a situation where there has been military rule for a while and the only way it seemed to me to return to a democratic system is to engage the whole country in a process of dialogue, consultations, finding some consensus. There is no guarantee that if this process weren't to start that the old constitution would somehow in a magical moment spring to life.

The former insider Ratu Tevita says regime leader Commodore Frank Bainimarama was a champion of the 1997 document.

From my knowledge and being with the Military Council in 2006, he was opposed to anyone who wanted to abrogate the constitution and you should put that question to him. Why the change now?

Ratu Tevita questions the independence of the Constitution Commission, saying Yash Ghai was involved with a key regime member Aiyaz Sayed Khaiyum in the interim Attorney-General's student days.

But Professor Ghai has brushed off the criticism saying he's taught thousands over 50 years including Kenya's Attorney General and a former Chief Justice.

I was constantly criticising them in public for their lack of integrity, corruption so just because a person has been a student, it doesn't mean that I lose my sense of fairness and transparency and the other values that I have lived all my life by.

A leading civil society group in Fiji, the Citizens Constitutional Forum, also believes restrictive decrees should be lifted and it's CEO Akuila Yabaki has described the role of the military as the elephant in the room.

More needs to be done on that but I think we have to wait until we get into the democratic process to be able to talk openly about it. The problem with it is there's not much (in the way of) positive lessons to be learnt in the world in which we live. The buildup of militarism, the five members of the UN Security Council - they manufacture arms and they use our boys here to join their respective armies in peacekeeping. There are more lessons about don'ts than do's.

Professor Ghai is less circumspect over discussing the military's role.

Oh absolutely, absolutely it must be addressed. There's nothing in the terms of reference which requires the Commission or the country to maintain military rule. I am sure the issue of the role of the military will emerge and people who believe that the military should be responsible for defence of the country but not involved in politics will have every opportunity to argue for their case.

The Reverend Yabaki has suggested the United Nations could help by providing models for how small states can ensure the military is in the service of the people.

That drew a swift response from Fiji's land force commander Mosese Tikoitoga

Has New Zealand allowed the UN to come and determine what kind of military force it should have? What kind of armament it should have? What kind of equipment that it can hold? Has Australia or any other country for that matter asked the UN to come and determine the size of the military force that they have? That never happens.

Yash Ghai is confident the process will be open and transparent and that the regime will honour its commitments.

But already there are signs the stifling of critics' voices is set to continue.

On Wednesday police told the SDL party its permit to meet had been rejected.

The party of ousted prime Minister Laisenia Qarase wanted to discuss the SDL's submission on the constitution.

Australian Council of Trade Unions chief, Ged Kearney, says it just goes to show the government is not committed to a fully democratic process.

If they are going to exclude certain parties from being able to form opinions and have comment on the new constitution then it is certainly not a transparent and robust process.

Given Australian unions' hardline stance on Fiji and the ACTU's influence on new Australian foreign minister Bob Carr, there is unlikely to be an easing up of Australia-Fiji relations over regime promises on the new constitution.

The ultimate test over whether the regime is genuine could be whether Professor Yash Ghai stays the course.

In 2004 he stepped down as head of Kenya's Constitution Review Commission, frustrated at delays in enacting that country's constitution.