Foster tells Victor Lal his side of story: "Commander Frank Bainimarama was at this time the acting President, having only removed the Qarase government a week earlier. He asked me if I had thought about what Colonel Mara said and if I was prepared to assist him expose the corruption that was suffocating Fiji. We spoke for about 10 minutes. He was very polite and had a gentle manner on the telephone. He was prepared to listen and fully understood my fears for my safety and the safety of my family if I became involved and was exposed. It is hard to explain why, but something told me he was genuine. He was sincere in his desire to demonstrate to the world just how crooked the Qarase government had been. I knew it, he knew it, we just needed others to know it. I decided to take one step and see how it panned out. In may respects I was motivated by my own self interest as I wanted to clear my name, and I wanted to know why [Mohammad Salamat] Ali had lied about me altering my work permit. To do that I needed to speak to Jale Baba. The following day I arranged under the instructions and guidance of Fiji Military Intelligence to covertly video record Jale Baba who was still the high profile National Director and Campaign Manager of the deposed SDL party. Video camera hidden in cabinet at far left In my room at JJ's Hotel technicians from the military installed a video camera in a television cabinet, which they could monitor from the adjoining room. I invited Jale up to my room that evening to discuss the coup and get an update as to what was happening with Qarase and the ministers. Jale arrived at about 9 p.m. after visiting with several former ministers of the government and speaking on the telephone with deposed Prime Minister Qarase. We sat in front of the TV cabinet and I poured wine liberally and we ate leisurely from an elaborate cheese platter. Jale was very talkative and although exhausted from the events of the military takeover, seemed in no hurry to leave. In more stunning revelations than I could ever hope for, he firstly admits that I was not responsible for falsifying the work permit, which was the offence with which I had been charged and granted bail. Jale admitted his partner, Mohammad Salamat Ali, forged the criminal history without my knowledge and that Ali had told him to lie in a Police statement in an attempt to frame me. Jale would eventually sign an affidavit confirming that he lied and I was innocent of the allegations. (See copy of the alleged affidavit) He was not apologetic. He was not in the least bit sorry for his actions. The fact that I could have gone to jail meant nothing to him. It was just business. Dirty business. That's the way the government did things. You were either with them, or against them. When I chose not to pay the kickbacks, I was against them, and the assistance and guidance I gave them during the election meant nothing. "I could have gone to jail," I said. "So what, we all could go to jail. Qarase, me, Navi, the bloody cabinet, we all could go to jail," he replied. He then went on and said when speaking of the Qarase cabinet, "all of them are corrupt". When I asked about Qarase, he said, "He's the biggest crook of the lot." He explained that is why they were chosen to be ministers, because they were corrupt. They were selected solely for their ability to be dishonest. After all, Navi was the Chairman of the SDL Candidate Selection Committee. This was stunning evidence to obtain as this was the face of the government speaking, and it was all captured on video. He was not only Prime Minister Qarase's right hand man, but he was his official spokesman, and was the national director of the party and the campaign manager. Next to Navi, and the Attorney General Bale, no one else was more influential or a bigger insider. Later that evening Lieutenant Patti (Ereivati) and other military personnel sat in my room and watched the video be played back. It was dynamite. They knew that I was the key to getting all the evidence against Qarase and his cronies. The following morning I spoke again to the Commander on the telephone. He congratulated me on capturing Jale Baba on DVD and thanked me for being involved. I said that I was prepared to continue to assist him, however I was on bail to the hotel and couldn't leave the premises. If I was to try and covertly tape up the other members of the former Qarase government I needed to be able to move around and meet them in their own environment. He said to leave it to him and he would get back to me. That afternoon representatives of the military went and saw the Magistrate in chambers and advised him that they were going to take me into their custody. Operation Free Fiji was born and I was its main operative. That evening I was escorted on the three hour drive from Suva back to my home at Denarau, near Nadi, by a mini van with six police officers and two carloads of soldiers. I was told that I would have eight armed soldiers protecting me 24/7. Lieutenant Patti became my Team Leader in this covert operation and the liaison between the Commander and me and would stay by my side for the next four weeks. He positioned two heavily armed snipers outside my house day and night. I would be accompanied by soldiers every time I stepped outside the house. Once home I was able to telephone Navi and tell him that my lawyer had my bail varied to allow me to return to Denarau. He was delighted and we agreed to meet the next day for lunch. Hilton Hotel at Denarau We chose the Hilton Hotel at Denarau for our luncheon. Lieutenant Patti went and saw the manager of the hotel and arranged for his soldiers to dress in hotel security guard uniforms. This in itself posed problems. The security guards were mostly Indians, and were of a tall slim build. The Fijian soldiers were barrel chested with arms like coconut trunks. To see them try and squeeze into these tiny uniforms was one of the lighter moments of a very intense and stressful time. Navi and I sat at the top left hand table near the pool. Two soldiers dressed as civilians were at the table nearest to us. Four others were disguised as hotel security. Navi and I would spend the next five days together, having every lunch and dinner. I had a mini DVD camera sewn into a man handbag which I carried. Lieutenant Patti created a panic signal in the event that Navi twigged that I was carrying a video recorder and microphone. If I was in trouble I was to accidentally knock the wine bottle over and hit the floor. That would be the signal for the soldiers to swing into action and take Navi down. I almost trembled every time I poured the wine, fearing I would accidentally drop it and cause all hell to break loose. During those days we talked about everything. Navi is a massive drinker. Most probably an alcoholic. Lunch would turn into dinner and I would rarely get home before midnight. I would be up at 5 a.m. and start transcribing the tapes with two other military officers. At noon, I would meet Navi again and repeat the whole process. Navi confirmed in these covertly video recordings that Prime Minister Qarase was deeply dishonest and corrupt, as were all his ministers. The election in 2001 was rigged against Dr Baba's New Labour Unity Party because they knew that a coalition would be formed with the Labour party to create government. Dr Baba had won his seat in Suva, Navi told me, but they had fixed the result against him. Navi also confirmed that the 2006 elections were rigged with 10 seats targeted. On the video recording, I act surprised at such a crude attempt to rort the electoral system. "If I did it, I'd get 10 years prison," I said. "Why didn't anyone investigate it?" Navi replied: "Because they're all into it - all of them". I asked why the police didn't stop it. He replied it was the police who did it for them. He also confirmed that Qarase had millions of dollars stashed in Australia and New Zealand bank accounts and with the Habib Bank in Pakistan. His accusations of corruption included ministers from the Methodist church and the Great Council of Chiefs as well as virtually every minister in Qarase's government. He explained that is why they were chosen by him in his capacity of chairman of the SDL candidate selection committee in the first place, because they were all corruptible. Navi was dismissive of Qarase's ministers, as demonstrated by this extract from one transcript. FOSTER Are there any of the ministers, if we put a company together with you involved, are there any one of them we can actually bring on board to give us credibility? NAISORO I have more credibility than the whole bunch of them together. I never went through the same thing. These people are all unemployable. FOSTER You think they are all finished? NAISORO Finished. When I asked if he (Naisoro) thought any of the deposed ministers were going to get into another government, he said: "I wouldn't use them, they are idiots, they are broke." FOSTER Why? NAISORO They are all broke, they will be headaches, they are imbeciles. FOSTER So why did you make them ministers if they are imbeciles? NAISORO Because they are imbeciles and you can control them. FOSTER So you can control them so you make them ministers? NAISORO Yes. FOSTER Why? NAISORO Because you can control them. Most interestingly, Navi said the coup by the Commander was the best thing that could happen to Fiji. I asked why, and he explained, "He's an honest guy. Most men are too stupid to be corrupt, he's just too honest. He'll be good for Fiji, you need a cyclone to come along every so often and clear away the rubbish. This is it, cyclone Frank," he laughed.

Peter Foster claiming to be in Bainimarama's Fiji What did Colonel Ului Mara say to Peter Foster? JJ Hotel: Fiji military technicians installed video camera in sting operation on Bainimarama's direction Jale Baba and Ali - heavily implicated by Foster Hilton Hotel Denarau Military's covert recording showing Navitalai Naisoro allegedly boasting about how they rigged the election. Peter Foster is audible. Speaking of Qarase and the government, Navi said, "They went too far. Too greedy. Didn't care about the people. They stopped listening to what I was trying to tell them, they forgot who put them there. " This was a staggering admission by a man who had been the power behind the throne for more than 20 years. Navi knew when the game was almost up. After a few days Lieutenant Patti and I flew to Suva to meet the Commander to discuss face to face what I had obtained. We arrived at his home about 2 p.m., just as five 4WD vehicles full of heavily armed soldiers pulled up. The commander was buried amongst them. He had travelled by road back from Nadi to Suva, having met his daughter at the airport after she flew in from New Zealand for Christmas. I counted more than 20 armed soldiers around him. The Commander guided me into a very pleasant room which may have been a breakfast room. To my surprise, we were alone. No bodyguards followed us. It was just the commander and me sitting on a lounge chatting like old friends. I had been told he had allocated 15 minutes for our meeting. We would talk for closer to 45 minutes. The Commander was the same, more of a kindly grandfather than a military man to be feared. He was keen to listen. I told him of what I had obtained from Navi and gave him a copy of the DVD and the transcript. I said to him, "You were right all along. The world needs to know the truth. You have to get the message out so CNN, BBC, ABC, people all around the world know what you did was for the right reasons, that this was the coup Fiji needed to have." The Commander asked me to suggest how we should release the information to the media. I told him that I had spoken to my friend, Matt Condon at the Brisbane Courier-Mail newspaper and he proposed that it should be released over several days, not all at once. I said I should first go and see more former ministers, and if possible, Qarase himself. Then once I had covertly taped everyone possible, then he could release it. We agreed that New Years Day would be best. The Commander said he had viewed the Jale Baba DVD recording which confirmed what I had stated to Police, that I was not guilty of falsifying my work permit or and that he I had been set - up by Mohammad Salamat Ali. The Commander said that the military appointed Police Commissioner had agreed to ask the DPP for a nollie prosequi to be entered into, which effectively means I had no case to answer and the charges against me are withdrawn. This never happened despite his promise. This is what I want resolved now." Fijileaks Editor: We could not get comments from Jale Baba and others mentioned in Foster's account

Regime turncoat Jale Baba "lied" to police about Foster and later retracted his statement

Notorious conman Peter Foster arrives in Fiji on false passport after going on the run from jail term - seeking protection visa from military dictator Frank Bainimarama Peter Foster, 51, broke an order not to be involved in the slimming industry He was jailed for three years in his absence after claiming he had date wrong Runaway Foster admits travelling to Fiji in disguise using false passport Former 'friend' of Tupeni Baba seeking protection in the Pacific Island

BABA raises hand to say he is ready to lead SODELPA. Peter Foster said he supported Baba in 2001 allegedly to a tune of $1million because he saw him as "Nelson Mandela" of South Pacific

Asylum-seeker in Fiji? NOTORIOUS fugitive conman Peter Foster, sentenced last week to three years' jail for contempt of court, has fled Australia. In an audacious bid for freedom, Foster, 51, disguised and travelling on a false passport, arrived early on Saturday in Fiji, where he will seek a protection visa. In an exclusive interview with The Sunday Mail, Foster refused to reveal how he made it out of the country. He said his escape had left him exhausted and "sick to the stomach". "There is a sense of exhilaration," Foster said. "But I've left a beautiful home and a beautiful family now. I'm a stranger again. It's hard to celebrate. I know I should be happy but I'm not. I just feel incredible sadness." Last Thursday Justice Logan in the Brisbane District Court sentenced Foster to three years' jail on two charges of contempt of court relating to his involvement in the scam diet spray Sensaslim. Foster had been on the run since September 27 after Justice Logan found the self-proclaimed "international man of mischief" guilty of contempt. Peter Foster said he had been planning his escape for six months. Peter Foster said he had been planning his escape for six months. Foster vowed to appear in court for sentencing last Thursday after he had put plans in place for the care of his elderly, ailing mother Louise should he be sent to prison. In the end, Foster failed to show, and was sentenced to three years' jail in absentia. Justice Logan said if Foster's mother died while he was incarcerated, he should be permitted to attend her funeral. Foster indicated on Saturday that he had been planning a possible escape for six months. Justice Logan's decision on Foster and the ACCC case against him took 12 months. "If the judge had given me three months, which in itself is severe for a contempt charge, I probably would have served it," Foster said. "There isn't a lawyer you could ring in Brisbane who wouldn't say the sentence was savage and wouldn't stand up on appeal. "This is not about avoiding jail. This is bigger than me. It's about my mother. She will not spend the twilight days of her life in a nursing home. She will spend it being cared for by me and she will spend it with a cool sea breeze in her hair, in the shade of a coconut palm. Her therapy will be floating in a blue lagoon. I just know this place will be my mother's fountain of youth. This whole thing was a malicious prosecution because it was Peter Foster. "The steps I put in place to leave were always a 'in case of emergency, break glass' situation. As it was this judge broke the glass for me when he handed down probably the highest sentence for contempt ever in this country and for one of the most insignificant contempts ever. "As far as I'm concerned, Justice Logan can shove it up his jacksie." Legal sources said Saturday Foster's sudden flight may have been permitted by a legal loophole left by court processes. Justice Logan made his oral rulings late on Thursday which meant the formal orders and judgments may not have been written, signed and filed until either Friday or even Monday. Sources said the documents had not been filed by Friday afternoon. This left a minimum 24-hour window whereby there was no formal arrest warrant issued against Foster, given the warrant for his arrest stemming from his non-appearance at Justice Logan's judgment hearing in September had expired. Foster is no stranger to Fiji. He spent the formative years of his childhood in the country and was prepared to settle there for good less than a decade ago when he was arrested and charged with money laundering and deported back to Australia. Prior to that arrest, he had plans for property development and even toyed with the idea of building a luxury gated resort. He was living at the Sheraton Fiji with his mother in a poolside apartment. During that time he also became heavily involved in Fijian politics. Foster said Saturrday he was being looked after by friends. He gave no details of his whereabouts only to say he was "safe" and "in the country", away from the tourist hotspots of Suva and Nadi. He hoped to be reunited with his mother soon. He said he had not slept for almost 48 hours and could not think straight. He did, however, have enough energy to condemn those he considered his persecutors. Foster said he was outraged not just at his sentence but the "insensitivity" of Justice Logan in mentioning that Foster could attend his mother's funeral if he was in prison.

November 2006: Conman Foster nabbed by Fiji Police Family ties: Foster has previously told the court in a letter that he would give himself up once he knew that his mother, Lou Foster, could be cared for if he was in prison. The pair are pictured together with Fijian police officers in 2006 Last Thursday Justice Logan in the Brisbane District Court sentenced Foster to three years' jail on two charges of contempt of court relating to his involvement in the scam diet spray Sensaslim. Peter Foster said he had been planning his escape for six months. Birds of Feather On The Run from Law "And then we have a chap called Frank Bainimarama who's come along and I believe for all the right reasons has removed a very corrupt, very dangerous government." - Peter Foster, 2009 Foster said he hoped to have an audience this week with Frank Bainimarama to sort out an arrangement for permanent asylum. "I won't discuss with you how I made it here. I have to get a few things settled … I did disguise myself to a certain degree but that's all I'm prepared to say. Fiji is my version of Ronnie Biggs' Brazil." "If that doesn't illustrate this man's complete lack of compassion or insensitivity and his absence of humanity to believe that being able to attend a mother's funeral as opposed to being able to attend to her on a daily basis is a compromise, puts into question in my mind his mental capacity to judge anybody," Foster said. "Is it any wonder that I decided enough is enough? "I won't discuss with you how I made it here. I have to get a few things settled … I did disguise myself to a certain degree but that's all I'm prepared to say. Fiji is my version of Ronnie Biggs' Brazil." Foster said he hoped to have an audience this week meet with Fiji leader Commodore Frank Bainimarama to sort out an arrangement for permanent asylum. Foster's disappearing act is set to embarrass both Federal and State authorities who were charged with his capture. His latest hijinks add yet another chapter to a life that now, more than ever, resembles the script of a Hollywood film. - The Sunday Mail, Australia

The Conman’s August Curse
"The convicted fraudster Peter Clarence Foster is not someone who inspires sympathy in Australia. It must be a refreshing change for Foster that, for once, he has found ‘FRIENDS’ in the aspiring Prime Minister Tupeni Baba and his colleagues in the New Labour Unity Party. What unites the professional con artist and his politician friends? His cavalier statement sums up his irrepressibility: ‘You give me a bucket of mud and I’d sell it.’ We hope and pray that he will not be delegated to ‘sell’ Fiji to tourists and investors around the world. Which leaves the question in the air: is August the curse for the conman? He fled from a British prison in August 1996. He was ordered to be extradited to Great Britain by the Australian Federal High Court on 3 August 2000. A year later, in the month of August, he was exposed as one of the financial backers of the New Labour Unity Party and its leader Tupeni Baba. The New Labour Party should seriously consult their political astrologers before the August election to exorcise the conman’s August curse.  And Sheraton Hotel should ensure to protect its own financial purse. It is, after all, the month of August in Fiji. "
VICTOR LAL, Fiji Times, 2001       

"In our case it was purely a civil society body. They can have it. They don’t need to have it. Just like any other group can form an association. And that provision about the Council of Chiefs appears in the chapter which is called clearly ‘Civil Society’. Because they want civil society to play a role in public affairs. That’s what democracy is about. And it was clearly a misrepresentation. They must know that the Council had none of the functions which were vested in it under previous constitutions. It’s not a public authority, it’s not mandatory, it has no jurisdiction. And to say that, ‘Oh, we have revived this and so on.’ Well it’s unfair."

Sitting targets: They can become "foreigners"" in their own land

Fijileaks publishes the unedited full version of the interview:

Sean Dorney & Yash Ghai

DORNEY: Yash Ghai, welcome to the program.

GHAI: Thanks very much.

DORNEY: Although it ended rather badly you must have been fairly pleased with the public reaction that you got to your Commission’s work in Fiji?

GHAI: Yes indeed. We were able to engage a very large proportion of the population in the process which meant basically they made presentations to us. But they also made an attempt to study the background to the process and the process itself. And we got a wide variety of views from the people which we tried as best as we could to reflect in the Draft Constitution we prepared.

DORNEY: It must have been a very disappointing end to it all then?

GHAI: Well, yes it is. But it’s the hazard of the modern constitution maker. This is not the only country where my draft has not been adopted. But in two countries at least – including my own Kenya – after much turmoil and much resistance by the establishment my draft was approved and almost forced on the Government by the international community. (Chuckles). So it’s not the end of the matter.

DORNEY: How much of the Draft Constitution do you think has finally made it into the one that they’ve brought down?

GHAI: Well, there’s a fair bit of it, you know, even the exact language. But it is cast in a broad framework where the true significance of what they have borrowed is not captured. For example, they have taken a fair bit from our Bill of Rights. But they have an over-arching sort of provision whereby it’d be very easy for Parliament to disregard a human right. Whereas in our case there was an article dealing with limitations and it makes it very hard for Parliament or the Government to derogate from a Right. They don’t have that protection. So, having copied chunks from us – and our Bill of Rights had been very warmly welcomed by many groups – they neglected those provisions because at any time they can be disregarded.

DORNEY: Yes, there seemed to be a very easy State of Emergency sort of powers ...

GHAI: Yes.

DORNEY: ... that obliterate a lot of those rights?

GHAI: Yes indeed. And the whole scheme of a Bill of Rights can come to nought if they declare an Emergency. And there are no safeguards that we had built into, into the scheme for declaring an Emergency – the role of the judiciary, good reason - so, so now they have a carte blanche basically to, to desupply or set aside the whole Bill of Rights.

DORNEY: One of the criticisms that I’ve heard of their Constitution is that there is a real concentration of power ...

GHAI: Yes.

DORNEY: ... in the hands of the Prime Minister and the Attorney General. Is that your reading of it?

GHAI: Oh, absolutely. Absolutely. In relation to the public service, in relation to Parliament, in relation to the judiciary the PM is, is sort of supreme we might say. On the judiciary, on the public Judicial Service Commission, on several other provisions the Prime Minister has only to consult the Attorney General. And then they can make a large number of decisions affecting a large number of people. And if this pair continue into the new, post new constitution era nothing is going to change. It seems like that.

DORNEY: There is also great concern about the independence of the judiciary?

GHAI: Yes.

DORNEY: If that right?

GHAI: Oh, I think so. The Chief Justice and the President of the Court of Appeal are directly appointed by the President, ah, by the Prime Minister in consultation with the Chief Justice, ah, with the Attorney General. And then the Judicial Services Commission which then makes decisions on other judicial appointments is appointed by the Prime Minister after consultation with the Attorney General. So this way they have really controlled ever, every avenue to appointment and so on. And the Judicial Service Commission which does have some role in the appointment of judges other than the two top, as well as their removal, are completely under the control of the Attorney General. No one can be appointed to the Judicial Service Commission except with the permission to the Attorney General. And he himself appoints two or three members directly.  

DORNEY: What about the election? Do provisions for the election seem to be all right?

GHAI: No, not really. One of the, what they called, non negotiable principles that must be reflected in the constitution talks of free and fair elections using the principle of proportionality – different from first past the post. Well, they have done that. They have completely ignored the provisions that the Commission made and we gave a lot of thought to it. We gave one of the world’s leading experts from Norway come to spend ten days with us helping think through the proportionality systems. They have completely disregarded that. I don’t think they understood those. And now they have made the entire country one constituency. And they have also said for a party to be, for its votes to be taken into account they must have secured five percent of the vote. Well, that’s a very high percentage in a country which is small and there are minorities. So, that, you know, this may have the effect, which would be not a bad thing, of encouraging the larger parties. But it does mean minorities are not in a position to negotiate. It will work against women because of another principle which is called the Open List System which means that the party will have a list of its candidates and if the party gets 30 percent they get one third of the list. But in an Open System is one where you can cross out the ordering of the party and change the order – which is a good thing, it gives people, the voters the power not to have to stuck to the list drawn by the party. But it also means that the ballot paper could be very long, huge! And how are they going to? I mean, somebody was working out the other day it will take about 15 minutes for each candidate, I mean each voter (laughs). And then, and then they can add other names too. They can put somebody down there who is not even on the list. Not only can they reorder the list but they can bring a new name and, ah, only one or two countries in the world have that and I’ve seen their ballot papers. I mean they are so – they’re formidable! (Laughs) And then, so, I don’t think it’s going to work! I know that people in Fiji are used to quite complex electoral systems but this one is going to be very hard to, to, to cope with for most people. So I think there are quite a number of problems with this electoral system.

DORNEY: One of the things that you suggested, I believe, was that there should be a Constituent Assembly to have a look at the Draft Constitution and approve it ...

GHAI: Yes.

DORNEY: ... Commodore Bainimarama did away with that?

GHAI: Yes he did away with that. It was in the Decree which dealt with the process and the, of making it, approving it, the voting system, eligibility to be on the Constituent Assembly and so on. And he just disregarded it. He said, ‘No! I’m not going to have this body!’ which would have represented women, would have represented minorities, churches, I mean a whole list of groups, business community, workers. He took all that away and, and, and said, ‘The whole country is the Constituent Assembly!’ which means there is no Constituent Assembly. And that, I think, was a great betrayal of the people because when the process started it was, it was stated in the Decree, that there would be a Constituent Assembly which would consider our Draft and make the final decisions. Well, now, the two of them have made the final decisions. This is no way to make a constitution pretending to be a democratic, participatory process.

DORNEY: Your recommendation that the Great Council of Chiefs be re-established as basically a Non Government Organisation ...

GHAI: Yes.

DORNEY: ... has been criticised as though you were trying to re-establish it in its previous ...

GHAI: (Laughs)

DORNEY: Did that annoy you, the fact that ...

GHAI: Yeah.

DORNEY: ... the criticism that came of that.

GHAI: Oh, yes. I was very upset because our provision was very clear. We were not resuscitating the Council of Chiefs which existed in previous constitutions where they were very much part of the structure of the State and appointed the President and had other functions. In our case it was purely a civil society body. They can have it. They don’t need to have it. Just like any other group can form an association. And that provision about the Council of Chiefs appears in the chapter which is called clearly ‘Civil Society’. Because they want civil society to play a role in public affairs. That’s what democracy is about. And it was clearly a misrepresentation. They must know that the Council had none of the functions which were vested in it under previous constitutions. It’s not a public authority, it’s not mandatory, it has no jurisdiction. And to say that, ‘Oh, we have revived this and so on.’ Well it’s unfair. And also for, for the record I can say that a very, very large number of people who spoke to us did say that they feel there should be some such body. Even among the non-indigenous people there were groups saying, ‘We think, we respect chiefs, they have played a positive role often in the community, broader community.’ And so we felt so many people had asked for it and we were committed to reflecting people’s views. You know, we had to use our professional judgement. This is why we didn’t put it under the ‘Structure of Government’ but just ‘Civil Society’.

DORNEY: It’s also going to be an exceptionally difficult constitution to change isn’t it?

GHAI: Yes. Yes, very, very difficult. There are two stages. One takes place within Parliament where I think it’s a 75 percent vote which is hard to muster in a parliamentary system. And the other one is that it goes to the people in a referendum where it’s 70, again 75 percent. Also at least half the population, or the voters, have to participate. Now in many, many countries a rule like that means that there is no referendum. People, often, people don’t show up so you don’t get 50 percent to come to the polls. And in this case there’s a double full problem. And, I suppose, the purpose is they don’t want change. They think they have fixed it which suits them. And, as you know, there is also a provision that all the, all the older Decrees which they’ve made over the seven years - and they’ll make more until elections – are supreme over the Constitution!

DORNEY: They can’t be challenged?

GHAI: They can’t be challenged. And that affects elections, that affects so many things – human rights included – and therefore there are much fewer controls over the government than would appear if you look only at the Constitution. But if you look at the Decrees you will find that there are hardly any controls on them. They can do what they want to.  And they’re very explicit that they want the Decrees to continue and cannot be challenged. Whereas we had suggested that every Decree should be reviewed for consistency with the Constitution and struck out if – and we identified about 15 Decrees which should immediately come to an end because they are so, so objectionable that they shouldn’t last a day longer once the Constitution came into effect. They ignored all that. So an ordinary reader will not really get a sense of how really terrible this Constitution is! Because it’s deliberate to keep many of the features of the old military system including a provision which make the military the supreme guardian of the people and of democracy. So I’m very unhappy with this government Bill, ah, Government Constitution.

DORNEY: Is the Media Decree one of those that you ...

GHAI: Yes.

DORNEY: ... suggested should be done away with.

GHAI: Yes the Media Decree was very much in the forefront. Decrees about trade unions is another. And many rights, democratic rights, rights of speech, of gatherings, of associations are all restricted by these Decrees. And even to meet – this was lifted, this rule for a short while, I insisted on it so people would come and talk to us – that has, that will continue. It means that if more than five or six people are going to get together even for a social occasion they need a permit from the police. Things like that! And those will remain regardless of the Bill of Rights and the Constitution.

DORNEY: Your Draft Constitution did propose some Immunity provisions, I think, didn’t it.

GHAI: Yeah.

DORNEY: But does this one go much, much further?

GHAI: Oh, yes. It goes much further in two or three respects. One, in the breadth of immunities given. You can see for what we might call treason, for overthrowing a Constitution, yeah, okay, no military will leave power without such a guarantee. But it covers all kinds of ordinary events which are not even, which are to do with personal relationships, civil contract kind of thing, are protected. A whole range. It’s astounding. And, secondly, this immunity will apply not only to acts which are performed up to the time that the Constitution is enacted but will continue into the future until at least after the next election. So they have a carte blanche. You know it’s one thing to say, ‘You did that. It was necessary.’ But now there can’t be any necessity for the range of acts for which they have secured immunity. And I was opposed from the very beginning. And I was told by the Attorney General and by the Prime Minister that they drafted the language of the immunity and if this was not there then you could be sure there would be no new constitution. I was trying to negotiate that and we started the process. Then he came with this statement. So we didn’t have any choice. But what we did do in responding to what people told us – our immunity, the immunity we gave, requires a prior oath by the people who seek its benefit to apologise for what they did, to say they would never, ever again do things like this, only then does the immunity come. I mean this was kind of, people were saying, ‘We are realistic. We don’t expect them to leave without some immunity. One, it was too broad. And, secondly, there was no contrition on their part. They are not saying, ‘We are sorry. It was not a good thing to do.’ And in a kind of way asking for forgiveness. And many, many people told us that, ‘If they apologise, if they show that they are sorry and acknowledge that they have broken somebody’s sacred rules, we will of course give them immunity.’ But they wanted some, some recognition on the part of these people that they did something wrong and they would never, ever again do something like that. Now it’s symbolic. It would have been easy for them to say that and get immunity. So that upset them. So at least we felt that even though we were forced into that immunity we did build in this rider which infuriated them as you can imagine.    

DORNEY: Well, Commodore Bainimarama doesn’t think he’s done anything wrong ...

GHAI: (Laughs)

DORNEY: ... in fact, he thinks he’s done everything right ...

GHAI: (Chuckles)

DORNEY: ... and that this is a great democratic constitution.

GHAI: (Laughs)

DORNEY: What do you think?

GHAI: Um, well, of course he’s wrong. (Laughs) And I think most dictators have a great capacity for self deception and he may be suffering from that or he’s very astute. I doubt if he has read the Constitution. He just repeats what his Attorney General tells him to say. And those are his words. He has made various statements about our Constitution which are inaccurate in his criticism. He has said many things in praise of their Constitution which are inaccurate. Talk about safe-guarding land, customary land! If you read the Constitution very carefully there is no safeguard! He didn’t have it in his first draft but he realised that people, a lot of indigenous people liked our draft because it protected more explicitly than any other previous document. Again, if we had time I could give you the whole history of how we reached that conclusion. Um, but then he pretends we didn’t do anything about indigenous rights but he had done that. Complete – the contrary is the case. Our’s was secured, safe-guarded. We discussed it with the leaders, we discussed it with the Land Board – the draft - and they were happy with it. And they were protected. But his thing! It’s sleight of hand. One article does indeed protect that. If you look at other articles they give the Government power to change that. So there is no constitutional security for indigenous owners, communities over their land.

DORNEY: Not a great Constitution for Fiji then?

GHAI: No, I’m afraid not. They deserve much better. I hope they will get that in due course.

DORNEY: Yash Ghai, thank you very much for speaking to us.
GHAI: Thank you.

Cartoon source: Truth For Fiji website

Ghai says clauses on immunity were included in his Draft Constitution because of pressure from Aiyaz Khaiyum and Frank Bainimarama