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Jioji Kotobalavu grilled by Bose Ni Momo Trust meeting participants in Lautoka: 'You said indigenous rights protection in 2013 Constitution best ever compared to 1970,1997 Constitutions'; Explain to us what you mean!

11/9/2015

11 Comments

 
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QUESTION

You said in your presentation to the Bose Ni Momo Trust that the legal protection of indigenous iTaukei and Rotuman rights under the 2013 Constitution is the best ever when compared to Fiji’s earlier Constitutions of 1970 and 1997 and the protection of indigenous peoples in other countries. However, why is it that many iTaukei are still confused or unsure about the security of their community?

ANSWER


I think many are confused by the mixed messages they are getting from the Government.

On the one hand, they are being told that their collective rights to their customary lands and resources, their right to administer their communities through their Provincial and Tikina Councils, and their right to safeguard and revitalize their languages, culture and customs, are all securely protected under the 2013 Constitution. But then they are also being reminded almost every day that the same Constitution does not permit the grant of special treatment to any individual or community on the grounds of ethnicity, culture or religion. The foundational pillar of all policies of the current Government is that as individual persons and common citizens of Fiji, we are all equal in our fundamental human rights and freedoms. As such, any public policy such as government scholarships or low-income housing that is based on ethnicity, religion or gender, would be inconsistent with these basic constitutional rights and could therefore be declared by the courts as invalid and unconstitutional.

I believe the challenge here is for Government to re-look at its own current strict and narrow interpretation of the term “individual equality”.

In the realities of life, specific circumstances may call for community or group specific initiatives or programmes to promote equal enjoyment of rights and opportunities. This is equality in its substantive and qualitative meaning. This was defined in a famous dissenting opinion by Judge Tanaka in the International Court of Justice advisory opinion in the South-West Africa cases (1966) as follows:

“The principle of equality before the law does not mean the absolute equality, namely, the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely, the principle to treat equally what are equal and unequally what are unequal…To treat unequal matters differently according to their inequality is not only permitted but required”.

New Zealand’s Bill of Rights Act 1990, for example, states under section 19(2):

“Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of colour, race, ethnic or natural origins…do not constitute discrimination”.

Fiji is a State party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 2(2) expressly requires that:

“States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms…”.

The current approach of enforcing equality in its strict formal and absolute mathematical sense can only lead to suspicion that good faith and altruism are absent and there are underlying sinister motives.

Read
Kotobalavu's full text below: BOSE NI MOMO TRUST BA PROVINCE, At Lautoka, Thursday, 10th September, 2015, ADDRESS BY JIOJI KOTOBALAVU, 2013 CONSTITUTION PROVIDES BEST EVER PROTECTION OF ITAUKEI AND ROTUMAN CUSTOMARY RIGHTS

Read Full Speech
11 Comments
Equals at Last
11/9/2015 10:00:16 am

The current approach to equality means some are more equal than equal. You are equal excellence is you are Bainimarama family or Khaiyum family. You are approaching equality if you are a FijiTheft Minister family or party supporter family.

And the rest of us are Fijian equals.

Reply
Surprise
11/9/2015 10:08:13 am

What is this nutter talking about - he should join the Bainimarama government if he thinks the 2013 Constitution is the best.

Was he consulted, if so, was his ideas taken on board.

Or is he another Fijian JUDAS now inching closer to Bainimarama and Khaiyum.

Why are native Fijians giving this man the stage to pout support for the impsoed and fraud 2013 Constitution on us?

Reply
Judas
11/9/2015 10:53:43 am

Read between the lines...its a bloody good analysis and i taukeis take note

Reply
Fiji First Party
11/9/2015 11:14:30 am

Only the complex necessitates ‘interpretations and re-interpretations’.

The simple, the living, the understood and the LOVED is the Peoples’ 1997 Constitution of Fiji.

The WRONGS with the present Pretender Constitution are many but mainly;-
1) It is IMPOSED;
2) It does not represent the ‘will’ of the People of Fiji;
3) And therefore Khaiyum’s 2013 Constitution of Fiji is a FRAUD on the People of Fiji.

The focus is just that -FRAUD– all other discourse on guarantees, special rights or insecurities (good or bad of it) are just waste of good time, diversions into irrelevance and also unconstitutional.

Reply
Politically Legalised by I-Taukei!
12/9/2015 06:43:12 am

The unconstitutional constitution has been constitutionalised by 90+ % voter turn out and since SODELPA and rest of the parties failed to challenge its legality in the results as well as sworn to the constitution, there is no parliament in Fiji that has any legal basis to defy the 2013 constitution.

They deserve each other.....as they all defied 1997 Constitution in 2006. Cheaters got cheated....

Reply
Tomasi
12/9/2015 05:44:52 am

I agree with some comments made above, which basically focus on the author and political commentator, JKotobalevu, his analysis and the on the legality of the Khaiyum 2013 Constitution. May I add to these comments in a similar manner.

1. Joji Kotobalavu is a man of considerable knowledge, experience and wisdom about Fiji, its governments and international relations other issues. His comments therefore deserve serious thought and discussion.
2. JK is adequately qualified to speak on Fiji's constitution, and how its contents specifically relate to native Fijian interests and issues. Although he may not be a qualified lawyer, I am sure his understanding and interpretation of the Constitution would be generally more sound than many other commentators, including our legal practitioners. This is because of JK's breadth and depth of knowledge and experience in public affairs and his intimate understanding of Fijian and Government bureaucracies, traditions and systems..
3. Having said that, I must agree with the FFP commentator above about the fundamental flaw in JK's statement. For him to state that the 2013 BaiKhai constitution provides the best protection of Native Fijian and Rotuman rights and interests demands serious attention from us, especially those who stand for equality, freedom and justice for all.

4. I believe that JK;s comments reveal more about himself than the subject matter he is commenting on. He is well aware that the so called 2013 Constitution is absolutely illegal and a fraudulent document, imposed upon the people of Fij, and primarily designed to protect its authors and coup perpetrators from legal prosecution. But for JK to disregard that and claim otherwise is sufficient evidence of his state of mind and political inclinations.

5. JK is the longest serving and most senior public servant of Fiji, who was strategically placed in the most sensitive position of Government leadership. As the PS in the Fiji PM's office for many years across several PM s and political administrations including that of KKT Mara, JK was one of the most powerful and influential persons in Fiji. His mind is a colourful archive of intensive and extensive knowledge, insight, oversight and experiences of Fiji, from the political cockpit of Fiji.

6. The question that should be posed to JK is; If the indigenous rights of Rotumans and native Fijians are best protected under the illegal and fraudulent document of KhaiBhai constitution, then what does he really say about the military takeover of the civilian Governments in Fiji since 1987, 200, and 2006 ?

7. I can understand the Constitution and its various statements and intentions, both overt and covert. But I cannot understand why such a person as J Kotobalavu has made the bold and dangerous claim to our Western Fijian traditional leaders that their rights and their future as indigenous people of Fiji and Rotuma are absolutely more safely protected under the 2013 constitution of Khiyum.

8. But then again, knowing JK, I reckon he knew precisely what he was saying. And he knew precisely what he wants to achieve. You see, JK has a highly developed image of himself and his own position in Fiji's political landscape. By making the statements this and other statements, JK reveals his true character and his most compelling desire and motivation. He may be already involved with Khai and Bhai or he is declaring his political stand and support for the current administration. That is very consistent with the JK many of us know. Having made a fortune serving the country over many years as the political adviser of several PMs, he wishes to experience what it is like to advise the most unqualified PM (and former St Giles patient) and his sidekick and Chief Controller and Chief Propagandist, AS Khaiyum. This will be the final feather to JK's cap and a fitting finale to his long and distinguished public service career. But sadly, if JK is covertly involved with the mental case Frankie, then it would extinguish the sense of admiration and respect many people hold for him.

Reply
Anit Singh
12/9/2015 09:46:01 am

Joiji’s resume aside - Joiji is beating around the bush – if the iTaukei are recognized as the special, first nation people of Fiji and all their rights as the indigenous people, their culture, their language and all the resources of their cultural heritage are soundly protected – then why the hell NOT -is it simply and specifically written in the bloody Khaiyum 2013 Constitution?

Why on earth do we have to start citing South/West African / NZ case laws to establish indigenous rights of the iTaukei People?

What difference would citing these case laws make to Khaiyum – when this CRIMINAL and a pitiable IP Thief, is unable to abide by our very own Fiji Court of Appeal ruling which establishes the legal dictum that the Peoples’ 1997 Constitution of Fiji cannot be abrogated??

Now, Minister Reddy banning the use of iTaukei language in the classrooms brings to the forefront – a litmus test – that either Minister Reddy is acting unconstitutionally (against Khaiyum’s FRAUD 2013 Constitution) and if not - then it is proven that there are NO protection of anything indigenous in Khaiyum’s FRAUD 2013 Constitution of Khaiyum.

The Indigenous People of Fiji can go take a jump as far as Khaiyum and his FRAUD Constitution is concerned – and/or alternatively dig around in South/West African case laws for recourse. LOL!.

Jioji must also learn to simply tell the truth to the people.

Reply
King Rat
13/9/2015 12:18:31 am

Well put Tomasi. I agree that JK is trying to curry favour (pardon the pun) with VB & ASK. Like Rabuka and others, JK too is suffering from 'relevance deprivation'.

Reply
Kadkid
13/9/2015 12:31:38 am

JK is a Lauan without any land to be spoken off and who when they leave their island are told to go make your future for yourself and don't come back as there is nothing here. For mainlanders, Kadavu and Vanua Levu people this is not true as their is a living to made off the land. This is why he takes a sympathetic interpretation of the land laws and more importantly of the ruthless and dictatorial executors whole are the final arbitrators of their land laws. He may put his trust in the laws but i don't trust the lawmakers.

Reply
Tualeita
13/9/2015 01:11:18 am

Kotobalavu had remained as PS in all those Prime Ministers' Offices because he had to subject himself to their political inclinations despite his own political inclination which I think he has none. He is the kind of person who just goes with the flow and is not opinionated politically.

Whether or not these PMs were right or wrong, it did not matter to him. Where his reasons for being so were because of the security of his employment, the comfortable renumeration, or anything else, we cannot tell.

But Kotobalavu has now endorsed the 2013 imposed constitution and it leaves us questioning whether or not he has morals.

Reply
Jerry
14/9/2015 05:24:15 am

He gave a pretty good answer. I am not saying it's the truth. Just saying he answered well.

Reply

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