"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"- Ghai

"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

Professor Yash Ghai to Sean Dorney, Australian Network News:
"There is no constitutional security for indigenous owners over their LAND."
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.

Fijileaks publishes the unedited full version of the interview:

Sean Dorney & Yash Ghai

SEAN:

THE WORLD RENOWNED CONSTITUTIONAL EXPERT WHO CHAIRED THE COMMISSION THAT DREW UP THE DRAFT CONSTITUTION FOR FIJI THAT COMMODORE BAINIMARAMA REJECTED SAYS HE CAN’T SEE HOW THE ELECTORAL SYSTEM THE MILITARY REGIME IS ADOPTING WILL WORK. PROFESSOR YASH GHAI – IN THIS EXCLUSIVE INTERVIEW WITH OUR PACIFIC CORRESPONDENT, SEAN DORNEY - SAYS THE FINAL CONSTITUTION ADOPTED BY FIJI IS TERRIBLE AND THE WAY IT WAS ADOPTED WAS A BETRAYAL OF THE PEOPLE.

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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.

"I think most dictators have a great capacity for self deception and he may be suffering from that. I doubt if he has read the Constitution - he just repeats what his Attorney General tells him to say, and those are his words." Professor Yash Ghai

Cartoon source: Truth For Fiji website