One year on from abrogation of Fiji constitution
http://www.radioaustralia.net.au/pacbeat/stories/201004/s2863309.htm
Updated April 2, 2010 14:44:00
Today we're bringing you a debate about the abrogation of Fiji's constitution, which occurred at Easter last year.
Taking part will be one of the men who helped write that constitution, academic Dr Brij Lal from the Australian National University in Canberra. He's vehemently against the 2006 coup, and the subsequent decision to dump the constitution.
And the other is Aiyaz Sayed-Khaiyum, Fiji's interim attorney-general and minister of justice - a staunch defender of the actions undertaken by Fiji military forces head, Commodore Frank Bainimarama.
Presenter: Bruce Hill
Speaker: Geraldine Coutts, Pacific Beat presenter; Ian Lloyd, former judge in Fiji's Court of Appeal; Russell Hunter, former editor of the Fiji Sun newspaper; Dorsami Naidu, President of Fiji's Law Society; Dr Brij Lal, Australian National University; Aiyaz Sayed-Khaiyum, Fiji's interim attorney-general and minister of justice
Today we're bringing you a debate about the abrogation of Fiji's constitution, which occurred at Easter last year.
Taking part will be one of the men who helped write that constitution, academic Dr Brij Lal from the Australian National University in Canberra. He's vehemently against the 2006 coup, and the subsequent decision to dump the constitution.
And the other is Aiyaz Sayed-Khaiyum, Fiji's interim attorney-general and minister of justice - a staunch defender of the actions undertaken by Fiji military forces head, Commodore Frank Bainimarama.
But first, some background on what happened in Fiji at on that day last year. Here's how Pacific Beat's Geraldine Coutts reported on what happened when the judiciary ruled that the coup-installed interim government was illegal.
COUTTS: Ian Lloyd was one of three judges at Fiji's Court of Appeal that ruled Commodore Frank Bainimarama's interim government illegal. That decision sparked a chain of events. Commodore Bainimarama stepped down, Fiji's president dumped the constitution, sacked all the country's judges, and reinstated Bainimarama's entire government. I spoke a short time ago with the now sacked judge, Ian Lloyd, and asked him what he thought as the events unfolded.
LLOYD: It wasn't a decision we easily arrived at, but in the end we were sworn to uphold the law and the constitution of Fiji and we had to do what we thought was right in law, regardless of the consequences. Because without the rule of law any country, particularly a developing nation like Fiji is really nothing. We never really expected that the abrogation of the constitution would actually take place. We realised it was a remote possibility, but it clearly has now occurred.
HILL: Reaction was swift and severe. A former editor of the Fiji Sun newspaper, Russell Hunter, who had earlier been expelled from Fiji, was scathing in his condemnation.
HUNTER: It exposes the government for what it is, a criminal regime in denial. It's a bit like the senior officers in the Fuhrer's bunker moving armies around the theatre while the Russian tanks roll over them.
HILL: Do you think this situation is tenable in the long run?
HUNTER: Certainly not, for a start they lack the personnel and the expertise to keep up this effort.
HILL: As the Fiji interim government asserted its authority after overturning the constitution, the legal profession found itself targeted, as Geraldine Coutts reported later that day.
COUTTS: Fiji's courts were due to reopen today after the Easter break, and of course during that break the constitution had been ripped up by the president and the entire judiciary sacked. When the magistrate's lawyers and staff turned up for work today, they were locked out by order of the military government. The Director of Public Prosecutions, Josaia Naigulevu didn't show up. Rumours are circulating about his fate. The President of Fiji's Law Society, Dorsami Naidu, has spent the day being questioned by police. They wanted to know if the staff who turned up at the Lautoka Court were breaking a decree against illegal assembly. I spoke with Mr Naidu a short time ago, and he told me he's being held at the police station overnight.
NAIDU: They've decided to keep me in custody under the Public Order Act, though I'm not charged with anything and they haven't got anything on me to charge me with.
COUTTS: And you volunteered to go into the Lautoka Police Station?
NAIDU: Yes when they asked me, I volunteered.
COUTTS: And what kinds of questions have you been asked?
NAIDU: Was I holding a meeting or not in the morning, and there was no meeting, they attended the court, the court wasn't in session and we all went across the road for a cup of coffee.
HILL: So why did the Fiji interim government react the way it did when the Court of Appeal ruled that it was illegal? And what has been the result. That's the topic of today's debate, between Aiyaz Sayed-Khaiyum, Fiji's interim attorney-general and minister of justice, and Australian-based Indo-Fijian academic and co-author of Fiji's 1997 constitution, Dr Brij Lal.
Mr Sayed-Khaiyum insists that what was done at Easter last year was legal and necessary under the circumstances.
KHAIYUM: It was a political vacuum that had been created, indeed one many would argue a legal vacuum also that had been created, because of the ruling of the Court of Appeal. And subsequently the then president decided to abrogate the constitution, and of course all the positions that were held as appointed under the constitution or by the constitution had to go and then a new government was appointed.
HILL: So from your perspective everything that was done was done basically legally and above board?
KHAIYUM: The fact is that the constitution had been abrogated by the president. Now with the abrogation a new government was appointed. Now we can argue as to whether the president did the right thing or not, but the fact is that he did abrogate the constitution, and he obviously using his discretion as the head of the state decided to abrogate the constitution, and we are where we are today. And we are essentially we have a government that has been mandated by the president to hold elections in 2014, and this will happen.
HILL: You say it was mandated by the president but you do have a situation where you have a government that's not been mandated by the people in any way. How much of a problem is that for the interim government of Fiji at the moment?
KHAIYUM: I think you need to actually question the principle in which you're basing the question on, and that is when you say by the people, there's an inherent assumption that by the people means holding elections. The question then is what sort of elections do you want under what sort of electoral system do you want? And we can argue when you can't have elections for the sake of election, you need to have an electoral system that is fair, you need to look at the historical basis as to how and where a country has got to, and that's the situation that we are in Fiji. I think you and I can sit here and argue for hours as to what should have happened or what shouldn't have happened or what should happen. The reality is that the constitution has been abrogated, the elections will be held in 2014, regarding in terms of the election and the system of government is through the People's Charter and that's what this government is basing its policies on, that's what it's working towards. And indeed it will ensure that you'll have an electoral system and the elections will happen where you have one person one vote. And might I just add, that in terms of the feedback, in terms of the response that the government is getting, and not just the government, if you were to talk to the ordinary citizens in Fiji many people are a lot more focused in terms of what the government is delivering or what it is not delivering as opposed to a handful of people who may in fact be saying that this government should not exist.
HILL: Well Dr Brij Lal, you're one of the authors of the constitution which was abrogated last year. What's your interpretation of what happened a year ago?
LAL: Well I think the first point is this changing of the mantra of mandate doesn't really work, because in a Westminster system the president does not have absolute power to act unilaterally. He or she must act on the advice of the government of the day. If the government of the day is unable to perform its duties, discharge its responsibilities because of some natural calamity or civil disorder and so forth, he can assume certain emergency powers for a limited period of time, but then eventually as soon as order is restored he must return to parliament. Now I think the whole question of electoral system, I think is a bit of a red herring. Yeah I mean you can have one man one vote one value, but that doesn't solve the problem, the endemic problem in Fiji. I mean you look at countries like Malaysia and Ghana, they have common roll, but that doesn't resolve the problem of certain groups feeling left out.
KHAIYUM: If I can make a comment, there's a whole simple argument here too. Brij has talked about the legal but there's enough legal loopholes also within the 1997 constitution. The reality is that Fiji is not a Westminster system in the strictest sense of the word. So we can argue about that. But getting back to the whole philosophical basis of the government of national unity or the coalition partners that was put in place, there's a practical reality of it. Brij was talking about the 2006 government with the coalition government. Now that whole power-sharing assumption that political parties will be based along ethnic lines, now that becomes a lot more ingrained when you have a system, an electoral system, that essentially says that you have communal seats. I also accept and acknowledge the fact that the Paul Reeves commission on which Brij Lal was a part of did in fact recommend I think it was 42 or 45 open seats as opposed to the 42, 45 communal seats that the parliament select committee came up with. That I accept. But the point is that we can talk about these issues. What I'm saying is that we have to accept what the ground realities in Fiji are. If people are genuinely concerned about Fiji and Fiji's future then we'll work together to find the best solution. And what I'm saying also that at the moment in Fiji what is happening on the ground realities, it's obviously not perfect, Australia's not perfect, no country's perfect, but what is actually happening in Fiji there's a lot of positive things happening. You've got a government that's got a very, very open mind towards modernising, towards changing systems, towards having common and equal citizenry. These are the sort of fundamentals that need to be, we need to have these sort of characteristics in a modern nation state. So if we are going to progress Fiji to be a modern nation state, then we need to all come together, work together, use the resources of people like Brij Lal etcetera, to be able to focus on the future.
LAL: Okay can I just make this point, I mean I take the point about accepting the ground realities in Fiji. I mean the fact really is that the reality is not etched in stone, reality is manmade and what man makes man can unmake also. Of course 1987 the coup was a reality and yet through time and dialogue and discussion, we were able to reach a point of consensus. And I think this is the point that needs to be made that one cannot have one's way all the time. I think it's important to engage with an open mind. For example I mean there's no point in the interim prime minister saying I will not allow so and so and so and so to stand for elections, I will exclude these people for these reasons from participating in the political dialogue process. So I think inclusiveness and transparency, which form the cornerstone of the People's Charter, which underpins the government's approach and so on, I mean these things must be observed in reality.
HILL: Mr Sayed-Khaiyum you said that you wanted to work with people like Brij Lal to build a better country. But you kicked him out and then a few weeks later you kicked his wife out?
KHAIYUM: I don't want to go into the personal matters Bruce but my point is in terms of, I'm talking about people who actually want to contribute, and what I'm saying here is I accept the fact, I just want to address the issue of what Brij has said about the PM saying certain people are going to be out of the political dialogue or the dialogue forum that he's proposed. You may recall that in one strategic framework it said that the dialogue process in fact following the abrogation of the constitution would begin in 2012. It in fact brought that forward. Now we've got to choose a chairperson for that. In that respect when he talked about certain individuals not being part of the process I think that was put out of context. What he meant was that if the type of ideas that the people are putting out on the floor, the idea that these people are propounding, and the ideas of ethnicity, the ideas of having communalism, that's what he's opposed to. And I think again I'll make the point - the point is I mean there are a lot of people who talk about, they use the phrase well race is a reality in Fiji, race is a reality in every single country. But as leaders you have to move away from ethnic thinking. Brij Lal would also tell you that following '87 that the decimation, let me give you an example, the decimation that took place for example in the civil service because [unclear] was out the window, and what you then had was you had appointments for example based in the city, based on who you knew, what province you came from, which church you went to or who you knew or how much you greased somebody's hands. They are the sorts of practices that took place. And today we are paying the price for that. We have as a result of that a huge brain drain, people like Brij Lal are probably an example of that. There are many good profession people, many good civil servants - for example John Samy people like that, he was a permanent secretary in government, he went off to ADB. Many other people have left Fiji. Now primarily because when you have politics, when you have the paradigm that's based on ethnicity it basically permeates through every aspect of your life, it permeates through the bureaucracy, it permeates in the decision making processes. Do we build a bridge here, oh look, what ethnic composition is around this area? No, that should not be the thinking. Is this bridge good for this place, is it for the development of this place, is it for the good of these people, irrespective of the people which group they belong to, that's what we are talking about. And that's what we are focused on.
HILL: Well Dr Lal, Aiyaz Sayed-Khaiyum says that you're an example of the brain drain from Fiji that needs to be reversed. Under what circumstances did you leave Fiji last?
LAL: Well I left Fiji in 1983 and the last time I left Fiji I was deported. I think the point is that yes, no one condones racism, no one condones racial discrimination, that's taken for granted. But what is happening in Fiji now is not condusive to good people remaining in the country. You have since last April rule by decree, you have complete press censorship, you have Public Emergency Regulations that prohibit any freedom of speech, association and so on. These sorts of things are creating a kind of atmosphere suffused with threats and intimidation. These things are not going to keep good people in. Look at the civil service for example, now it's been said that because of sanctions people are not prepared to join the public service because they'll have their travel visas revoked and so forth. I really don't think that that's a main reason. The main reason is the absence of transparency in good governance in the civil service. People know that if they join the civil service they'll have to be answerable to the immediate bosses and if what they say is not liked, they can be kicked out without due process. There's no procedure for appeal against unfair dismissal and these sorts of things.
KHAIYUM: This is actually what I'm talking about because essentially this is taking the comments of one or two people in Fiji, I'm sure Brij has not experienced it personally himself but there are civil servants who are being removed or booted out since this government's been in place without there being due process. In fact if he cared to look at what's actually happening on the ground, he would find the reality very much different to what he's saying.
HILL: He can't look at it on the ground, you deported him.
KHAIYUM: This is precisely the point that I'm talking about. My point is we have a handful of people who have taken up a few instances and therefore they are tying those instances as a general rule as to what is happening in Fiji. That is the issue I have because I can tell you otherwise that there are many people, grassroots level people, people who are satisfied as to what is happening because prior to 5 December, many of the injustices that were taking place weren't criticised by people like Brij Lal.
LAL: Oh that's not true, that's not true.
KHAIYUM: They're only criticised now. You talk about freedom of expression yes we have Public Emergency Regulations that are in place. Now under the Public Emergency Regulations yes there is a particular provision regarding the media, we accept that. Now in terms of the ground realities that what is being published and printed by Fiji Times and Fiji Sun and shown by Fiji TV is very much different to the general picture, the demonised picture as being portrayed on this subject.
LAL: Let me point it this way, let's agree to disagree because while I live in Australia I have direct contacts with people in Fiji and I'll tell you, you talk to civil servants, you talk to civil servants at all levels of the bureaucracy - there is a culture of silence, there is a culture of fear, a fear of being punished if they speak something that those in power don't like. So let's agree to disagree on that issue. I think the important thing is that okay, the interim administration will tell you've done this, they've passed this decree, they've reformed that, that is the nature of those who, people in unelected regimes want to make a show, sometimes they do good things, sometimes they do bad things. The important thing really is, and Aiyaz will agree with this, that eventually the government of the country must be returned to the people of the country.
HILL: The last time I was in Fiji Mr Sayed-Khaiyum you very kindly invited me to a meeting of the Nadi Chamber of Commerce, and you gave a speech in which you outlined your plans to hold the elections in 2014 and the President of the Nadi Chamber of Commerce got up and made a speech in which he said for God sake, put it off as long as you like, don't let the politicians back in, they'll just wreck the whole thing. And he got cheers and applause. I think there was one man who shouted out that he disagreed, but all the businessmen there in Nadi said yeah please don't let the politicians back in. But there was a substantial body of opinion that actually supported what the interim government is doing. So it's not just as straightforward as you say is it Dr Lal?
LAL: Well I think this is the point, that one should not construe that kind of applause as support. This is contingent support, not absolute. I mean this applause, somebody else tomorrow whoever is in power. They have no conscience, no sense of morality, no civic duty, many of them probably have their investment overseas, they have PR overseas, they're in Fiji to make money and as long as they can get what they want, they don't really care. So I would not necessarily accept that kind of behaviour on the part of the President of the Nadi Chamber of Commerce as being typical of people throughout the country. Yes businessmen they change their tune according to what will get them the best results which is making profit at the expense of everything else.
HILL: Mr Sayed-Khaiyum were you surprised at the support you got at the Chamber of Commerce meeting? I was surprised coming from outside Fiji, I was told that basically everyone was against the interim government and here was a group of very influential people basically applauding what you're doing?
KHAIYUM: Bruce this is what I'm continuously trying to say, no matter how much you say this is what you experience Brij Lal will give you a counter argument to that. I'm actually in Levuka today, there was something like 500 workers, mainly females, who just very briefly addressed and they actually broke out in applause too, not because somebody said don't have elections. But essentially what I'm telling you is that the ground reality is very much different and it is very unfortunate that we have a few people who are labouring this point irrespective, and we've come to accept this, irrespective of whatever realities you present to sound these critics of the government, they will twist and turn it and they will say it's not representative of what is happening in Fiji. So this is why I said right in the beginning, I really don't want to argue about that, what I am saying is that we are very much focused on development, we're very much focused on actually true democratisation. Now what is true democratisation?
HILL: Well I'd suggest it doesn't involve a coup?
KHAIYUM: No, no Bruce we've gone over that, I'm talking about what's happening in Fiji. True democratisation, I can talk to you about what's happened in Australia and what happened to the Aborigines but we don't labour the point. My point is we need to look towards the future. Now true democratisation means for example empowerment, it means for example people having access to legal aid, it means having right of recourse in various things which they did not. There are many hallmarks of democratisation and the democratisation process. Elections is very much an integral part of that, I accept that, we all accept that, we've never denied that. But we've also, the electoral system needs to be a fair and just and equitable electoral system. From now 2010 to 2014, we've got about four or so years, what do we do in Fiji at that time? We have got a plan, we've got a roadmap set out by the People's Charter, we've set out clearly what we want to do, what we want to be focused on. So therefore what I'm saying is those people who do want an assist Fiji need to help us in that respect.
LAL: Ok I think that the point about true democratisation or what one takes, but true democratisation also means respect for the rule of law, it means independent and impartial public service and judiciary, it means as soon as possible an elected parliament, it means getting power back to the people. Now the other point that I think needs to be emphasised is Aiyaz has tried to portray himself as somebody who's speaking on behalf of the good of the people of Fiji, and if anyone disagrees with his narrative is denigrated. And I think this is very unfortunate because then there's no basis of conversation, no basis for reasoned dialogue and conversation. I am not anti-Fiji, I really am not, Fiji was where I was born, it's a country very close to my heart. But I do have very severe reservations about the nature of developments there, and I think that instead of kicking the messenger let's listen to the message. I'm not the only one, and I'm not really only a handful of people. If you think that other people like myself are in a minority let's have an open and free press, let's remove the Public Emergency Regulations, let's hear what people are saying. At the moment we have no way of gauging what public opinion is because it's being repressed in an unprecedented kind of a way in Fiji today.
KHAIYUM: Bruce only time will tell.
LAL: As it always does.
KHAIYUM: Only time will tell Brij, and I think that time will come sooner than you think it is. But anyway look my, there's talk about the judiciary not being independent. And I have said this repeatedly, both independent groups that have come to Fiji and carried out an assessment of the judiciary - that involves Law Asia, that involves the union mission that was sent across by the EU - none of them, none of them found that the judiciary was being interfered with.
HILL: And we heard there from Aiyaz Sayed-Khaiyum, Fiji's interim attorney-general and minister of justice, and Australia-based Indo-Fijian academic and co-author of Fiji's constitution, Dr Brij Lal. I'm Bruce Hill, thanks for joining us on Pacific Beat this Good Friday.
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