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Testing Yash Ghai’s alternative to futile cynicism (27 March 2012)


Professor Yash Ghai is appealing to the Fiji public not to be cynical, to constructively engage in the Regime’s constitution review, and “to test Bainimarama’s genuineness”.

Comparing Fiji with MSG countries

These are good suggestions for cynics to take on board, especially when you understand what the two graphs at the bottom of this article mean (more at the end).

Of course, Fiji people are aware, as Yash Ghai would be, that Bainimarama has not kept many important promises:

*  “no military officer will benefit from the coup” (all have, including himself, considerably)

* “I will hold elections in 2009” (he did not)

* the 1997 Constitution will be obeyed and strengthened (in the Charter allegedly approved by more than 400 thousand people): but immediately trashed after the 2009 Court of Appeal judgment

* all Fiji governments will be guided by the pillars of the Charter and the 1997 Constitution: but his own Regime’s many military decrees have denied rights to property, freedom of speech, freedom of association  and assembly, right to recourse to court for perceived grievances, etc. all even guaranteed in the Charter;

* “my government will be transparent and accountable”:  yet refuses to release all Auditor General’s Reports since 2006, as well as all the reports into the FNPF disasters.

The list of Bainimarama’s broken promises is long indeed.

But, as Yash Ghai rightly asks the Fiji public:  do those who wish to restore democracy have any real alternative to this Ghai Constitution Commission Review?

Yash Ghai suggests: “why not test Bainimarama”?

They should  indeed.

But first, the Fiji public would like to “test Yash Ghai himself” –  according to the principles laid down in his own recently published book on constitution review and processes: Constitution-making and reform: options for the process (co-authored by Brandt, Ghai, Cottrel and Regan).

Yash knows his Constitution Review Commission is illegal

  The last legal judgment on the Bainimarama Regime was that of the 2009 Appeal Court, which clearly found that the Bainimarama Regime was illegal, as were all the decisions by President Iloilo.

Consequently, the 2009 purported abrogation of the 1997 Constitution and all of Bainimarama’s consequent military decrees and all appointments (including that of the Ghai Constitution Review Commission, are also illegal.

Many still believe (and probably Yash Ghai himself would agree) that the 1997 Constitution cannot be abrogated by Commodore Bainimarama and any President (legal or illegal) as Justice Anthony Gates so brilliantly articulated in 2001.  (Pity about his later judgements).

So for Professor Yash Ghai, a respected international expert in the area of constitutional law and reform,  to agree to chair this Constitution Review Commission must seem puzzling to the legal and ethical purists.

But, Professor Yash Ghai is offering some light at the end of the tunnel.

He just needs to pass some tests himself before asking the public to trust him.

Ghai’s Principles and the Reeves Commission

  First Professor Yash Ghai  and his Commission must acknowledge that the Reeves Commission whose report led to the 1997 Constitution, whatever its faults, completely satisfied all the principles laid down in his book for ideal constitution review process: public participation, inclusiveness, transparency, and national ownership.

The members of the Reeves Commission (Paul Reeves, Tom Vakatora and Brij Lal) were all agreed upon by Fiji’s major political parties and leaders, not appointed by any one person.

The Reeves Commission went the length and breadth of Fiji discussing relevant issues with all and sundry who wanted to talk to them. all their meetings were public, and submissions recorded for posterity.

They commissioned papers and got advice from an army of experts. They visited and examined constitutions in a number of pluralist societies around the world, facing similar problems to Fiji.

The  comprehensive Reeves Commission Report was well received and largely formed the basis of the 1997 Constitution, accepted universally to be an excellent document, which was to be slowly improved upon.

Perhaps its only  weakness (on which I had a serious falling out with one member of that Reeves Commission), was their recommendation for the Alternative Vote system (read here my views in 1996:

The 1997 Fiji Parliament and the 1997 Constitution also went one step further than the Reeves Report with a recommendation for an extremely valuable power-sharing requirement for a Multi-Party Government, which, sadly, our politicians failed to utilise until too late.

While some Fijian provincial councils may have had some misgivings, both Houses of the Fiji Parliament unanimously passed the 1997 Constitution.

The only aspect missing then, was a Referendum (which I suggested then- but the politicians were in a hurry) (to be kept in mind by the Ghai Commission).

  The public know that the 1997 Constitution also had some other weaknesses which were all too easily exploited by the Machiavellian people in power, causing enormous damage to Fiji.  Read

All these weaknesses could have, and should have been addressed by the elected Parliaments of 1999 and 2001, but they were not considered a priority by the political leaders then, to their great cost later.

This is now 2012, and an elected Parliament and the Upper House has been absent for five years.  Legislation has been passed by Military decrees resulting in a total undermining of investor confidence and a disastrous economic performance (see below).

Why is Ghai not following his own book?

  There are two key omissions indicating a lack of transparency by the Ghai Commission.

First, not only has the Military Regime nominated all three of the current members, but two more have yet to be appointed and the public are not allowed to have a say.

Given his experience and his professional integrity, Professor Yash Ghai himself should be acceptable to everyone.

But it is clear that the leaders of the Indo-Fijian community (Mahendra Chaudhry of the FLP and Raman Singh of the NFP) were not consulted about Dr  Satendra Nandan, who is a known Bainimarama fan (but there is no reason to suppose that he would not be ethical in his contributions).

But Fijian leaders (including Qarase) were not consulted about Taufa Vakatale who almost certainly would not have been approved given her unprofessional performance recently.  (Ms Vakatale has been chairing the Regime’s  “Public Accounts Committee” which keeps examining little molehills of financial misdoings in the Qarase Government prior to 2007, while totally ignoring the mountains of financial misdoings in the last five years of the Bainimarama Regime, while not a single Auditor General’s Report has been published.)

Test 1 for Professor Yash Ghai: He needs to show his independence from the Military Regime and ensure that there is genuine “national ownership” of the process by getting the Regime to agree that he will ask Fiji’s political leaders to nominate the remaining two members, by consensus.

I suspect that Fiji’s political leaders (Qarase, Chaudhry, Raman Singh and Beddoes) would be quite amenable now (I am sure they can find two decent former High Court judges who would fit the bill).

But Professor Ghai also needs to get the Military Regime to stop all the current intimidating measures against all these political leaders, so that they can contribute freely to discussions.

Test 2 for Professor Yash Ghai

  Cynics naturally ask: how can the public contribute if they don’t know what will happen to the final output?

What if Commodore Bainimarama does the same thing he did with the Charter: he obtained four hundred thousand signatures of support for the Charter on the clearly stated pillar that the 1997 Constitution would be the supreme guiding document, but when it suited him, he chucked the 1997 Constitution down the drain (and none of the NCBBF Members uttered a squawk).

So Professor Yash Ghai needs to first of all, clearly outline a transparent pathway, agreed to by the political leaders for the approval and implementation of  the Yash Commission’s Final Report.

Essential in that clarification would be the clear agreement of political leaders on who would be in that “Constituent Assembly” that would approve the Final Report.  Ghai cannot leave it to the Military Regime to stack this Assembly.

Professor Ghai cannot end up saying “oh, I did not know what the Regime was going to do with our Report and Recommendations”.

Yash Ghai has stated that his Commission would be open to the possibility that if the people want to retain the 1997 Constitution (suitably modified where needed) or the retention of the GCC then these could be part of the recommendations for the Ghai Commission to consider.

Of course, cynics know that Professor Ghai is in the business of “constitution review”.

But he has now been appointed by the Regime, and he may now may be quite legitimately asked to abide by his own stated principles of ethical constitution review.

He needs to pass Test 1 and Test 2 above.

Ghai Commmission’s task is not easy

  We all know that there are several areas where the 1997 Constitution can be improved.

The relatively easy ones are the reform of the electoral system, complete clarification of the appointment of Prime Ministers, the dissolution of Parliament, the appointment of the President, the Upper House, the appointment and powers of the  judiciary, etc. Many of these problems have already surfaced in the brief seven years between 1999 and 2006 and the informed public has a good idea where to go.

The far more difficult challenge will be to facilitate a smooth peaceful transition in government from Bainimarama’s Regime to an elected government, with an acceptable exit strategy for Bainimarama, the RFMF and key Bainimarama appointees.

Undoubtedly, amnesty provisions will need to be negotiated, however much it may grate with the purists who think, with great legitimacy, that every amnesty Fiji gives simply encourages another coup.

But there can also be very specific constitutional provision for absolute zero tolerance of any further military interventions in politics (yes I know, how many other illegal activities can a Constitution explicitly ban?).

There must also be a provision for a full Truth and Reconciliation Commission covering the coups of 1987, 2000, 2006 and 2009. If we do not acknowledge the truth of what occurred, Fiji will keep trying to build a nation on the sandy foundations of lies and half-truths about the past.

Professor Yash Ghai’s Constitution Review offers the possibility of a peaceful transition from the current impasse.

If Professor Yash Ghai himself passes the two tests outlined above, critics of the Bainimarama Regime should put their cynicism in cold storage, and test Bainimarama’s genuineness in the proposed Constitution Review.

Professor Yash Ghai’s Commission may offer some light at the end of the tunnel.

Post-script:  Why the Bainimarama Regime needs to voluntarily leave

  The two graphs at the top should convince the Military Regime that, if they hold the interests of Fiji at heart, they should peacefully and willingly relinquish authority and management of the Fiji economy back to an elected government.

Their “experiment at running government” has failed miserably, at our great cost.

In the five years since the  Bainimarama Regime took over in 2006, the economies of other comparable countries like PNG, Solomon Islands, Mauritius, and Vanuatu have gone ahead by between 25% and 40% (based on World Bank data).

Fiji is just barely ahead by 1% after five years.

The IMF, World Bank and ADB (and economic experts) all have said that Fiji’s growth prospects are weak, and all support early elections.

It is therefore extremely doubtful if by 2014, Fiji will be even 10% ahead of where it was in 2006.

The next graph compares Fiji’s economic growth performance per year under all the Prime Ministers Fiji has had.

Any government anywhere in the world with Bainimarama’s record, would have been rejected at the next elections.

Bainimarama’s Regime has forcefully retained control for more than five years already and it will be eight years by 2014- which is two terms in many countries.

If elections are held, and investor confidence in an elected government returns, Fiji could see really high growth rates.

But it will still be a decade before Fiji recovers.

It is up to all the coup supporters to put pressure on Bainimarama to keep to his promise.

Fiji will not forget that they all share collective responsibility for the mess we are in.

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