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“Nazhat Shameem, indigenous rights and the rule of law in Fiji” (12/3/2017)


Nazhat Shameem, indigenous rights and the rule of law in Fiji

[In this post, Nazhat Shameem’s words are given in italics and red.]

Nazhat Shameem is one of the brighter lawyers that Fiji has produced in recent decades. She was once destined to be a star nationally and internationally.

That is, until she took, in my personal opinion,  a wrong turn in 2006 (that die may have been cast when the Qarase Government refused to support her applications to a prestigious international position).

But in 2006, High Court Judge, Justice Shameem irregularly chaired a Judicial Services Commission that appointed Anthony Gates as Chief Justice, who (with Justices Pathik and Byrne) subsequently and strangely concluded that Bainimarama’s 2006 coup was legal.

By that one decision, and totally ignoring the fundamental legal principle of the rule of law verified by the 2009 Fiji Court of Appeal ruling that the 2006 coup was illegal, Shameem hitched her wagon and sharp legal mind to an illegitimate treasonous Bainimarama Government that ruled Fiji until 2014.

Since 2006, as a consultant to the Attorney General, Shameem has been providing all kinds of advice (paid and unpaid) to the Bainimarama Government, including many inputs into the imposed 2013 Constitution which she continues to defend and buttress.

Recently, she has been taking a high profile role as Fiji’s Ambassador in Geneva, where she no doubt impresses the international diplomatic community, given that she is an articulate and forceful woman diplomat, of whom there are not too many internationally, and certainly not from the Third World and Oceania.

But it is in defending the Bainimarama Government’s policies through verbal contortions and half truths (in the vein of Ashwin Raj, Christopher Pryde and recently Calanchini), that she becomes most vulnerable to criticism.

Of course, there are some ethno-nationalists in SODELPA who are guilty of some of Shameem’s accusations, but Shameem’s statements deserve fair analysis, without in any way defending the racism that was behind the plotters and supporters of the coups of 1987 and 2000, some of whom are still in Bainimarama’s government today, as they are in SODELPA.

Shameem’s truths

Shameem’s latest speech makes a number of statements which would appear quite convincing to an international audience.  Some are accurate, such as

racist attitudes were engrained in all communities [in Fiji], which have resulted in mistrust, resentment and suspicion”.

Some must be totally supported such as

However the rights of the majority in democracy, whether indigenous or not, must not be used to suppress the rights of the minorities and vulnerable populations.”

Equally, there are many statements which do not tell the whole truth or are deliberately  misleading and would certainly be misconstrued by a less descerning international audience.

Shameem’s half truths


“racism was institutionalised in Fiji to such an extent that it instilled in a privileged class, a sense of entitlement based on ethnicity and class”.

After Rabuka’s 1987 coup, there certainly was a privileged class of elite indigenous Fijians who obtained preferential access to bank loans such as from the National Bank of Fiji or from Fijian Development Bank such as for Class A shares in Fijian Holdings Limited (some still held today by SODELPA protagonists).

But as I have argued elsewhere, taken in entirety, the majority Fijian community were still massively under-represented at the top income levels, and were virtually non-existent in the corporate sector.

The Fiji Bureau of Statistics data showed clearly that the indigenous Fijians were the largest number of poor in Fiji, going by incomes or expenditure.

The indigenous Fijians were also the poorest going by all the indicators of wealth, such as houses, cars, fridges, televisions, computers, education levels, access to utilities like electricity and water, etc.

The only asset they had much more of was communally owned land, which for many institutional and social reasons, they were not able to translate into incomes and they remained historically poor.

This was not a healthy situation for Fiji.   Affirmative Action was called for, but at all levels.

In some cases, the rich Fijians would have to be necessarily made richer if the gap at the top between the ethnic groups was to be closed, even if it worsened the distribution between the rich and poor indigenous Fijians which most of us do not want either (another headache for policy makers).

But, in my advice to the Qarase Government in 2005, I had emphasized that their largest efforts must be directed to the thousands of struggling small and medium Fijian enterprises, out of whom would in the future, no doubt painfully and slowly, arise the Fijian Punjas, Patels and Tappoos.

But Fijian dominated governments, understandably preferred short-cuts, such as through the National Bank of Fiji (which they effectively made bankrupt in the process) or the Fiji Development Bank (whose solvency without government grants might be questionable), with many attempts resulting in failure.

The fundamental fact is that, contrary to the impression created by Shameem, the majority of the indigenous Fijians were not the privileged classes or castes. Far from it. All the objective data from the FBS show that they were similar to or poorer than the majority of the other ethnic groups in Fiji.

What of the current privileged classes or castes?

While Shameem talks about Bainimarama eliminating the privileged “classes and castes” of old (she certainly creates that grand impression), she makes no mention of the privileged classes created by or perpetuated under Bainimarama.

No less a person than Archbishop Chong (Head of the Catholic Church in Fiji) has pointed out that among the indigenous Fijians the old chiefly classes have been replaced by the new military classes- the officers and their relatives.

Bainimarama has made no secret of the fact that not only has the Prime Minsrter’s rewards from taxpayer funds increased enormously under his reign, many of his relatives are in privileged positions with contracts and board positions. So also are his party’s most important supporters like the chief fund raiser for Fiji First Party, like Sanjay Kaba and family members of the corporate financiers of FFP, including all the hardware merchants.

There are arguably many relatives and friends of the  Attorney General and Minister of Finance who are or have been in privileged positions with respect to taxpayers’ funds.

Shameem’s husband, when CEO of Vodaphone, was given many financial advantages vis a vis its  main competitor Digicel, not just in relation to licensing fees required by government and contracts, but also advertising benefits associated with the sponsorship of the Fiji Sevens rugby team.

Then there are the many corporate entities in Fiji who are openly supporters of Bainimarama in return for special financial benefits given directly or indirectly through corporate tax cuts and the suppression of Wages Council Orders which denied the working class their cost of living adjustments despite massive erosion by inflation.

Some individuals like Ajit Kodagoda  (financial controller of the privileged CJ Patel and owner of the pro-government Fiji Sun (which has a monopoly on all tax-payer funded advertisements despite having a lower circulation than the Fiji Times as well as other financial benefits) sits on a massive number of boards, despite Bainimarama early on in his coup, condemning the many multiple board memberships under the Qarase Government, often involving conflicts of interest. Kodagoda is not alone and many other names can be added.

It is pertinent that the Chairman of the Wages Council (Father Kevin Barr) despite being an early supporter of Bainimarama’s coup, condemned Bainimarama’s support of “crony capitalism” which  suppressed the rights of the working class.

The English language has a seemingly contradictory utterance used when one dying king is succeeded by another king: “The king is dead. Long live the king”.  In Bainimarama’s case, Shameem ought to be shouting from the roof-tops “the privileged castes and classes are dead. Long live the privileged castes and classes”.

UNDRIP is not wrongly used

Shameem: “Racism in Fiji is often disguised by assertions that a community’s own cultural identity is being submerged under the blanket of national unity. These assertions are often made by relying on the United Nations Declaration on the Rights of Indigenous People.

 “In Fiji, the indigenous people are in the majority. They constitute to over 60% of the population and their rights to land, minerals, fishing and cultural succession are protected under the Fijian Constitution.  

 The UN Declaration on the Rights of Indigenous People has been accepted by all the signatories of the UN.   While Shameem alleges otherwise, it still has relevance in Fiji for the many reasons.

There have been many ministerial decisions made on natural resources, for the exploitation of minerals or marines resources without the approval of the land-owning units.  Marine environments like our precious mangroves have been destroyed all over Fiji, explicitly against Fiji Environment Protection laws.

The indigenous Fijian language has been banned from Parliament. Where in the world is the indigenous majority language, banned from the national parliament.  Certainly not in China or India or Indonesia, the great new found friends of Bainimarama and Khaiyum.

While the Government keeps trumpeting their mantra that “with one person one vote, all Fijians are equal” clearly this is a political mirage associated with merely putting a vote in a ballot box.

The other side of democracy which is the rights of people to have their voice in parliament through their trusted representative, is subject to a language test under Bainimarama and Khaiyum.  An indigenous Fijian (or Indo-Fijian or Rotuman or Chinese) who is unable to speak fluently or comfortably in English is banned from representing his or her community’s interests in Parliament. How scandalous.

This is not a minor matter. Shameem should note that when Bainimarama speaks to his army troops (where the real power in Fiji ultimately resides) either as Commander or as Prime Minister of Fiji, he most often uses the indigenous Fijian language, not English. None of his puppet Indo-Fijian MPs in Parliament have ever dared to raise this issue although they must all notice.

It is scandalous that the Fiji Bureau of Statistics has now been banned from obtaining data on ethnicity, including, one hears, in the forthcoming 2017 Census. It also refuses to release tables from the most recent household income and expenditure survey on ethnic differentials in income, expenditure and poverty.

[The Government Statistician is apparently too frightened to even reply to my emails, forget about publishing an extremely important report lying in his desk since 2013, or replying to a recent Fiji Times Letter to the Editor by Paul Geraghty. This is the sad state of senior civil servants in Fiji under Bainimarama and Khaiyum].

Fiji and the indigenous Fijian people will no longer have objective statistics on how poor or rich they are, how educated they are; what kind of houses or toilets or water supply they have, or what their mortality or fertility rates are; or how many of them there are in Fiji and how many are leaving.

Can you imagine the uproar in Australia and the United Nations if the Australian Government banned the Australian Bureau of Statistics from obtaining data on the parlous Third World state of Aboriginal people, arguing that Australia does not need data on ethnicity since everyone is “Australian”. How scandalous.

What “majority” and strong representation in parliament?

Shameem: “Thus, when we talk about the rights of the indigenous in Fiji’s context, we are not speaking of a marginalised minority. We are talking about a majority community with a proud and active culture and a history of strong representation in Parliament.”

Shameem makes much of Fijians being the majority race in Fiji and being “strongly represented in parliament”.

But note, firstly, there are many countries in the world where conflicts have arisen because the majority ethnic group, for whatever reason, feel marginalized by those in power.

As for strong representation in parliament, Shameem conveniently forgets (probably because she was complicit in it) that the  lawfully elected government of Qarase (which was not only supported by the majority of indigenous Fijians and the Fiji Labour Party) was removed by Bainimarama’s coup (with the strange approval of the Leader of the Fiji Labour Party- another sad story) with allegations of corruption which have never been proven after ten years.

On the contrary, corruption is still alive and well (“Corruption is dead. Long live corruption”?).

To this date the Bainimarama Government has not answered the legitimate questions asked by the Auditor General and the Public Accounts Committee about ministers’ salaries (how much and why) from 2010 to 2013 being paid through a private accounting company relate to the Attorney General or about consultancies awarded without proper tender.

[These questions were being asked when Professor Biman Prasad was chairman but appeared to have died when he was removed as Chair. Neither is the pathetic public asking why the SODELPA reps on the PAC have also gone quiet on this issue. Was there a deal?)

The “new” right to life and freedom from torture?

Shameem: the Fijian Parliament in 2015 abolished the last vestiges of the death penalty remaining in the Fiji Military Forces Act, thus giving credence to section 8 of the Fijian Constitution which is the right to life.   Moreover, in March 2016, Fiji ratified the United Nations Convention against Torture or UNCAT, which complemented section 11 of the Fijian Constitution which already says that every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment…. There will now be discussions about a new offence of torture”.

How extraordinary that Shameem presents all these as new developments under Bainimarama when they were all there under the previous constitutions.

How extraordinary that Shameem ignores that it has been under Bainimarama’s command, both as Prime Minister and as Military Commander, that there have been numerous cases of torture some even leading to death, with many of the culprits not being brought to justice.

How extraordinary that Nazhat Shameem, a former High Court Judge, talks about a “new offence of torture” as if it previously had not been an offence before Bainimarama came along with his 2006 coup.

Perhaps the Fiji lawyers and the Fiji Law Society can ask Nazhat Shameem and her sharp legal mind, whether all the immunity provisions in the Bainimarama Government’s 2013 Constitution (never approved by the Fiji parliament) prevents prosecution of those accused of torture, manslaughter and murder and whether the Statute of Limitations applies to all the coups (of 1987, 2000 and 2006) and the mutiny of 2000.

If they are masochistic enough, experts in law, language and literature can waste many more hours of their valuable time to “deconstruct” (using Ashwin’s jargon) Shameem’s speech and show how it amounts to mere propaganda about how the Bainimarama Government “is the first in Fiji” to ever do anything decent for its people.

They can start with this gem, which is so worthy of Ashwin Raj (Chairman of MIDA and Fiji Human Rights Commission) that one might think he had a hand in this literary masterpiece by Nazhat Shameem.

Shameem: “Fiji has embarked upon a path of substantive equality, and this path requires a level of gender, disability and cultural competence and the ability to understand that poverty and disadvantage exists in all cultural groups. It also requires a recognition of cultural practices and attitudes as necessary for an understanding of how multiple sources of discrimination often intersect”.

Good luck.

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