May 2013 | $3.95VIP
FIJI’S CONSTITUTION DEBATE
In whose name?
Volume 1 | No 5
Dangers in the regime’s bill of rights By Shamima Ali
Why the military thinks the way it does
By Jone Baledrokadroka
What you’re paying Qorvis for ‘positive news’ By Ricardo Morris
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/republikamag Vol 1 | No 5 | Feb-May 2013
COVER 12 | Who really owns the new draft? It was perhaps always going to be the case: In whose Fiji’s militaryname? led government had a draft constitution waiting in the wings while the country engrossed itself in the national optimism of the Yash Ghai constitution commission during the second half of 2012. The government’s own document released in March 2013 is a pareddown, customised version that will ensure the status quo brought into place since Commodore Voreqe Bainimarama took power in December 2006 will be difficult to change. May 2013 | $3.95VIP
FIJI’S CONSTITUTION DEBATE
Dangers in the regime’s bill of rights
Why the military thinks the way it does
By Shamima Ali
By Jone Baledrokadroka
What you’re paying QORVIS for positive news By Ricardo Morris
republikamagazine.com | Repúblika |
Volume 1 | No 5
We the people? People listen intently during a United Front for a Democratic Fiji meet
DISPATCHES 25 | Draft constitution Shamima Ali
MINISTRY OF INFORMATION
on the wrongs in the bill of rights JUFFA COLLECTION
26 | Draft constitution Brij V Lal on the legitimacy of the process 28 | Viewpoint Jone Baledrokadroka 24 | Draft constitution Shaista Shameem on how the draft can be improved
on what the military thinks of itself
32 | Documents Ricardo Morris on
35 | Papua New Guinea Gary Juffa on a letter from his mother
what Fiji’s taxpayers are paying Qorvis
5 | Briefing News from Fiji worth noting
30 | The F-Word Roshika Deo on the enemy to change that’s ourselves
37 | Short story Jill Cottrell Ghai
8 | Pasifika Post Regional current
11 | The Rising Ape Alex Elbourne on
affairs worth knowing
on the difficulties and triumphs of nation-building
the great gay debate
42 | The Last Word Isaia Lawaniyasana on forcing constitutional change 2
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Where to from here?
t is no exaggeration to say that Fiji as a nation stands at a crossroad. Yet again we are at a decisive moment in our history. The stakes are high. In rebuilding this country, one of those questions that, no doubt, has gone through the minds of those in power is, “how much can we trust the people to know what’s good for them?” The answer it seems is: not that much. With the disposing of the draft of the Fiji Constitution Commission and all the symbolism that entailed, Commodore Voreqe Bainimarama has unveiled his government’s own version written by Attorney-General Aiyaz Sayed-Khaiyum and his team. The government did not like many of the provisions in the Yash Ghai draft including the mechanisms for the granting of immunity, the removal of the Attorney-General’s office, the return of the Great Council of Chiefs and a People’s Assembly, which Bainimarama said would be made up of “unelected people” (ahem!). It seems the government should not have bothered with the constitution
commission, which it barely trusted to do an independent job. And just as it lost faith in the commission, it also lost faith (or perhaps developed fear) in the idea of a constituent assembly to debate and amend the commission’s draft constitution. Bainimarama turned this idea around when he told the people of Fiji they were the new “assembly”. But with the government’s draft out, the “briefing sessions” organised by the Attorney-General’s office have been interesting. In seeking legitimacy for the draft constitution, the government has sought to meet with as many people as it possibly can, including taking to the airwaves, but whether it takes all viewpoints on board is another question. In fact the talk-back shows on Fiji Broadcasting Corporation have done much to shed some light on the calibre of our leaders. The radio shows are filmed for broadcast on FBC TV later and in one of the sessions on Radio Fiji Gold’s ‘Have Your Say’ Bainimarama can be seen gesturing to announcer Wame Valentine to cut a caller off because he was not happy
with the question. Bainimarama also dismissed one caller who asked about freedom of expression and the media by saying it had nothing to do with the constitution. We hear hardly anything of substance in these talkback shows. The refrain is always the same and the fall back the same too: blame the “old politicians” and the Laisenia Qarase government for many of the problems that confront us. But the question that is hardly ever asked is how Qarase and his former cronies can still be responsible for all the woes this country is facing seven years after Bainimarama seized power from him. Qarase has gone to prison and come out and yet he still somehow is to blame. In any case, the government’s new political parties decree rules Qarase out from standing in a forthcoming general election. Bainimarama will be in power longer than any coup prime minister when (and if) we go to elections next year. Much of what is wrong with this country – and some of what is right with it – can be laid squarely on the shoulders of our powers that be and nowhere else. R
Vol 1 | No 5 CONTRIBUTORS We welcome your comments, contributions, Australia Fiji corrections, letters or suggestions. Send them to Brij V. Lal Alex Elbourne firstname.lastname@example.org or leave a comment Jone Baledrokadroka Citizens’ Constitutional Forum on our social media pages. DEPUTY PUBLISHER Isaia Lawaniyasana Aman Ravindra-Singh New Zealand email@example.com The opinions expressed in Repúblika are the authors’ Jill Cottrell Ghai Shaista Shameem own and do not necessarily reflect those of the Laisiasa Naulumatua ADMIN MANAGER publishers. The editor takes responsibility for all nonRoshika Deo Papua New Guinea Asena Camaivuna Shamima Ali Gary Juffa firstname.lastname@example.org attributed editorial content. Published by Repúblika Publishing | 8 Mitchell Street, Peace Embassy Suite A107, Suva | PO Box 11927, Suva, Fiji | Phone: +679 3561467 | Mobile: ++679 7748815 / 9041215 | Email: email@example.com | Printed by Bluebird Printery, Suva, Fiji | ISSN: 2227-5738 Publisher & Editor Ricardo Morris firstname.lastname@example.org
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Your letters, feedback and viewpoints
A mistaken assertion clarified I was interested to hear Richard Naidu speak about the ‘rule of law’ regarding the government’s draft constitution to an audience which was uploaded on (Repúblika’s YouTube channel) (and the website Fijipensioners.com has put a link to your website on that speech which is where I found it). About 5.24 minutes into his speech Richard starts speaking about section 7 of the draft constitution of the govern-
ment on the interpretation of the bill of rights and states that the “restrictive provision” was not in the 1997 Constitution and also not in any “civilised” constitution or words to that effect. However, I have to say that he is plainly wrong as you will see from the two constitutional provisions in section 43 of the 1997 Constitution and section 7 (3) of the 2013 government draft. As you will see these provisions are identical. Richard may have highlighted other
important aspects of ‘rule of law’ in Fiji but in this one he makes a mistake. He should be invited to correct it as it will have the effect of calling all his other summations into question. Shaista Shameem Auckland
n EDITOR’S NOTE: Having read the comparable provisions, Richard Naidu agrees he was mistaken. Watch the video at this link: tinyurl.com/Naidu-RuleofLawinFiji
TRENDING | What was being discussed on social media pages we follow OUTCRY OVER AIR PACIFIC TRADEMARK ATTEMPT 19 APRIL | A trademark application by Air Pacific, soon-to-be Fiji Airways, for the commercial use of 15 individual traditional Fijian and Pacific masi motifs that appears in its new logo in late January drew a storm of protest. A social media campaign grew calling on the government not to allow it, although the group saw the merit in trademarking the airline’s new logo. The Noda Masi Facebook page brought together ordinary people, academics, traditional knowledge and intellectual property experts who organised a drive to document their case
FIJI TIMES FACES CHARGES 6 MARCH | The Fiji Times Limited and its six directors became the first media organisation to be charged for an alleged breach of the Media Industry Development Decree 2010 for allegedly failing to ensure that all its directors were Fiji citizens permanently residing in the country. The charges were brought against the newspaper company by the Director of Public Prosecutions Christopher Pryde.
YAWNING NOT AN OFFENCE 8 MARCH | In one of the strangest
TALK BACK TO US 4
against the airline during the three-month objection period. By the 19 April deadline for objections to be received by the registrar of trademarks, those behind the Noda Masi campaign managed to deposit a petition gathered from 1792 people; a legal opinion on the grounds of opposition to the application by Dr Miranda Forsyth, a postdoctoral fellow at the Australian National University; a paper by USP lecturer Cresantia Koya-Vakauta; and a list of recommended consultants who would provide testimony against the trade-marking of the kesakesa designs and any other form of indigenous collective knowledge.
cases to come before Fiji’s courts, a man who was convicted of contempt of court for yawning loudly outside a courtroom in Navua in April 2010 had his conviction overturned by the Court of Appeal. Herbert Wise was put into a cell by former chief registrar Irani Wakishta Arachchi, before being charged with contempt of court. Justice Daniel Gounder, in ruling for Wise said the natural act of yawning could not be considered a criminal offence.
3 APRIL | Ousted Prime Minister Laisenia Qarase was released from
prison after serving eight of his 12month sentenced for abuse of office charges relating to his role as a financial adviser to several family and community businesses in the 1990s while a director of Fijian Holdings Limited. At the time he was the managing director of Fiji Development Bank. Qarase’s appeal against conviction hearing took place in the Fiji Court of Appeal on 2527 February but a judgment has yet to be delivered by the three justices of appeal. n See photos on Repúblika’s Facebook page at this link: tinyurl.com/QaraseAppealPhotos
4Join us on facebook.com/republikamag4Email to email@example.com 4Follow us on twitter.com/republikamag4Write to PO Box 11927, Suva, Fiji
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briefing News worth noting
LIFE THROUGH LAI’S EYES
Women defy rights march ban in own way
Shamima Ali leads a candlelight vigil at the FWCC office in Suva on 8 March 2013. February-May 2013
he Fiji Women’s Crisis Centre did not let the cancellation of their permits by police to hold their annual “Reclaim the Night” march discourage them. They held candlelight vigils at their centres in Suva, Nadi and Labasa. They also staged a symbolic walk along the perimeter of FWCC’s Suva headquarters. All marches to commemorate International Women’s Day (IWD) were cancelled after police withdrew permits issued previously. The day before 8 March, the FWCC’s Suva march was banned with police citing “recent information” that raised “national security” concerns. An anti-rape march scheduled in Tavua on the morning of 8 March was cancelled although the women who gathered for it staged a symbolic walk. Reclaim the Night marches in Nadi and Labasa were also cancelled after police withdrew the permits. FWCC coordinator Shamima Ali
said with the increase in reported sexual assault and rape cases, this was a missed opportunity for government to mobilise support. “What the authorities don’t seem to understand is that the community want to show their public support of efforts to eliminate sexual assault against women and girls and when they start to deny these opportunities, they kill the interest,” Ali said. Without a sense of irony, the Ministry of Information released a statement from the Prime Minister the same day congratulating women on IWD. The statement attributed to Commodore Voreqe Bainimarama said: “The Fijian Government is committed to not only protecting the legal rights of women but empowering them and enhancing their status in Fijian society.” n Watch a video of the Suva event at this link: http://tinyurl.com/FWCC-IWD2013
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THE extraordinary sight of what amounted to a peaceful protest greeted people at the Holiday Inn end of the Suva on 4 April – a group of about 100 tribal elders from Rewa led by their paramount chief, Na Roko Tui Dreketi Ro Teimumu Kepa walking solemnly from the hotel along the footpath to the offices of the Ministry of Justice at Suvavou House. The significance of the traditional landowners of Suva walking across what they consider to be theirs spiritually would not have been lost on those watching. The chiefs brought with them a petition signed by Ro Teimumu and eight of her chiefly leaders registering their “gravest objections and opposition” to the draft constitution which they say violates the rights of indigenous people under international conventions. “In the last six years, the interim government has continued to weaken and ridicule our indigenous institutions, our traditional leadership system
ISIKELI SILA/REWA MEDIA COMMITTEE
Rewa chiefs protest ‘belittling’ of rights
Ro Teimumu and her chiefs present their petition at Suvavou House, although they were not recieved by anybody of rank.
and anything that we, the indigenous people claim to be our rights as the first settlers of this land,” the petition said. Despite its opposition to the military-led government, the chiefs said they agreed to participate in the Yash Ghai constitutional exercise held last year. “Very briefly towards the end of 2012 there was renewed spirit of confidence, hope and relief that our nation was finally moving towards Parliamen-
tary rule through the General Election in 2014,” the petition said. “This was not to be.” The petition addressed to the Solicitor-General Sharvada Sharma, who was unable to meet the group, said the government “must consult fully with the indigenous Fijians and obtain their prior and informed consent before it changes any legislation or policy affecting them.” The petition was received by a government lawyer. The letter was copied to President Ratu Epeli Nailatikau, Prime Minister Commodore Voreqe Bainimarama and Attorney-General Aiyaz SayedKhaiyum. Attached to the petition was an appendix that listed special privileges and rights of indigenous Fijians which the chiefs say have been “removed or weakened and belittled by the Interim Government.” n RICARDO MORRIS. See photos pages 19 and 20. Click on this link to view more photos: tinyurl.com/RewaPetition
ON THE RECORD “Same-sex marriage is an issue which is not even up for discussion. It will not be allowed because it is against religious beliefs.” Commodore Voreqe Bainimarama responding to a caller on a talkback radio show. (Aaina, Radio Fiji One, 26 March) “Religious belief is personal, religion and the State are separate - it means the government and the state apparatus should always be neutral.” Attorney-General Aiyaz SayedKhaiyum explaining to Lautoka residents why a secular state is an important part of the draft constitution. (Fiji Times, 11 April) “Everywhere we go we are treated very well, people feed us, people look after us when we are out there in the field. If anything we’ve been greeted with open arms.” Colonel Mosese Tikoitoga, Land Force Commander, on what he thinks of the relationship between the military and the people of Fiji. (Radio Australia, 20 March) “In three months’ time, you would be able to know how much money I earn, whether I have a house or not, whether my wife has a house or not and whether any of my children have any properties.” Attorney-General Aiyaz Sayed-Khaiyum at a public meeting on the draft constitution in Suva. (Fiji Times, 5 April) “Yes, I will be running for election. Well I have to form a party if I have to run for election. I’m probably the only one that will stand in that party. I haven’t figured that one out.” Prime Minister Commodore Voreqe Bainimarama confirming what has been widely expected. (Fiji 1 News, 22 March) 6
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“We will give him our support to keep his leadership.” The military’s chief of staff, Brigadier-General Mohammed Aziz commenting that the force would want their commander to continue as prime minister after the 2014 general election, a comment that has left questions about whether the armed forces will respect the result of a democratic vote if Bainimarama is not elected prime minister. (Fiji Sun, 6 April) “Sa rui rarawa vaka levu na yaloqu niu sa sarava tu na tovo vaka manumanu sa caka tu vua na luvequ (My heart aches when I watch how my son was treated like a animal). Viriseini Sanawa, the mother of escaped prisoner Iowane Benedito, whose torture after his capture in November 2012 was filmed and leaked on the internet in March. (Fiji Times, 8 March) “A thorough investigation to establish the circumstances of this incident has been ordered. We can assure you all that we are determined to expeditiously resolve this issue and indeed our investigations have already commenced.” Fiji Police Force spokesman Atunaisa Sokomuri reading a statement pledging an inquiry into the torture video. Nothing further has been released by police since the investigation. (Ministry of Information, 5 March) “At the end of the day, I will stick by my men, by the police officers or anyone else that might be named in this investigation.” Bainimarama defending the actions of police officers in the Benedito torture. (Legend FM, 8 March) February-May 2013
briefing Government lawyer quits after period of turmoil
Acting Permanent Secretary for Justice Mere Vuniwaqa was at the forefront of the government’s overhaul of the political party and electoral system, making regular pronouncements as decrees were passed – and then were amended shortly after, sometimes more than once. Then several things happened one after the other between February and March. New rules were announced for who could be a politician and how political parties could function through the Political Parties Registration Decree. This was followed by an amendment brought into force on a weekend (16 February) making it illegal to call any party that had previously existed a “political party” unless they had successfully registered under the new decree (with $50,000 and/or five years’ jail maximum sentences for media organisations). Despite the seeming hurdles of registration, the former political parties were keen to get back into the political sphere. Parties which had applied for registration were to find out if their ap-
Acting Permanent Secretary for Justice Mere Vuniwaqa resigned citing “personal reasons.”
First new party Having abandoned its support of the former Fiji Labour Party, an institution it helped create, the Fiji Trades Union Congress has thrown its weight behind a new workers’ party – the proposed People’s Democratic Party. The proposed party has become the first non-established party to apply for registration under the new requirements. Listed as president is a former commerce minister Adi Sivia Qoro, while the secretary is former parliamentarian Poseci Bune. Also in support are lawyers, academics, former politicians as well as unionists. The proposed party says it believes in the core values of human rights, non-discrimination, social and economic justice.
plications were successful (some parties are now accused of corruptly seeking members). And in the same week in early March, a video leaked that went viral on the internet showing police officers torturing two men (story below). Then on 8 March, the day Vuniwaqa – as registrar of political parties – had earlier indicated successfully registered parties would be named, she resigned. The official explanation cited “personal reasons”. It is understood the Attorney-General Aiyaz Sayed-Khaiyum had asked Vuniwaqa to reconsider but she declined. A statement from SayedKhaiyum said Vuniwaqa had performed in an “exemplary manner”. Her resignation came during an incredibly busy period for Sayed-Khaiyum’s reforms. It also came weeks before the announcement of the government’s draft constitution and followed the dismantling – and changing of the rules of the game political party establishment in Fiji. n RICARDO MORRIS
No result in torture inquiry assaulted in the nine-minMore than two months ute video. after the emergence of Police spokesman Atua video showing the naisa Sokomuri promised torture of two men by an inquiry would follow police officers, no official standards such as those in statement has been made about the promised Escaped Korovou prisoner “Australia, South Africa, USA and New Zealand.” investigation. Iowane Benedito. But days later Commodore The contents of the Voreqe Bainimarama said video revolted most he would stand by his men, effectively Fijians although many were divided on ending any investigation. While pubwhether the violence was justified. But licly the police maintain an investigaglobally everyone from the UN human rights office down expressed shock over tion is ongoing, privately officers say this is not so. it. One torture victim was identified as Iowane Benedito, 24, who had escaped from Korovou prison in November. n Watch Sokomuri’s statement on the torture video: Benedito was physically and sexually http://tinyurl.com/SokomuriOnTorture
When I despair, I remember that all through history the way of truth and love has always won. There have been tyrants and murderers and for a time they seem invincible, but in the end, they always fall — think of it, always. Mahatma Gandhi, ‘The Story of My Experiments with Truth’, 1927
Fiji Women’s Crisis Centre | 88 Gordon St, Suva | Phone: 3313 300 / 9209 470 (24hrs) | www.fijiwomen.com February-May 2013
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pasifikapost Regional current affairs worth noting
The suppression of political protest in West Papua A new report by UK-based non-government organisation TAPOL challenges the Indonesian government’s repeated assertion that the country has “no political prisoners”. The report urges President Susilo Bambang Yudhoyono to open up democratic space in West Papua and order the release of all those jailed for expressing their legitimate opinions and aspirations. The 31-page report, No political prisoners? The suppression of political protest in West Papua, documents the cases of 40 detainees who were known to be in prison at the end of March 2013, challenging the government’s claim that there are no political prisoners in West Papua, but only criminals who have broken the law. “Papua’s political prisoners are not mythical characters – they are real men and women whose existence must be recognised,” said Paul Barber, coordinator of TAPOL. “If the government wants peace in West Papua, it should be talking to political leaders, not locking them up,” he said. The report is based on research and interviews conducted by TAPOL and data from papuansbehindbars.org, a new project initiated by civil society groups in West Papua and launched in the provincial capital, Jayapura, earlier this month. The report reveals that there were at least 210 political arrests in West Papua during 2012, but notes that the true number is likely to be higher as a number of arrests go unreported. At least 20 people were charged with treason under the controversial Article 106 of the Indonesian Criminal Code. 8
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poverty, isolation and stigma she experienced while her husband was in jail, saying, “I got really sick with malaria and it was awful. I had to sell all my clothes and blankets, and when I was sick I had no money to buy medicine – it’s very expensive here. When he was in prison nobody came here.” The publication of the report comes at a time when both national and international support for the release of Papuan political prisoners is growing exponentially, believes TAPOL. Grassroots campaigns in West Papua are generating increasing support from national and international civil society groups, and a number of states expressed concern about the situation during last year’s Universal Periodic Review (UPR) of Indonesia at the UN Human Rights Council. Arbitrary arrests Throughout 2012, arbitrary arrest of political activists was often followed by other violations of human rights and international standards, including torture and ill-treatment, denial of the right to a fair trial, and lack of access to proper healthcare and medical treatment. TAPOL reports that torture or illtreatment occurred in the case of at least 28 political arrests. At least four political activists were shot by police while allegedly resisting arrest – two of them fatally. Behind the bare statistics are human stories of the hardships faced by prisoners and their families. One woman interviewed in the report described the effect on her children when she was jailed for peaceful political activity, saying “While I was in jail my kids were like street children.” Mina (not her real name), the young wife of a political prisoner, told of the
Spotlight on Indonesia In just a few months, Indonesia’s progress on civil and political rights will be in the spotlight, when the UN Human Rights Committee will consider Indonesia’s first ever report on its obligations under the International Covenant on Civil and Political Rights. Given the growing weight of evidence on the detention, torture, ill-treatment and neglect of Papuan political prisoners, it will be difficult for the government to ignore them any longer. “For every political prisoner the government is ignoring, there are thousands of Papuans feeling hurt and disregarded. “Allowing Papuans the right to express themselves like any other citizen is a basic first step towards resolving the conflict,” said Barber.
n TAPOL/PACIFIC SCOOP. To download the report (PDF) use the link: http://tinyurl.com/WestPapuaTAPOLreport
FINANCIAL FITNESS Educating our community
PNG’s pandemic of violence Papua New Guinea must tackle the scourge of sorceryrelated murder, the United Nations has declared after an elderly woman was reportedly beheaded in the autonomous region of Bougainville. The UN demanded an end to extra-judicial killings linked to accusations of sorcery and renewed calls for the PNG government to repeal the Sorcery Act 1971, introduced to aid the passage of witchcraft cases through the courts. While the act criminalised the practice of sorcery, human rights groups say it has also led to an increase in false accusations by people against their enemies and has given the notion of sorcery a legitimacy it would not otherwise have had. “The provision of protection to victims of sorcery-related violence must also be increased as a matter of urgency,” the UN said in the statement from Port Moresby in April. “The UN is deeply disturbed with the increasing reports of violence, torture and murder of persons accused of practising sorcery around the country. “These vigilante killings constitute murder and must not be treated with impunity,” it added, relating “another horrific case” in the autonomous region of Bougainville. In the Bana district of South Bougainville two women accused of sorcery were kidnapped and tortured before one was beheaded. “This case adds to the increase of reports of extra-judicial torture and killings of both men and women, especially elderly women, accused of sorcery,” the UN statement said. “These reports raise grave concern that accusations of sorcery are used to justify arbitrary and inhumane acts of violence.” Local media had initially reported that both women were beheaded on Bougainville Island, where the novel Mister Pip by New Zealand author Lloyd Jones is set. Media noted that police were present but were outnumbered by an angry mob and could do nothing to prevent the grisly deaths. The women were tortured for three days, suffering knife and axe wounds, reports said. This was just days after six women accused of sorcery were reportedly tortured with hot irons in an Easter “sacrifice” in the Southern Highlands. In March, a woman accused of sorcery was stripped naked and burned to death by a mob (pictured). There is a widespread belief in sorcery in PNG and many people do not accept natural causes as an explanation for misfortune and death.
Take care of the cents...
ou may have heard the saying: “Take care of the cents, and the dollars will take care of themselves.” It’s true that while a few cents may seem inconsequential, over the long term they can add up to make a big difference!
Adrian Hughes General Manager Westpac Fiji
A budget is a simple and effective way to ‘take care of the cents’ and free up more of your money to spend on things that you really value, like education, a house or a car, or saving for your future. Budgeting is about knowing exactly what money s coming in, and how much is going out.
While creating a budget can be a scary thought, you may be surprised to hear that it’s as simple as following three easy steps: 1) Set yourself a weekly, fortnightly or monthly budget timeframe – it might be useful to base this on when you receive your pay. 2) Create a table with two columns labelled “Income” and “Expenses” and follow the instructions below: INCOME
In this column, list the income you receive from different sources. This could include wages, allowances, interest on savings, or any benefits or child support you may receive.
In this column, list all your expenses for the budget timeframe you have selected (weekly, fortnightly or monthly).
TOTAL INCOME: Add up all your income amounts above to obtain a final figure.
TOTAL EXPENSES: Add up all your expenses above to obtain a final figure.
3) Work out how much is left over by subtracting your Total expenses from your Total income. This will give you a figure which will tell you how much money you have to spare, and how much money you can afford to save towards your financial goals. If you find that your expenses exceed your income, then look at your budget and be honest with yourself about what you want and what you actually need. You may find you have more money than you think and can spare a little more money to save with! If you’d like to find out more about budgeting, feel free to attend our Financial First Steps workshop – one of Westpac’s free Financial Education courses being held in a community near you. Please drop into your nearest branch for more information. Best regards, Adrian Hughes.
This information is of a general nature and is prepared for your information and interest only. It does not constitute and should not be relied upon as financial advice. It is not intended to be comprehensive, and does not take account of the reader’s specific objectives, financial situation or needs. Before acting on this information you should consider its appropriateness having regard to your own objectives, financial situation and needs and seek specific advice tailored to your circumstances.
n Post-Courier/AFP/Pacific Scoop
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The great gay debate The Rising Ape with ALEX ELBOURNE
o be honest I don’t even see why the so-called gay debate is even a debate. It bemuses me that some people can get so worked up about what two consenting adults do in the privacy of their bedroom. Now, the usual response to that from those who hate “the gays” is that the Bible says it’s wrong. Ok then, let’s go down that road. And it’s a road this debate has gone down so often n the past it’s getting quite tiring by now. So let’s see what else the Bible says is wrong: n “Do not sow your field with two kinds of seed; nor put on a garment made of two different materials” – Leviticus 19:19. (Oh and by the way, the punishment for that is DEATH. Good times, eh lads!) n “Stone disobedient children” – Deuteronomy 21:18-21. (Hey, let’s be fair guys, we’ve all wanted to stone our kids to death at one or another…right? No? Ok then!) n “I permit no woman to teach or have authority over men; she is to keep silent” – Timothy 2:11. (Really need to remind the missus of this one.) n “But every woman that prayeth or prophesieth with her head uncovered dishonoureth her head...” – 1 Corinthians 11:5. (Yeah ladies, cover your head up in church yer hussies!!) And on and on and on. The point here is that the Bible was written a very long time ago under very different societal circumstances. Using those rules today would be disastrous. So, as time went on Christians became “cafeteria Christians” – they started to pick and choose what worked and what didn’t. And that’s fine; it’s all evolution (which is ironic considering the large number of Christians who don’t believe in evolution). So, if Christians have been fine with picking and choosing which segments of the Bible to believe for hundreds, if not thousands, of years why all the opposition to, in this case, gay marriage? Why pick on the gays? Ever heard of February-May 2013
something called “Haggard’s Law”? It’s an internet law that states that the more homophobic a person is, the higher the chance that person is a repressed homosexual. The law is named after Pastor Ted Haggard who some of you may remember from Trinity Broadcasting. The guy was a strong homophobe – and then he was caught. With another man. A masseur no lees. Sordid much? And it does seem to have some scientific basis. Check out the conclusion drawn by a 1996 study from the University of Georgia: Participants consisted of a group of 35 homophobic men and a group of 29 non-homophobic men. They were assigned to groups on the basis of their scores on the index of homophobia. The men were exposed to sexually explicit erotic stimuli consisting of heterosexual, male homosexual, and lesbian videotapes, and changes in penile circumference were monitored. They also completed an aggression questionnaire. Both groups exhibited increases in penile circumference to the heterosexual and female homosexual videos. Only the homophobic men showed an increase in penile erection to male homosexual stimuli. The groups did not differ in aggression. Homophobia is apparently associated with homosexual arousal that the homophobic individual is either unaware of or denies. (www. tinyurl.com/HomophobiaStudy1996) So, for all our little letters to the editor writers waffling on about how homosexual marriage is bad and should never be allowed because your version of a hateful God says so, you may want to do some soul (or otherwise) searching. And still on Christians… Jesus Christ said: “But I say to you that hear, love your enemies, do good to those who hate you, bless those who curse you, pray for those who abuse you. If you love those who love you, what credit is that to you? For even sinners love those who love them. And if you do good to those who do good to you, what credit is that to you? For even sinners do the same” Luke 6:27-32. “If anyone says, I love God, but hates the brothers or sisters, he is a liar...Who-
ever loves God must also love the brothers and sisters” I John 3:20, 21. Jesus’ followers: “Kill the Indian ... kill the gay ... kill the woman ... kill the ‘Other’ ... if it is not exactly like us, KILL IT! We are the best, there is none like us!” Woo hoo! Jesus was sooooo all about being superior to all others. If you don’t follow jebus, you aren’t really human. Where in heaven’s name did it all go wrong? How did a message of love get turned into such a message of exclusivity? I’m sick and tired of so-called Christians thinking that being a Christian means being a self-righteous, judgmental bigot instead of being someone who walks in love and towards love. Our churches don’t put enough emphasis on loving our fellow human being. If we’re all made in God’s image then loving them is loving God by default. Yeah, we’re unique…just like everyone else Every time we have something controversial happen, one of the common refrains is something along these lines: “Man, what’s happening to Fiji? This kinda thing is slack It’s not the ‘Fijian’ way” Blah! Blah! Blah! It’s time for us to stop deluding ourselves people. Fiji really isn’t that special. We’ve got major problems and these problems didn’t just spring up from nowhere. They’ve always been there; most of us just have the blinkers on when it comes to our country. All this nationalistic bullcrap sentiment about Fiji being ‘the way the world should be’ is just that...bullcrap. All this self-righteous indignation we work up when stuff happens. All this shallow posturing we all engage in we need to stop. It’s time to grow up. I love my country but does that mean that I blind myself to all that’s wrong with it? Hell no! Criticising something or someone you love because you care, isn’t wrong and maybe, just maybe, if more of us had the courage to critically analyse what the context is behind the issues in Fiji we could really make it the R way the world should be. n Alex Elbourne is the Breakfast Show host on Legend FM. The views expressed are his own. republikamagazine.com | Repúblika |
We the people? 12
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An insight into who really owns the draft constitution Having thrown out the people’s draft constitution laboured over by the Professor Yash Ghai-led commission, Fiji’s military-led government has written up its own draft document. A month has been given for public feedback, with Commodore Voreqe Bainimarama and his AttorneyGeneral Aiyaz Sayed-Khaiyum taking to the airwaves and to community meetings to explain and defend their draft. The Citizens’ Constitutional Forum published the following analysis of that draft.
he new Government Draft Constitution (GDC) is an ambiguous document – at times continuing the traditions of the 1997 Constitution (1997) and 2012 draft of the Constitution Commission (2012), while at others making major departures from the past. The GDC clearly satisfies many of the “non-negotiable principles” that the government established as the basis for the constitution-making process (decrees 57/2012, 58/2012). A secular state is defined as a founding principle in the GDC (see section 4). The electoral system provides for a version of ‘one person, one vote, one value’ based on proportional representation for all Fijians 18 years and older and does away with communal seats. The Bill of Rights includes many rights – including non-discrimination – previously provided in 1997 and 2012, as well as some new social and economic rights. Corruption is tackled in various ways by measures like entrenching the Fiji Independent Com-
mission Against Corruption (FICAC). Despite all these achievements in meeting the non-negotiable principles and values, the GDC falls short in at least four important ways. Hopefully the analysis below will contribute to efforts that the government will make to revise the GDC in the coming weeks as it seeks to realise all its aspirations to ensure Fiji becomes a “true democracy” founded on “respect for, and protection and promotion of, human rights.” First, the GDC concentrates nearly all executive authority in the offices of the Prime Minister and Attorney-General. Together they control nearly all appointments to the judiciary and independent commissions and offices (see box graphic), as well as senior state service and other appointments. The Prime Minister also controls the remuneration and removal of members of constitutional commissions and ‘independent’ constitutional office holders. Some crucial institutions provided for in 1997 and 2012,
All ears On 3 April 2013, the first political meeting of its kind in many years was held in Fiji. A grouping of political leaders calling themselves the United Front for a Democratic Fiji organised the meeting at the Fijian Teachers Association hall in Suva. About 250 people turned up to discuss the constitution being proposed by the government. February-May 2013
like the Constitutional Offices Commission and Ombudsman, have been removed entirely (see box graphic). There is an extreme concentration of power in the Prime Minister and AttorneyGeneral that is unprecedented in most modern, democratic constitutions, and dangerous for Fiji. Second, the otherwise impressive Bill of Rights comes at the expense of severe limitations on many rights. In general, a future government will no longer have to justify laws limiting rights before an independent court on the grounds that they are necessary in a free and democratic society (as in 1997 and 2012). Instead, the government will usually only have to show that the limitation is “reasonable”. In some cases (especially for labour rights) the standard is even lower. This effectively undermines the real value of nearly every right under the GDC. Social and economic rights are a partial exception. It is not clear, however, why these rights are formulated as an obligation on the State to “progressively” meet those goals rather than a “right” of every citizen (as in 2012). A final worry is that 4Continued on page 14 republikamagazine.com | Repúblika |
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the Bill of Rights will depend on the existence of an independent judiciary. Third, the GDC does not provide the necessary structural protections for the judiciary to be seen as independent. The Chief Justice and President of the Court of Appeal will effectively be political appointments. They will both be appointed* by the Prime Minister after consulting the Attorney-General and may be removed by a process controlled by the Prime Minister. This is rare in modern constitutions (and in 1997 and 2012) that seek to de-politicise judicial appointments. The Judicial Services Commission is a critical body to manage and discipline the judiciary, and so should be free from executive interference. However, the Commission in the GDC is composed of members appointed exclusively by the Prime Minister and Attorney-General. Also worrying is that the GDC (unlike in 1997 and 2012) does not allow appeals from military courts to the civilian courts. [*An appointment power vested in the President must be exercised in accordance with advice of a specified authority. If that authority is the Prime Minister, it is that office that has the actual power of appointment. This document will refer to the office that has the actual appointment power.] Fourth, there are very few avenues under the GDC for citizens to participate in and ensure “good and transparent governance”. Citizens have a right to attend parliamentary committees and to somehow participate in the making of government regulations (sections 47(2) and 71(1) (b)). However, all the 2012 provisions for public participation in government are removed. The GDC will also not include the Access to Information law included in 2012. It also did not include the 1997 requirement that Parliament pass such a law “as soon as practicable”. There are also two significant omissions from the GDC involving several other important issues affecting the “needs of Fiji and aspirations of its people”. First, women are not mentioned once in the GDC. Indeed, there are no positive duties on the State to promote participation of women or protect their distinct needs. Second, the land and governance rights of iTaukei, Rotuman and Banaban communities are no longer protected by the constitution. For example, 23 members of Parliament can vote to 14
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BAINIMARAMA’S DRAFT Following the trashing of the Ghai draft, Bainimarama said his legal officers, led by the AttorneyGeneral would draft their own. the government’s 8 Download draft constitution using this link: http://tinyurl.com/Fiji2013Draft repeal any law like the iTaukei Lands Act that protect these rights. All of these areas of serious concern with the GDC, as well as some of perhaps lesser significance, emerge from the chapter-by-chapter analysis which follows. As a final note, this analysis includes recommendations and suggestions to remedy drafting errors in what was surely the rapid process required to develop the GDC in the limited time available to the government. The final section highlights some of the most evident mistakes that can be easily remedied. The constitution-making process Significant changes to the previously provided constitution-making process were announced by the Prime Minister when releasing the GDC. They included: n Abolishing the Constituent Assembly (decree 58/2012); n Asking people to become the constituent assembly by making comments on that draft by no later than 5 April, with the government to then finalise the draft Constitution within seven days (by 12 April). There are a number of possible consequences of these changes that could make it difficult to ensure proper scrutiny of the new draft Constitution. First, it is now quite difficult for the people of Fiji to have an informed debate about the GDC. That document has emerged from internal government procedures that have not included anyone from outside. This is quite different from a draft emerging from a Constitution Commission that had held public consultation and published an explanatory report (as with 1997 and 2012), or from public debates of a Constituent Assem-
YASH GHAI DRAFT The Fiji Constitution Commission draft was never formally released. Prof Yash Ghai released it online himself. the Ghai draft 8 Download constitution using this link:
bly. The Prime Minister has announced that the government will publish “explanatory notes on each section, laying out what they mean in order to make it more understandable for ordinary Fijians”. But these will not be available until towards the end of the two week periods for comment. Second, a draft national constitution such as the GDC is a complex document, covering many technical issues, using a language with which most people are not familiar. Evaluation by technical experts is needed if the wider community is to understand the issues. It would be normal for many different interests groups to carry out their own technical evaluations of the aspects of the constitution of particular interest to them. The two weeks provided – including a long Easter weekend so valued by many Fijians – is not nearly enough time to intelligently digest, debate and respond to the GDC. Third, the request of the government for the people of Fiji to make submissions on the GDC gives the appearance of public participation and of testing public support. But not only is the period for participation far too short to enable real participation, the majority of the people of Fiji, living in rural areas and informal urban settlements do not have access to either the text itself or to technical assistance to help understand it. In addition, they do not have ready access to internet and other mechanisms needed to make submissions. As a test of public support, this limited consultation period and lack of technical analysis means it is not a fair test. Further, the process is open to manipulation, because it is not being manFebruary-May 2013
aged by an independent body. Instead it is being managed by a government which has a clear interest in the outcome of the consultative process. A legitimate test of public support, considering international standards, would involve at the least a far longer period of public debate and possibly a referendum. All of the factors just outlined indicate that the process for making the constitution will no longer provide for “full, inclusive and fair participation of all Fijians” as required by the Fiji Constitutional Process Decree 2012 (section The comeback Former politician Dr Tupeni Baba addresses the audience at the first meeting of the United Front 3(a)). As a result, there for Democratic Fiji in early April at the Fijian Teachers Association hall in Suva. are serious risks that any new constitution GDC is made law. Now that the Con- ally framed in words intended to inspire. emerging from this process will not be stituent Assembly is abolished, various Further, it can then be used by courts ‘owned’ by the people of Fiji. It may not decrees restricting public meetings and when interpreting the constitution, and have legitimacy. speech, and will come back into effect by government bodies in developing polElections by September 2014 The current government has repeatedly stated that “free and fair” elections will take place by September 2014 and this is confirmed in the GDC (section 166(1)). If elections are held under the GDC, it is difficult to see how they will meet the international standards for a ‘free and fair’ election. n In the transitional provisions, the Permanent Secretary responsible for elections performs the functions of the Electoral Commission and Supervisor of Elections until these officials are appointed under the GDC provisions (s. 166(2)). The Permanent Secretary is neither impartial nor independent. Even if new officers are appointed, they are also beholden to the (current) Prime Minister under the GDC appointment provisions. n The Bill of Rights in the GDC allows the government to limit labour relations and the freedoms of association, movement and expression for the “orderly conduct of elections.” This blanket ground for limitations will allow any government to severely and arbitrarily limit crucial rights during elections held under the GDC. n Even more worrying is that all the decrees will continue in force after the February-May 2013
and these decrees cannot be challenged for violating anything in the Bill of Rights in the GDC (section 169(4)). In addition, the Political Parties Decree severely restricts the rights to form political parties, and places particularly heavy restrictions on former political parties, as pointed out by the International Senior Lawyers Project. Given these grave concerns, it is difficult to see how ‘free and fair’ elections consistent with international standards can be conducted under the GDC. The same problems about meeting the requirements of the Fiji Constitutional Process Decree 2012 for “full, inclusive and fair participation of all Fijians” arise in relation to the conduct of elections. CHAPTER-BY-CHAPTER ANALYSIS
Preamble While a preamble to a constitution is usually not enforceable, it can still play important roles. It can state the way a country defines itself, as well as the country’s vision for itself. It can highlight the key principles and values underlying the constitution. To do all of this, it is usu-
icy etc. In that way a preamble can have significant influence. The 1997 Constitution, and the 2012 draft, provides examples of preambles that set out visionary statements, intended to be inspirational and to highlight principles. Amongst the principles that could have been expected to be emphasised in any 2013 Constitution would have been the non-negotiable principles in the Fiji Constitutional Process Decree 2012. The Preamble to the GDC is a rather pedestrian statement, lacking inspiration, and giving little recognition to principles, including key “non-negotiables”. In this sense it represents a wasted opportunity. There are also some obvious ironies in terms of what the Preamble does include. In particular, it talks of establishing the Constitution as involving “recognition and protection of human rights”. But as the discussion of Chapter 2 demonstrates, the provisions on rights involve significantly increased limitations on most of the rights contained in previous Fijian constitutions.
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Chapter 1 – The State The structure of Chapter 1 of the GDC reflects the equivalent chapter in 1997, while many of the provisions draw heavily on sections of the 2012 draft. For the most part the provisions are unexceptional. A few issues require brief comment. Secular State The provision on Fiji as a ‘Secular State’ (section 4) is clearly intended to meet the requirements of the “non-negotiable principles and values” in section 3(e)(ii) of the Fiji Constitutional Process Decree 2012. That provision also needs to be read together with section 22, on Freedom of Religion. Together those sections constitute positive provisions that establish a secular State that respects freedom of religion. Founding values The founding values of the State of Fiji set out in section 1 are admirable. In the main they are drawn from sections 1(1) and (2) of the 2012 draft constitution. However, part of the reason for the statement of such values in the 2012 draft is that guidance on how they were given effect by substantive provisions elsewhere in the draft. There are some values in section 1 of the GDC which are not reflected in substantive provisions. In particular: n In relation to independence of the judiciary (GDC, section 1(a)), its protection has been severely weakened, as discussed in relation to Chapter 5 of the GDC, below; n In relation to “civic involvement” (GDC, section 1(e)), provision in relation to civic life and the involvement of civil society in engagement with the state contained in the 2012 draft (for example, section 7(c) and (e), and sections 53-7) has been omitted from the 2013 draft; n In relation to “a prudent, efficient and sustainable relationship with nature” (GDC, section 1(h)), apart from provision on ‘Environmental Rights’ (section 37 – identical to section 38 of the 2012 draft), the more detailed and progressive provisions of the 2012 draft on ‘The Natural Environment’, ‘Principles of Land Use and Environmental Protection’, ‘Natural Resources’ (sections 10, 12 and 14) have been omitted. There is little point in bare statements 16
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of values with no elaboration about how they are to be given effect. Languages of Fiji There is no provision in Chapter 1, or anywhere else in the GDC, concerning languages of Fiji. Various provisions on languages have been included in past Fiji constitutions. In a multi-ethnic state such as Fiji, there are symbolic and practical reasons for giving recognition to the key languages of the various communities, and ensuring that government is required to respect the interests of different communities in maintaining and making use of their languages. The 2012 provision to allow English, Fijian and Hindi in Parliament is not included. Prohibiting coups and immunities The provision against future coups (section 2(4)) is taken from the 2012 draft (section 2(3)). There are major ironies, and inconsistencies here, particularly in respect of the provision against immunities for anything done in furtherance of an attempt to establish a government other than in compliance with the Constitution. If such immunities should not be granted in such cases, it is difficult to see why comprehensive immunities of precisely this kind are granted in Chapter 10 of the GDC.
Chapter 2 - Bill of Rights The Bill of Rights in the GDC includes many of the same rights as in 1997 and the 2012 draft, as well as several new socio-economic rights. At times the GDC improves on formulations in earlier constitutions (including the 2012 draft) – for example the rights are extended to bind all public office holders (section 6). In general, however, rights under the GDC are more severely limited and restricted than in 1997 and 2012. This leaves most rights open to arbitrary or at best “reasonable” restrictions by future governments. Limitation of Rights The GDC sets out the specific purposes for which a particular right or freedom may be limited (as in 1997). Most worrying is the removal of the requirement that any limitation for a right be “reasonably justifiable in a free and democratic society”. Under such a provision (as in 2012), the State must justify to a court any law limiting most civil and political
rights on this basis (civil and political rights including freedoms of expression, assembly, association, movement and rights to unrestricted labour relations). The approach means that in the end the independent judiciary can act as a check on action by Parliament to pass laws to restrict rights. The GDC approach is at odds with most modern constitutional human rights instruments, which include few (if any) specific limitation provisions and instead rely on general provisions setting out the grounds upon which all rights and freedoms may be limited (like 2012). Any limitations in this system must be justifiable as “necessary or reasonable in a democratic society”. Most rights in the GDC include a subsection limiting the right described for certain legitimate aims. The problem with this approach is that it grants future governments broad grounds on which to limit these rights. For example, the right to environment may be limited by any law (section 37). This means that any future government can use an ordinary Act of Parliament to limit environmental rights as far as they wish without needing to justify the limitation. The civil and political rights under the GDC are similar to 1997, but in a number of instances the list of possible limitations is longer, and in most instances the absence of any “must be justified in a democratic society” provision takes away much of what has been recognised as a right. The State is given the right to do most of what it might want to do, without the courts being able to say this was unnecessary or excessive. Unlike earlier constitutions (and to some extent 2012) there is little recognition that sometimes the protection of culture and community might justify limits in individual rights (like rules about participating in village cleanups, or laws restricting movement in some areas to protect culture). As an extreme (and disturbing) example, the right to life (section 8) is limited because the right is not protected in any case of deaths “from the use of force which is no more than is absolutely necessary” in three sets of circumstances: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) in action lawfully taken for the purpose of quelling a riot or insurrection. This section is taken from article 2 of February-May 2013
the European Charter of Human Rights, but very few democratic constitutions permit deprivation of life in their own bill of rights. This limitation is also a major departure from 1997 and 2012. Labour rights in particular are severely restricted in the GDC. The government may limit the right to freedom of association to regulate: (a) the registration of trade unions and similar bodies, (b) collective bargaining processes, and (c) essential services and industries (section 19(2)). Such broad limitations on labour rights are rare in other democratic constitutions. They continue restrictions set out in decrees, which have been strongly criticised by the International Labour Organisation. The Bill of Rights allows extra grounds for limitations in the case of elections and states of emergency. To ensure the “orderly conduct of elections,” the GDC also permits limitations on labour relations and the freedoms of association, movement and expression. This unrestricted authority to limit specific rights may allow a future government to restrict political parties and citizens for reasons other than those “reasonably justifiable in a free and democratic society.” It is difficult to see how this is consistent with a commitment elsewhere in the GDC to “free and fair elections” (sections 49 and 74(2)) or to the creation of a “true democracy”. February-May 2013
Limitations During a State of Emergency In a state of emergency, all rights (other than a few prescribed ones) may be limited to the extent “strictly required by the emergency” (section 40). This places some checks on the government’s authority to limit rights, but this is not as strong as a requirement that the limitation be reasonable and justifiable in an open and democratic society. Without a more clear limitation clause, there is potential for greater abuse of rights during a state of emergency. Application and interpretation The Bill of Rights applies to all branches of government (1997 and 2012) as well as public officials (section 6). The rights also have horizontal application. Courts interpret the Bill similarly to 1997 and 2012, but no longer must consider relevant international law (as required in 2012). The GDC also does not include either a right for courts to consider laws in “open and democratic societies” or a recognition of customary law (as in 2012). Most such rights do, however, include an obligation on the State to “take reasonable measures within its available resources to achieve the progressive realisation of the right”. The State must do things to fulfil the rights. But there is no clear statement (as in 2012) that people have these rights. Courts will have to determine whether the State has proved it does not have resources. However, it remains unclear what remedies are available to courts to compel the State to redress any unjustifiable failures.
Having his say Former politician Mick Beddoes addressing a meeting of the United Front for a Democratic Fiji on 3 April. The ufdf, a grouping of former politicians, has rejected the government’s draft constitution.
Enforcement The courts have a key role in upholding the Bill of Rights, with judges required to exercise their independence and objectivity in adjudicating claims about the validity of the actions of other branches of government. There are grave concerns, discussed below, about the structural independence of the judiciary in the GDC. Without an independent and impartial judiciary, there may not be a strong check against violations of the Bill of Rights by a government. Enforcement also includes a significant role for the Attorney-General, which is problematic because of the concentration of power in that office, as discussed below. Human Rights and Anti-Discrimination Commission The Commission is a continuation of the body created by decree (11/2009) (section 42). However, there is no provision for how it will be composed. In the decree the Commission includes a chairperson appointed by the President after consulting the Prime Minister and two other members appointed by the Prime Minister. In 1997 the Commission was composed of the Ombudsman 4Continued on page 18 republikamagazine.com | Repúblika |
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as chairperson, plus two others (one of whom had to be qualified to be a judge) appointed by the Prime Minister after consulting the Leader of the Opposition and the House sector standing committee for human rights. In 2012 the Commission members were appointed by the Constitutional Offices Commission. If the GDC does not state the composition of the Commission, then Parliament may alter it at any time by law. Otherwise the Commission has similar authority to 2012 except that it is restricted to making recommendations only to government (the Prime Minister) and not to all public bodies (section 42(2)). As a final point, the Bill of Rights does not mention: n the rights of women, or n cultural, linguistic or religious rights, or n Customary rights.
Chapter 3 – Parliament Parliament The legislature consists of a 45-member Parliament. There is no Senate (1997) or National People’s Assembly (2012). Parliament has a four-year term, similar to 2012, unless dissolved after at least 3.5 years by the President on the advice of the Prime Minister (section 56). Most internal checks on Parliament have been removed in the GDC draft. For example, the Secretary-General to Parliament is appointed by the Prime Minister (section 78(2)) and the members of Parliament pass a law to determine their own salaries (section 79). In contrast, under the 1997 Constitution, the SecretaryGeneral was appointed by the Constitutional Offices Commission after consulting the Speaker. In both 1997 and 2012, an independent commission set the salaries of Parliament members (2012, section 161; 1997, section 83). The GDC also undermines the role of the Leader of the Opposition, who now has very limited constitutional roles, namely: (a) introducing a resolution for the early dissolution of Parliament, (b) appointing one of the five members of the Electoral Commission, (c) nominating a candidate for President. Parliament must make its meetings open and facilitate public participation, but this is no longer a citizens’ right as 18
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it was in 2012. The Speaker can exclude the public in exceptional circumstances on “reasonable and justifiable” grounds, while in 2012 such an exclusion also had to be justifiable in an open and democratic society based on human dignity, equality and freedom. Any regulations made under the authority of the Constitution or a law must provide for public participation, as far as is practicable (section 47(2)). Elections Under the GDC, members of Parliament are elected by secret ballot in “free and fair” elections administered by the Electoral Commission (section 49). An electoral law must set out the details of elections based on a multi-member, open list proportional representation system where “each voter has one vote, with each vote being of equal value” (section 50). Like 2012 there are four electoral divisions: Central with 18 members; Western with 16; Northern with 7; and Eastern with 4. The Electoral Commission may alter the number of members and the distribution of seats in the divisions, which are then deemed to amend the Constitution (section 51(4) and section 52(5)). All Fijian citizens 18 or over may register to vote except for those: (a) serving a prison sentence of 12 months or longer, (b) of unsound mind, or (c) disqualified for an election offence (same as 1997). All those nominated by a registered party or registered as an independent may stand for elections if they meet the following conditions (section 54): n Fiji citizen (same as 2012), but also not a dual national, n registered voter, n ordinarily resident in Fiji (same as 2012), but also must have lived here for past two years, n not a member of Electoral Commission for last four years (same as 2012), n not subject of imprisonment of more than 12 months when nominated (same as 2012), n not been imprisoned for offence related to dishonesty or violence during the past five years (same as 2012), plus any abuse of office, corruption or sexual offence, n not guilty of an offence against election law, registration of parties or voters. The most important change is that all elected or paid officials in trade unions are deemed to have vacated their offices
after submitting their nomination as candidates (section 55(3)). This means that any trade union leader must sever at least official ties with their unions before contesting an election. A final point concerns open list proportional representation in the Fijian context. The GDC leaves the details of the system to future legislation. To avoid manipulation by future governments, it might be worthwhile setting out further criteria for this electoral system. Two main problems that the current provision does not provide for include ethnic voting and women’s participation. First, there are no constitutional restrictions on ethnically-based voting or parties organised on an ethnic basis. While this is included in decrees and possibly in a future electoral law, any future government can amend the electoral law and decrees to remove this restriction. Second, as Fiji’s history has shown, women are greatly under-represented in any electoral system that does not provide for quotas in some way. The cost of a commitment to an open list system is to effectively exclude women from participating fully as candidates for political parties. Electoral Commission The Commission is responsible for registering voters and conducting “free and fair elections”. Under the GDC it is dominated by appointments of the Prime Minister. Unlike the 2012 draft, there is no provision for an interim body of non-political and international members to supervise the first election. The Supervisor of Elections is appointed by the Prime Minister after consulting the Electoral Commission (section 75(4)). This is likely to result in far less independence than the 1997 Constitution, under which the Constitutional Offices Commission made that appointment.
Chapter 4 – The Executive President Under the GDC the President is the Head of State, vested with the “executive authority of the state” as in 1997 (section 80(1)). But there is no Vice-President. The criteria for selecting the President is similar to 2012. The President is appointed after a vote in Parliament for two candidates, one each appointed by the Prime Minister and Leader of the Opposition (section 83). In 1997 the Bose Levu Vakaturaga (Great Council of Chiefs) February-May 2013
appointed the President after consulting the Prime Minister, and in 2012 the President was elected by the National People’s Assembly. The President may serve two three-year terms, in contrast to two five-year terms in 1997 and one fouryear term in 2012. If the President cannot perform his or her duties, the Chief Justice steps in (section 87) as opposed to the Vice-President in 1997 and the Speaker in 2012. The President can only be removed for inability or misbehaviour by a tribunal appointed by the Chief Justice at the Prime Minister’s request. The Prime Minister must act on advice of this tribunal (section 88). This is a similar procedure to 1997. Prime Minister and Cabinet The Prime Minister is elected by Parliament (section 92) as in 2012 and similar to 1997. The Prime Minister directly appoints and dismisses Ministers (section 91). All Ministers must be from Parliament (section 94) (though special provisions apply to the office of Attorney-General – below). There is no requirement for a multi-party Cabinet (as in 1997). As in earlier constitutions, Cabinet is individually and collectively responsible to Parliament and must have its confidence (sections 89-90). The process for a no-confidence vote in Parliament is similar to that in 2012 (section 93). Attorney-General The Attorney-General is “the chief legal advisor of Government” and a Minister in Cabinet (section 95(1)) (same as 1997). The Attorney-General must be February-May 2013
The lady The paramount chief of Rewa, Na Roko Tui Dreketi, Ro Teimumu Kepa leads her tribal elders to present a petition against the government’s draft constitution at the Attorney-General’s office in Suva on 4 April. a Member of Parliament who (section 95(2)): n is admitted as legal practitioner in Fiji (same as 1997), including a minimum 15 years of practice, n was not found guilty of any proceeding before the Independent Legal Services Commission, or earlier laws for barristers and solicitors. If no member of Parliament meets these criteria, the Prime Minister may appoint someone from outside Parliament (section 95(3)-(4)). They become a Minister and may sit but not vote in Parliament (similar to 1997). This is a dangerous and circular system since the Attorney-General controls the Independent Legal Services Commission, the same body that disqualifies potential candidates from Parliaments. The 2012 draft omitted provision for an AttorneyGeneral.
Chapter 5 – Judiciary Independence of the Judiciary This chapter reflects the same remarkable degree of concentration of power in the hands of the Prime Minister and the Attorney-General found throughout the GDC. This is a major factor in a high degree of political control of the judiciary and a seriously inadequate level of protection for its independence.
In modern constitutions it is normal to provide for a non-political appointment process for all judicial offices, including the highest office, usually the Chief Justice. The independence of that position is of particular importance because it often exercises significant powers, in both major judicial decisions and in respect of other judicial appointments. But under the GDC the two highest judicial offices (Chief Justice and President of the Court of Appeal) are political appointees. The Prime Minister appoints them after consultation with the Attorney-General, and the process for their removal is initiated by the Prime Minister. There are several other troubling provisions in the GDC. First, any judge (including a Chief Justice or President) who is not a Fiji citizen serves only for maximum three-year terms. This could open a non-citizen Chief Justice or President of the Court of Appeal to additional political pressures. Second, the Judicial Service Commission (JSC) established under section 103 is to be the main body making appointments, and removing and disciplining, of judges, magistrates, court officials (registrar, masters etc.), and also controlling all non-judicial officers working for the courts. All such appointments will be made only after consulting the Attorney-General. In modern constitutions, the independence of bodies such as the JSC is normally protected through provisions on their composition. For example: n JSC members usually reflect a range of interests, including the professional body for lawyers; n A majority of JSC members are usually not government appointees (the process for their appointment not being controlled by government); n There is usually strong constitutional protection from direction and control of the JSC by government. But under the GDC: n All JSC members are government appointees. The Prime Minister has authority over appointment of three members (the Chief Justice – who is chairperson of the JSC – and the President of the Court of Appeal, and the Permanent Secretary of the Department of Justice), and the Attorney-General appoints the other two members. n While one of the latter two appointees must be a lawyer, there is no provision for Law Society representation. This 4Continued on page 20 republikamagazine.com | Repúblika |
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is a most unusual omission. Because judicial appointees must normally be senior legal practitioners, there are good reasons to include legal profession representation in the institution making judicial appointments. n The freedom of the JSC from direction and control is far from clear. No provision for its independence is included in the section establishing the JSC (section 103), and the protection offered by section 147(5) extends only to the two members of JSC appointed by the Attorney-General, and not to the JSC itself, or to the Chief Justice, the President of the Court of Appeal or the Permanent Secretary when they sit as members of the JSC. This lack of certainty about independence may well be just a drafting error, but if so, it needs attention. n In exercising its powers over appointments of judges, magistrates etc, the JSC must always consult the Attorney-General, a requirement that opens the appointment process to political considerations. It is most unusual for the JSC to have control over all non-judicial officers working for the courts. Such officers would normally be treated in the same way as any other public servant. This extension of the powers of a JSC that is subject to a high degree of political control raises further concerns about that control. Courts and Accountability of Government The High Court, the Court of Appeal and the Supreme Court all play important roles in keeping government accountable. Key roles include interpretation of the Constitution, and handling appeals from decisions of lower courts. The GDC limits the role of these courts in relation to constitutional interpretation compared to 1997 (section 123) and 2012 (section 120). The result could be a considerable reduction in the extent to which government is subject to judicial scrutiny. Further, the 2012 draft sought to ensure that Fiji military courts are subject to scrutiny by the normal courts of appeal (section 126). In this way an important aspect of military powers would be subject to judicial scrutiny. It is regrettable that this provision has been omitted. Fiji Independent Commission 20
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Against Corruption It is not clear why the Fiji Independent Commission Against Corruption is provided for in the chapter on the Judiciary (section 114), as it is not a judicial institution, but rather (for the most part) an institution intended to achieve accountability. The provision would be better located in chapter 8 (Accountability and Transparency). Director of Public Prosecutions It is also not clear why the DPP is provided with a degree of protection of independence so much stronger than any other institution. The office is not subject to control by a court, or by provisions elsewhere in the Constitution or provided by other law (section 116(1)). By contrast, the freedom from control of other institutions whose independence is protected are open to such limits (sections 113(5), 114(7) and 147(5)). Independent Legal Services Commission Most unusually, the draft Constitution includes provision for the Independent Legal Services Commission. It is an institution established by decree (16/2009) with extensive powers over the legal profession. Its head is a political appointee (appointed by the AttorneyGeneral). These arrangements involve a high degree of government control of the legal profession. A democratising Constitution would have been expected to move away from political control of the legal profession. Errors There are some errors in the chapter. For example, section 97(3)(c) gives the Supreme Court jurisdiction to deal with “constitutional questions referred under” section 90(6), when in fact the correct provision appears to be section 90(5).
Chapter 6 – State Services Concentration of Power There is a high degree of control concentrated in the office of the Prime Minister, consistent with much of the rest of the draft Constitution. That office appoints, or has a key role in appointment of, almost all key officials involved in management of the state services. This is a significant change from 1997, when the Cabinet was the appointing authority for most such offices. The offices in question in the 2013 draft include:
1. The Chair and other members of the Public Service Commission (PSC) (section 121(2)); 2. All permanent secretaries (although appointed by the PSC, the Prime Minister’s agreement is required) (sections 122(1) and 123(4)); 3. Ambassadors (section 124(1)); 4. Members of the Public Service Disciplinary Board (section 127(2); 5. The Commissioner of Police (section 128(4)); 6. The Commissioner of Corrections (section 129(4)); 7. The Commander of the RFMF (section 130(3)). Political Control of Public Service Agencies Another significant area of concern involves the political control that ministers will have over the state services. In particular, the 2013 draft requires the agreement of the minister responsible for any particular ministry before the permanent secretary can make decisions on terms and conditions of employment, qualifications for appointments and processes of appointment, salaries and benefits, etc (section 123(7)). Further, the ministers for police and correctional services can give general policy directions to the Commissioner of Police and the Commissioner for Correctional Services, respectively. Accountability and Control of the RFMF Both 1997 and 2012 aimed to provide some accountability by the RFMF to the February-May 2013
Chapter 8 – Accountability and Transparency
elected government. The 2012 draft provided for a National Security Council to “exercise civilian oversight of the security services”. The GDC does not make provision for accountability of the RFMF to the elected government. It is most unusual that the Prime Minister is made the Commander-inChief of the RFMF (section 91(2)) and sole authority to appoint the Commander. Under past Fiji constitutions, the President was made commander-inchief (1997, section 87), but that was under constitutions where the President’s roles were largely ceremonial. In this case, the office of Prime Minister has already been made remarkably powerful, severely undermining past roles played by Cabinet. So the vesting of this authority in the PM is clearly intended to add a significant element to the PM’s powers. As commander-in-chief, the PM is likely to have the authority to direct the Commander of the RFMF appointed under section 130(3), a person who will also be appointed solely by the PM. These arrangements will place the military under direct control of the PM, and are likely to politicise both the office of commander and the RFMF. The military should be part of the security structures of the state, protecting the state and its interests. Placing it under the control of the PM is likely to result in the military identifying more with the government of the day, rather than the state. There is a serious risk of not just politicising the military, but also of personalising military power. February-May 2013
On the march Clan elders from Rewa walk along Albert Park in Suva to join their paramount chief Ro Teimumu Kepa on 4 April in a petition against the government’s draft constitution.
Chapter 7 – Revenue and Expenditures All revenue raised for the State must be paid into a Consolidated Fund other than exceptions provided by law (section 132) – same as 1997). If no appropriations act is passed, the Minister for Finance may authority up to a third of the last budget to cover ordinary government expenditures (section 134) – similar to 2012). There are standing appropriations of the Consolidated Fund for the President, judges, and all members of commissions and independent offices except members of the Independent Legal Services and Judicial Service Commissions. Also, the Commander of the RFMF is included on this list for the first time. The GDC does not include several specific protections contained in the 2012 draft. No act of Parliament is required for the state to borrow money (2012, section 157). Parliament is also not required to enact a law to “ensure expenditure control, transparency and independent internal audit mechanisms in government” (2012, section 158). Instead, the GDC adopts the less strict 1997 requirement to account for monies on accepted principles of the private sector (1997, section 182).
Accountability and Transparency Commission The Commission is composed of a chairperson, a qualified judge, and two other members all appointed by President after consulting the Prime Minister and Chief Justice (section 141). This is a strange provision since nowhere else does the President have the authority to act on his or her own discretion. Parliament must pass a law to establish rules for (sections 141-2): n a Code of Conduct for public office holders (like 2012), n monitoring procedures and powers to enforce violations by criminal and disciplinary proceedings and removal of office, n protecting whistle-blowers, and n requirements for public officials to disclose assets, liabilities and financial interests. Freedom of information Provision is made for Parliament to pass a law to allow the public to exercise their right to access information (section 142). This is the same as 1997 except that there is no longer any requirement for the law to be passed “as soon as practicable.” The GDC also does not include the Access to Information Law that would have come into force immediately after the Constituent Assembly adopted the 2012 draft. This is a problem since citizens will have no way to exercise their right to access government information until whenever Parliament decides to do so in the future. Auditor-General The Auditor-General is responsible for inspecting and reporting on the finances of the state (section 143). The office is appointed by the Prime Minister after consulting the Minister for Finance. In 1997 and 2012 the Constitutional Offices Commission appointed the Auditor-General. Reserve Bank of Fiji The Governor is responsible for protecting the value of the currency to ensure economic growth (section 145). The Prime Minister appoints the Governor af4Continued on page 22 republikamagazine.com | Repúblika |
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ter consulting the Minister of Finance. In 1997 and 2012 the Constitutional Offices Commission appointed the Governor after consulting the Minister for Finance and the Board of the Reserve Bank. No provision is made for the independence of the Governor of the Reserve Bank. General provisions for public offices The term limits for “independent” officers and commissioners are set at three or five years with the possibility of re-appointment (sections 146-7 – similar to 1997). The Prime Minister controls the process of their remuneration and removal. For remuneration, the Prime Minister sets salaries and allowances – which may not be reduced while any one is in office – on advice of a committee that he or she appoints (section 148). The Prime Minister may also appoint a tribunal to remove any of these officers or commissioners on grounds of inability or misbehaviour and must act on the advice of the tribunal (section 149). In 1997 and 2012, remuneration was set by Parliament. The Constitutional Offices Commission (or occasionally the President) controlled the removal process.
Chapter 9 – Emergency Powers The Prime Minister may declare a state of emergency on the recommendation of the Commissioners of Police and the Republic of Fiji Military Forces if: n the security and safety of Fiji is threatened, and n this is necessary to deal with the threat (section 151(1)). In contrast, the power to declare such a state was granted to Cabinet by legislation in 1997 and Cabinet on recommendation of National Security Council in 2012. In the GDC the Prime Minister must refer the declaration to Parliament within 24 hours if it is sitting or 48 hours if out of session for confirmation. If a majority approve it, the state of emergency is extended for one month renewable by new votes. This is an extremely dangerous chapter since it grants the Prime Minister and a majority in Parliament the authority to impose and maintain a state of emergency – possibly forever. The GDC does not expressly provide for an external check on the emergency authority of the Prime 22
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Minister. It is possible for the Prime Minister to prorogue a pliant Parliament indefinitely under a state of emergency. In contrast, 1997 and 2012 include significant checks against indefinite states of emergency. In 1997 the House of Representatives could end the state of emergency at any time by a majority vote. The Prime Minister also could not extend the term of the House for longer than 12 months past its scheduled election date. In 2012 two-thirds of Parliament must approve the declaration, which is granted for three months. There were two further checks against unjustified declarations of states of emergency. First, all government actions taken and regulations made during state of emergency must be consistent with international obligations. Second, the Supreme Court could terminate the state of emergency, on application by any person, if circumstances did not justify the declaration.
Chapter 10 – Immunity Immunity is entrenched (“shall not be reviewed, amended, altered, repealed or revoked”) for all actions: n taken by the military and police from 1987 to 1990 (Constitution 1990, chapter 14) (section 152), n taken against the elected governments by the military in 2000 and 2006 (Decree 18/2010) (section 153), and n taken by public officials from December 2006 until first sitting of Parliament after elections are held under the GDC (section 154). The 2012 draft grants the same immunities, but only to those individuals who take the Oath or Affirmation of Reconciliation and Allegiance. In contrast to the GDC, it does not entrench the immunity clause against repeal or amendment.
Chapter 11 – Amendment of Constitution The GDC may only be amended by a bill passed three times in Parliament and by three-quarters of members supporting the last two votes. The Electoral Commission must then hold a referendum on the proposal, which three-quarters of voters must approve (section 157). The requirement for these super-majorities in Parliament and a referendum is problematic for at least two reasons. First, the GDC makes no distinction between technical
amendments (to correct inconsistencies, typos, etc) and substantive amendments (bill of rights, government powers, etc). Many technical changes are likely to be necessary due to the limited time available for drafting the GDC. Passing such amendments will now require the huge expense and time of both multiple parliamentary votes and referenda. Second, the requirement for a double super-majority will make the GDC one of the most difficult constitutions to amend in the world. In the future, it invites constitutional crises and, possibly, risks further coups.
Chapter 12 – Commencement, Interpretation, Repeals and Transitional The most significant provisions are in ‘Part D – Transitional’. Two aspects of those provisions are of considerable concern. Current government to remain in office till after 2014 elections The GDC provides for the current government to remain in office until the first sitting of the new Parliament following the 2014 elections. That is not consistent with the need for free and fair elections to establish a democratic government. It is likely to be contrary to the Fiji Constitutional Process Decree 2012, which: (a) provided that the new Constitution should include provisions designed to achieve “true democracy” (section 3(d)); (b) included among the “non-negotiable principles” for the new Constitution a requirement for “good and transparent government”. In a situation where elections are being held for the first time eight years after a coup, a period in which there has been a military regime in power, free and fair elections will only be possible if there is provision for the government in office to stand aside for a reasonable period before the elections are held (as was provided for in the 2012 draft). Without such provision, there is a strong likelihood of the government using its powers to its advantage and to the disadvantage of perceived opponents. Even if government does not do that, the fear that such things may occur can be expected to be enough to make it difficult to have a free and fair election. February-May 2013
Most decrees and promulgations to remain in force All save five of the promulgations and decrees passed since 2006 (those listed in section 160) will remain in force “in their entirety”, even if they are inconsistent with the 2013 draft Constitution (section 169(2)). While the new Parliament will be able to amend such decrees etc0, amending laws will not be able to have retrospective effect, nor “nullify any decision made” under the decrees (section 169(3)). No challenge to the validity of the decrees will be possible in any court (section 169(4)). At the very least the transitional arrangements should ensure that provisions of decrees that are inconsistent with the Constitution can be challenged. The most likely basis for such challenges would be breaches of human rights. It is most unusual for a constitution to prevent challenges to laws alleged to have breached human rights. The provisions in question are likely to be contrary to the same requirements of the Fiji Constitutional Process Decree 2012 just mentioned.
Omissions and technical points Women The GDC is silent on the rights of women except for including “gender” as a prohibited ground for discrimination. Not one of the many 2012 provisions to protect women’s rights and promote women’s participation are included in the GDC. Even the 1997 provisions for affirmative action for women (sections 6(k), section 134 and section 140(c) are excluded from the GDC. Women can also expect to be greater under-represented in any open list electoral system that does not include quotas. There is a danger that women will be excluded from parliamentary politics in the name of “representative” democracy. Land rights and indigenous rights The GDC is also silent on land and indigenous rights, which has several implications. First, there is no constitutional protection for any law on iTaukei, Banaban and Rotuman land and governance. In contrast, the 1997 and 2012 drafts provided special entrenched protections for key laws, including the iTaukei Lands Act, iTaukei Land Trust Act, Rotuman Lands Act, Banaban Lands Act and Agricultural Landlord and Tenant Act. Under the GDC, all these laws may be amended February-May 2013
by a simple majority in Parliament. Second, there is no recognition of “customary law,” so it is no longer protected as it was in 1997 and 2012. Third, there is no constitutional requirement that land owners or customary fishing rights beneficiaries receive an equitable share of royalties to mineral exploitation. Last, the government has no constitutional duty to consult with land owners for any development projects. The GDC does include the 2012 right to a clean and healthy environment and freedom from the arbitrary expropriation of property (however the GDC adds several new grounds for expropriation of property). Local government Local government is not mentioned anywhere in the GDC. This means that there are no constitutional guiding principles on local government issues. Local government bodies of all kinds can be created by ordinary legislation, without reference to any constitutional requirement. All iTaukei, Rotuman and Banaban laws are not protected in the constitution. This means that they can be amended or repealed like any other ordinary legislation. Drafting issues There are a number of inconsistencies, mistakes and other drafting problems in the GDC. The most likely reasons for these problems are: (a) that it has been drafted quickly, and (b) that its primary sources include a number of existing documents, such as the 1997 Constitution, the 2012 draft Constitution, various decrees made since 2006, the European Convention on Human Rights, and other sources, which are not always consistent with one another. There are many instances of such issues, and so just a few examples are provided here: n On horizontal application of rights, sometimes the drafters of the GDC pasted directly from 1997 without realising that the right in question was already extended horizontally by the general provision. For example, the “right of access, without discrimination on a prohibited ground” to public places like shops or restaurants is already covered by the general provision (section 26(5)); n Provisions on the powers of the President, where although section 81 states that he/she “acts only on the advice of Cabinet” or other specified authority, other sections make contrary provision
(for example section 117(2)(b) empowers the President to make appointments to the Mercy Commission “acting in his or her own judgment”, while section 141(2) empowers appointments to the Accountability and Transparency Commission “following consultation with the Prime Minister and the Chief Justice”); n There are three different formulations about the protection of the independence of constitutional commissions and offices (see section 116(10) for what seems to be the highest level of protection, as opposed to sections 113(5), 114(7) and 147(5)) which involve two slightly different formulations offering a lesser degree of protection); n It is not clear what is intended by the numerous provisions in relation to commissions and offices that continue in existence bodies or offices established by promulgations or decrees made since 2006; n While most of those provisions then go on to provide for the composition and powers etc of the commission or office in question, the Human Rights and AntiDiscrimination Commission (section 42) is an exception, where the absence of a provision in section 42 on the composition of that body would mean that it would always be necessary to refer to the Human Rights Commission Decree 2009 to know the membership of that constitutional commission; n The reference in section 97(3)(c) to the Supreme Court having authority to deal with constitutional interpretation questions referred under section 90(6) is a mistake, as there is no such section, it probably being intended to refer to section 90(5). Two important substantive issues arise here. The first concerns the time available to make comments and submissions on the GDC. In the days since the GDC was released, those preparing this analysis have not had time to complete a thorough examination of every aspect of the GDC. There are certainly many other errors and inconsistencies in the GDC. Much more time will be needed if the government is to be assisted in improving the draft. The second issue concerns the process for amendment of the GDC (chapter 11). The presence of the mistakes and inconsistencies highlights the problems with the very inflexible amendment process, as discussed in the analysis of chapter 11 R (above). n This piece was commissioned and first published by the Citizens’ Constitutional Forum in March. Reprinted with permission. republikamagazine.com | Repúblika |
Suggestions to strengthen draft By SHAISTA SHAMEEM
he draft 2013 Fiji Constitution released on 21 March by the Prime Minister is, undoubtedly, marginally an improvement on the Yash Ghai draft constitution. The Yash Ghai constitution had proposed an election of the Head of State by an undemocratic body, the National People’s Assembly – a body which would have become more significant than even the elected parliament in Fiji. However, to its credit, the government’s draft constitution 2013 retains the solid Bill of Rights chapter from the 1997 Constitution and adds other protections now reflected in international law such as children’s rights, rights of people with disabilities, and economic and social rights which are all justiciable (this means an application can be made directly to the High Court or to the Human Rights and Anti-discrimination Commission for redress in case of any breach). Critics of the Bill of Rights provisions in the government’s draft constitution should carefully study the 1970 Constitution’s Bill of Rights chapter (Chapter II) to note the limitations set out there. The criticism is that the limitations to rights in the government’s draft are longer than the rights themselves but these critics should also look at the limitations in the 1997 Constitution before coming to that conclusion. A recent comment from one of the ngos was that the right to life should not be limited. If that were the case, a government could easily find it appropriate to prohibit the right to abortion. Even the Universal Declaration of Human Rights contains a blanket rights limitation – note Article 29. The International Covenant on Civil and Political Rights (iccpr) and the Human Rights Committee do explain what these limitations mean. In the fervour to protest against the government’s draft constitution people need to be careful not to throw the baby out with the bath water! With respect to executive power, I approve of the election of the President 24
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by a Parliamentary College as being consistent with my views and submissions made to the Yash Ghai commission that the President of Fiji should be elected. Of course, there are some significant changes in this new draft, which, due to the demise of the plan to put it before a Constituent Assembly as promised, will not now properly be aired in public discussion and debate which is itself part of the process of “we the people adopting this constitution as our own”. The changes are as follows: n The President’s power has been whittled down to next to nothing. The current President has effectively been given his letter of termination since section 84 of the draft states not only that a President will have, at the most, a six-year term, but that any period of occupying that office prior to the commencement of the new Constitution will be taken into consideration in the next appointment. n The President has no power now over the military; the Prime Minister will be Commander-in-Chief of the rfmf. This is inconsistent with section 130 of the Constitution which gives the military the right to look after all the people of Fiji. This has implications for security and safety of the people (for example) if an event like that of 2000, when the Prime Minister and his government were held hostage by Speight, takes place again. The Commander of the rfmf in the government’s draft constitution has no power other than to appoint and remove persons from the rfmf, and for discipline. So what does section 130 (2) actually mean? That section is a dead letter. n The President cannot refuse his or her assent to any bill; if a bill is presented to the President by parliament, he or she must assent to it within seven days. Otherwise the bill becomes law anyway. n The chapter on the judiciary has a number of clauses that do not fit correctly in that chapter. For example, the Fiji Independent Commission Against Corruption (ficac) appears in that chapter, though it is an investigative body and not
a judicial one. Clearly the drafters do not understand the principle of separation of powers which is the heart of constitutional law. n There is no independent commissions chapter in the draft constitution. The Human Rights and Anti-discrimination Commission is one of the few commissions specifically mentioned but how the appointment of persons to the Human Rights Commission or other commissions will be made represents a big gap in the draft constitution. Where are the checks and balances in the appointment of persons to public office? n As for the chapter on Parliament; the question is, if there are no political parties registered so far, is parliament going to be just a group of independents? The Prime Minister should come clean on how many political parties were properly registered at the deadline. The draft constitution of the government was clearly written in a big rush. There are some serious deficiencies in the government’s draft, including in the Bill of Rights provisions, but rights limitation clauses are not the main problem. The main problem is that there is no definition of ‘human rights’ in the interpretation section of the Constitution and one has to rely on the definition provided in the Human Rights Commission Decree 2009 which is, of course, quite wrong. [Decree 11 of 2009 defines “human rights” as “the rights embodied in those United Nations Covenants and Conventions on Human Rights which are ratified by the State of Fiji, and the rights and freedoms as may be prescribed by the President by Decree.”] n Dr Shaista Shameem is a constitutional and human rights litigator and former United Nations human rights expert on private military and security companies (PMSCs) in her capacity as United Nations Special Rapporteur on the Use of Mercenaries to Impede Human Rights and the Right of Peoples to Self-determination. As director and later chairperson of the Fiji Human Rights Commission from 1999-2009 she was lead counsel for all human rights cases litigated by the commission. She is currently working on a study entitled ‘Legitimacy of Constitutions: the example of Fiji’. February-May 2013
Torture time Escaped prisoner Iowane Benedito being tortured by police officers in civilian clothes after his recapture in November 2012. No officer has faced justice for the acts caught on camera.
The wrongs in the bill of rights By SHAMIMA ALI
he Fiji Women’s Crisis Centre denounces the bill of rights in the Bainimarama government draft constitution as regressive and falling short of international norms on human rights protections. While on the one hand, the constitution specifies various civil and political rights which it says are available to people in Fiji, on the other hand, the numerous and widely drafted exceptions and derogations from these rights means that effectively, basic human rights are no longer guaranteed for the people of Fiji. The draft constitution restricts civil and political rights in significant ways, and is a major regression from the civil and political rights guaranteed by the 1997 Constitution. One of the most worrying aspects of the bill of rights in the draft constitution is the derogations from the right to life. The right to life is an absolute right under Article 3 of the Universal Declaration of Human Rights, and the derogation of the right to life in this manner is totally unacceptable. What the military government is attempting to do is tantamount to the legalisation of the killing of all escaped and escaping prisoners and detainees, and all persons engaged in “riots and insurrections”. To give such powers to the police and military given the recent evidence of the use of torture by police in the capture of escaped prisoners opens the door to abuse of power and impunity.” Other worrying aspects of the Bill of Rights include the derogations from freedom of assembly and association for workers and union members. Not only are trade union officials defined as holders of pubFebruary-May 2013
lic office and are liable to have their freedom of assembly and association restricted, but freedom of association may be limited to regulate collective bargaining, employment disputes and strikes. In essence, the rights of workers to collective bargaining and fair employment practices are undermined by these allowable derogations from their basic human rights.” Furthermore, freedom of expression is restricted by prohibition of “insurrection against this constitution”. This could be widely interpreted to mean that the Constitution may not be criticised or challenged. Other worrying aspects of the Bill of Rights include the restrictions on the right to personal liberty and the clauses which restrict rights by “such other limitations as may be prescribed by law. What is the point of stating that a right exists, if that right can be limited by a law made by simple majority in Parliament? For instance, the broad limitation on freedom of expression (section 17) and Environmental Rights (section 37) make these rights meaningless as constitutional guarantees. The derogations from the rights set out in the Bill of Rights are even more worrying given that the draft constitution purports to continue the Human Rights Commission (as the Human Rights and Anti-Discrimination Commission) as established by the Human Rights Commission Decree 2009. The Human Rights Commission as set out by the 2009 Decree is not independent of government and is not compliant with the Paris Principles. It is therefore ineffective as an independent mechanism for the people of Fiji to challenge human rights abuses by the State. n Shamima Ali is the coordinator of the Fiji Women’s Crisis Centre and a long-time human rights activist. republikamagazine.com | Repúblika |
MINISTRY OF INFORMATION
Meet and greet Attorney-General Aiyaz Sayed-Khaiyum listens to some of the people who turned up at his constitution briefing session in Labasa in April.
A question of legitimacy By BRIJ V LAL
he draft constitution maintains the façade of the Westminster system but breaches its spirit. In the Westminster system, the office of the Leader of the Opposition has an important role. The Leader of the Opposition is, in effect, the alternative Prime Minister. Consultations with him or her is required for various purposes, such as appointing people to high office (for example the Chief Justice). In the draft, the Leader of the Opposition is a straw figure, toothless, stripped of all consultative functions. It is strange that the Commander of the military forces will be appointed by the Prime Minister who will also be its Commander-in-Chief. The military should serve the interests of the ‘State’, not the interests of the ‘Government’ of the day. It should not be politicised, as it invariably will be under the proposed draft. At its worst, the military could become a private militia of the government of the day. This is very dangerous. The human rights provisions of the draft look impressive on paper, being cobbled together from previous consti26
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tutions. But what is most alarming is the wide derogation permitted by the draft, derogation at the whim of the government of the day. What is the proper test for derogation? In any democratic society, it should be what is reasonably permissible in a democratic state. That test has been taken away. The wide discretion given to the government of the day is full of danger. The process of ratifying the constitution is deeply flawed. The views of the people are being sought by the same fraudulent means that the Charter process involved. There is no proper accounting or analysis, independently verifiable, of the responses received. A constitution is a complex document which even ordinary graduates will have difficulty fully understanding. It requires expert advice to understand and digest. There should be a proper referendum through secret ballot to ascertain the view of the people, not this Mickey Mouse approach. An independent Constituent Assembly must be reinstituted. Unless the military regime heeds the views of the people, Fiji is headed again for a crisis. All the major political parties have rejected the regime’s draft. It was prepared by faceless men and
women in government. The people did not give them the mandate to write the draft. If the military insists that its version must triumph, then the document will simply lack legitimacy. It does not enjoy one now. Military chief of staff Brigadier-General Mohammed Aziz’s recent remarks that the military would like to see Commodore Bainimarama continue as prime minister is most alarming. The military is the servant of the State, not its master. It should have no views on the government of the day, about who should be prime minister. What happens if someone else is elected in 2014? Will Aziz and his men refused to recognise the new government? Will Fiji be back to square minus one? Quite frankly, in most other places, Aziz’s remarks would constitute a sackable offence. But perhaps all this is a cruel hoax. They will go through the charade of consultation, but their mind is already made up. The military will not concede R power, except on its own terms. n Brij V Lal is a Professor in the School of Culture, History and Language at the Australian National University. He was a member of the Fiji Constitution Review Commission whose report formed the basis of Fiji’s 1997 constitution. February-May 2013
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What the military thinks of itself An insider’s view of how UN peacekeeping missions shaped the self-image of Fiji’s armed forces
By JONE BALEDROKADROKA
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THE FIJI TIMES
reat socio-economic promise was envisaged for newly-independent Fiji in the 1970s but due to a series of military coups in 1987, 2000 and 2006, this promise has remained unfulfilled. While many scholars explain the coups with reference to ethnic politics, I’d argue that the politicisation of the Fijian military is partly due to the fact that it has developed a self-image as a mediator of political tensions and executor of coups d’état. Unlike the Indonesian military, the Fijian military’s raison d’être wasn’t determined by internal security threats; in fact, it was historically apolitical. And the development of this selfimage appears to be an unintended consequence of the Fijian military’s involvement in United Nations peacekeeping operations. Much of this development has its roots in the Fijian military’s first deployment on a UN peacekeeping operation as part of the United Nations Interim Forces in Lebanon (unifil) in 1978. Participation in UN peacekeeping operations had obvious benefits to the fledgling Fijian nation, including being
Coup commanders Officers who have been central to the Fiji military’s role in the successive coups – above: Sitiveni Rabuka in 1987, Filipo Tarakinikini in 2000 and Pita Driti in 2006 – were all previous commanders of the peacekeeping battalion in Lebanon.
seen as a good international citizen, the generation of foreign exchange and improved youth employment. However, rather than staying in Lebanon for a year or so as originally intended, the soldiers served for more than two decades, withdrawing only in 2002. Moreover, the confidence the Fijian military gained from serving with larger nations’ militaries in UN peacekeeping missions has given it an inflated corporate self-image.
Participation in UN peacekeeping missions also necessitated that the military increase in size beyond what would be required to defend Fiji. By making peacekeeping the centerpiece of foreign policy, Fijian governments have unwittingly enhanced the military’s capability to intervene in domestic politics. Fijian soldiers were also indelibly affected by the mediator role they performed when trying to defuse communal factional conflicts as part of unifil. February-May 2013
UN Photo/Rick Bajornas
Men in green Members of the Fijian colour guard and the guard unit of the United Nations Assistance Mission in Iraq (unami) march in
By the time the battalion pulled out of Lebanon in 2002, this mediator role was engrained in the collective military psyche and valorised by the deaths of 37 Fijian soldiers. Hailing from a small South Pacific nation, relatively isolated from partisan global politics, the Fijian military has been seen as impartial, an important quality for peacekeeping operations forces. The involvement of Fijian troops in peacekeeping in the Middle East attracted much international attention, including a 1980s UN documentary featuring Fijian soldiers which further enhanced their self-perception. It also gave them a sense of self-belief in being part of a complex diplomatic solution of global proportions. Looking at Fiji today, officers who have been central to the military’s role in the successive coups – Rabuka in 1987, Filipo Tarakinikini in 2000 and Pita Driti in 2006 – were all previous commanders of the peacekeeping battalion in Lebanon. The implication of a ‘Lebanon situation’ is quite obvious in Rabuka’s coup operational orders (opord 1/87). In the conclusion to the opord Rabuka clearly states that ‘You will see that the sit [sic] Fiji is in is dangerous and will develop into something much worse and resemFebruary-May 2013
COMPARISON BY COUNTRY OF NUMBER OF MILITARY PERSONNEL RELATIVE TO POPULATION COUNTRY SOLDIERS/1000 CAPITA Fiji 10.1 Australia 3.9 New Zealand 2.8 Papua New Guinea 0.5
COUNTRY Myanmar Thailand Pakistan Nepal
SOLDIERS/1000 CAPITA 10.7 10.1 8.2 5.5
n Note: Fiji - total military personnel 9500 (active and reserves) to 837,000 population. n Source: International Institute for Strategic Studies (IISS), The Military Balance 2010 (London: Routledge, 2010)
bling Lebanon and other troubled areas of the world.’ The self-styled mediator role also stems from a patron–client, or chiefwarrior (turaga-bati), relationship that has developed between elite indigenous chiefs (and their associates) and the predominately indigenous military (99 per cent indigenous Fijians). This relationship has its origins in the intensive peacekeeping tempo and swelled military numbers over the last 25 years. The security and development agenda of the current Fijian leader Commodore Frank Bainimarama is also a throwback to Malaya in the 1950s when, as part of British Commonwealth forces, Fijians were imbued with the notion of successfully quelling Communist insurgents.
Many of the top government positions are ‘militarised’. This process of setting apart the military from society was carried into the post-independence period by the ruling elite. The military has now entrenched its authoritarian rule until September 2014 at least. The big question is whether the military will continue to play a key role in Fiji politics R after the 2014 elections. n Jone Baledrokadroka is a former colonel with 26 years of service in the Fiji military. He recently completed PhD studies in the State, Society and Governance in Melanesia Program at the Australian National University, researching the role of the military in Fiji politics. This piece was first posted by Baledrokadroka on The Strategist, the blog of the Australian Strategic Policy Institute. It was based on his paper published in the Summer 2012 special edition of the journal Security Challenges on the theme ‘Security in the Pacific arc’. republikamagazine.com | Repúblika |
The enemy within
The F-Word with ROSHIKA DEO
“The enemy within must be transformed before we can confront the enemy outside” ~ Bell Hooks
n our societies, patriarchy is entrenched - it is in our gender, in authority and power, and in access to resources, among other things. So to be a man is to be masculine and to be a woman is to be feminine, and this is shaped by our social learning, by our socialisation. As a simple example, the colours pink and blue – pink is perceived as a feminine colour and considered soft, whereas blue is masculine and regarded as strong. Our application of masculinity and femininity limits us, perpetuates harmful stereotypes and discrimination and prevents us from truly living. Recently, I asked a male friend of mine if he was going to wear a Sherwani, a long coat-like garment worn by men in South Asia and in Fiji. He responded by saying how it made him feel like a girl and was not masculine. Another example is a group of male friends who were talking. Discussions started around how one of their mates was struggling to use gym weights. There was great aggression about how he needed to be given a slap so he can be masculine as he was embarrassing the whole lot of them. A friend was once told that she should not be with this man because he was not masculine enough. This was said in response to a statement made about how he was emotional, gentle and did all the housework. Once, an older male colleague of 30
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mine shared how he struggles with his niece to get her to stop wearing pants (which she says she is comfortable in). He said that one day they were receiving visitors and she refused to change into a dress or skirt. He said he was disgraced by her because she wasn’t feminine. A final story, in conversations with a gay friend of mine, he expressed how he is aggressive (and he is very aggressive) and restricted in emotion because he is a man. And he hates being referred to as being feminine. (A gay man may feel pressured to behave “super-masculine” in order to be accepted or may feel he has to live up to an internalised notion of masculinity.) And there are many more stories of masculinity and femininity that I am sure we all have from our daily experiences. Now, one thing that is quite evident is how as a society we have constructed what it means to be masculine and feminine. To be masculine means that a man has to be aggressive, powerful, not show fear, restrict their emotions and seek out risk and adventure, and they must be admired and respected! And to be feminine means the exact opposite, including wearing skirts and dresses! Now when we put this in context, fighting and violence is overwhelming inflicted by boys and men either on other boys and men or on women. The domination and misogyny that is prevalent in our society also stems from the notions of masculinity and femininity. The pressure and coercion to adopt these behaviours are entrenched in every institution in our society, be it the family or at the workplace. Generally when a man is caring, emotionally sensitive and gentle (and/ or does housework fully) they become subjected to ridicule and we tend to devalue them because they do not fit our
notions of the patriarchal masculinity. Apart from the unfair devaluation of a person, expecting men to fit into this patriarchal notion of masculinity restricts their emotional and psychological development. Not forgetting that they are more vulnerable to bullying and violence by other men. When a woman behaves aggressively, we tend to label her as masculine or that she is “acting like a man”. But we limit ourselves to discovering other possibilities of redefining women and men’s behaviours. We all need to assess the ways in which our own attitudes and behaviours continue or may contribute to perpetuating patriarchy, violence against girls and women, and misogyny. Women and men should feel free to express themselves freely and in healthy ways instead of being pressured or forced to conform. We should not put indicators or define what it means to be a man or woman, but instead we should define what it means to be a human, a person. This will allow for us to embrace all our diverse identities and behaviours and create an inclusive, healthy and peaceful culture. A society that allows us to live life instead of just existing to conform. And changing or creating an equitable society means changing our own attitudes, behaviours and the relationships we have with patriarchy, masculinity and femininity. Let us work hand in hand for the liberation of women and men by transforming our own behaviours and attiR tudes, and smashing patriarchy.
n Roshika Deo is a feminist and human rights defender. February-May 2013
A D V E R T I S I N G
F E A T U R E
Zoom-zoom with Mazda 6 T
he new Mazda6 is the second ponents. The system also charges of Mazda’s new generation the vehicle battery as necessary. of products which incorporate ‘i-ELOOP’ operates whenever the both the full range of SKYACvehicle decelerates, reducing the TIV technologies and the new need for the engine to burn extra KODO-SOUL OF MOTION design fuel to generate electricity. As a language. It will also be the first result, in “stop-and-go” driving model equipped with Mazda’s conditions, fuel economy improves brake energy regeneration system, by approximately 10 percent. i-ELOOP. The introduction of The name ‘i-ELOOP’ is an i-ELOOP marks stage 2 of Mazda’s Mazda’s ‘i-ELOOP’ brake energy regeneration system adaptation of “Intelligent Energy Building Block Strategy for enviLoop” and represents Mazda’s ronmental technology developintention to efficiently cycle energy ment. The strategy calls for thorough improvements in base automoin an intelligent way. tive technologies before the step-by-step introduction of electric ‘i-ELOOP’ also works in conjunction with Mazda’s unique ‘i-stop’ devices to improve fuel economy and reduce carbon emissions. idling stop technology to extend the period that the engine can be Mazda’s brake energy regeneration system is unique because it shut off. uses a capacitor, which is an electrical component that temporarily Idle stop systems, commonly known as the i-stop, save fuel by stores large volumes of electricity. Compared to batteries, capacitors shutting down a vehicle’s engine automatically when the car is stacan be charged and discharged rapidly and are resistant to detetionary and restarting it when the driver resumes driving. Especially rioration through prolonged use. ‘i-ELOOP’ efficiently converts the in urban areas, drivers often let their car’s engine idle at traffic lights vehicle’s kinetic energy into electricity as it decelerates, and uses the or when stopped in traffic jams. Switching off the engine to stop electricity to power the climate control, audio system and numerous it idling in these situations enhances fuel economy by about 10%. other electrical components Mazda examined automobile acceleratConventional idling stop systems restart a vehicle’s engine with an ing and decelerating mechanisms, and developed a highly efficient electric motor using exactly the same process as when the engine is brake energy regeneration system. Unlike hybrids, Mazda’s system started normally. Mazda’s ‘’i-stop’’, on the other hand, restarts the also avoids the need for a dedicated electric motor and battery. engine through combustion. ‘i-ELOOP’ features a new 12-25V variable voltage alternator, a Mazda’s system initiates engine restart by injecting fuel directly low-resistance electric double layer capacitor and a DC/DC coninto a cylinder while the engine is stopped, and igniting it to generverter. ‘i-ELOOP’ starts to recover kinetic energy the moment ate downward piston force. This system not only saves fuel, but also the driver lifts off the accelerator pedal and the vehicle begins to restarts the engine more quickly and quietly than a conventional decelerate. The variable voltage alternator generates electricity at idle-stop system. up to 25V for maximum efficiency before sending it to the Electric The Mazda6 is coated by a Soul Red color which was an innovaDouble Layer Capacitor (EDLC) for storage. The capacitor, which has tive new paint process to capture both the deepness and vividness of been specially developed for use in a vehicle, can be fully charged in the color, highlighting the cars sleek design. seconds. The DC/DC converter steps down the electricity from 25V Step into the Niranjans showroom today for a test drive and to 12V before it is distributed directly to the vehicle’s electrical comexperience this dynamic technology.
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How much you’re paying for ‘positive’ spin* *About $1 million a year
By RICARDO MORRIS Editor
he first that ordinary Fijians heard of Qorvis Communications was in Prime Minister Commodore Voreqe Bainimarama’s budget address in November 2011. By then, the Attorney-General Aiyaz Sayed-Khaiyum had already signed a contract with the US firm which, Bainimarama said, would help bring government institutions “up to speed” as modern establishments. “[Qorvis] will also help coordinate external communications, including promotion and packaging of various investment incentives,” Bainimarama said. Soon enough it became clear who Qorvis was: a notorious spin firm that does not shy away from assignments that some people might reject on ethical grounds. The 13-year-old Washington outfit attracted global attention when it was hired by Saudi Arabia to manage its public relations in the aftermath of the 9/11 attacks on America. On its website, Qorvis bills itself as “one of the largest privately owned digital and PR agencies in the world.” It declares: “For more than a decade, we have helped governments, trade associations, nonprofits and corporations overcome their most critical communications and marketing challenges.” 32
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Indeed, Qorvis does work for many government clients including the US government and the British government. It also does works for anti-democratic regimes and one of the more notorious incidents involved the Kingdom of Bahrain’s attempts to quell a majority Shia protest in 2011. Human rights groups claimed the Bahraini authorities were systematically denying injured protesters treatment by threatening medical personnel and those who sought their help with arrest. The international medical relief organisation Médecins Sans Frontières (Doctors Without Borders) in Manama came in for special attention from the authorities. In late July 2011, a man who suffered a head injury in the government crackdown was taken to the MSF facility but an ambulance had to be called because of his seriousness. The next day officials turned up, conducted an armed raid and took an MSF worker away. Qorvis sent out a statement on behalf of the Bahraini health ministry condemning MSF for operating what it said was an unlicensed surgery in a residential area, although it failed to say that an insurgency had persisted from earlier in the year and that those turning up for treatment at medical facilities and the staff treating them risked arrest. Not all its work is in dramatic circumstances though. Qorvis also has a large range of corporations and high
In the two filings that detail Qorvis work in Fiji over one year, the government paid the company US$533,507.07 – amounting to about FJ$951,029.
net-worth individuals as clients (www. qorvis.com/clients). Its task in Fiji, Qorvis says on its website, is helping pave the “Bainimarama government’s path to true democracy.” The company’s consultants are working with the government to “enhance its external and internal communications capabilities. Since the repeal of the Public Emergency Regulations in January 2012, the Government has been keen to modernise how it communicates its messages, both within the country and abroad—as a way to share its story to promote investment and understanding about Fiji’s history, culture and political situation.” The PR firm is believed to have convinced the Fiji government to remove the PER which severely limited civil February-May 2013
Managing the message Attorney-General Aiyaz Sayed-Khaiyum reads a news story while Qorvis senior director Sol Levine, middle, and Qorvis colleague Benjamin Simonds look on at the Fiji Bus Operators Association convention on 19 May 2012 at Novotel in Lami. INSET: The Qorvis contract signed by Sayed-Khaiyum in October 2011. and political rights, although a decree amending the Public Order Act came into force soon after to replace the PER. Qorvis lists the services provided to Fiji’s regime as public relations, messaging and public diplomacy. But all this “messaging” comes at a price. The contract signed between SayedKhaiyum and Qorvis managing partner Michael Petruzzello in October 2011 lists a retainer of US$40,000 (about FJ$70,800, the same amount that Bahrain is charged), plus expenses which in the most recently reported information (to 30 September 2012) amounted to US$109,757.94 (about FJ$194,260). In the two filings that detail Qorvis work in Fiji, the government was reported to have paid the company US$533,507.07 – amounting to about FJ$951,029 at average exchange rates prevailing at the time of payments. The fact that the Fiji government pays nearly $1 million annually of taxpayers’ money to a foreign company to craft and burnish its image internationally would most likely not have emerged if Qorvis Communications LLC had not been a US company. As a US company working for forFebruary-May 2013
eign governments, Qorvis is required under the Foreign Agents Registration Act of 1938 to declare who it works for, what it does for them, the US institutions it contacts on behalf of clients and how much it is paid. The result is that the public is given a detailed breakdown every six months of the work Qorvis does and what it spends money on while working for its clients. In Fiji, Qorvis consultants have been involved in organising media visits, writing press releases and speechs, setting up and running Facebook pages, YouTube accounts and tweeting on behalf of Bainimarama, Sayed-Khaiyum and the Republic of Fiji. Qorvis has advised on, and set up, the Fiji elections office website and runs blogs that play up the positive aspects of Fiji’s tourism, business, environmental and social sectors without declaring its interest on those blogs. Not long into its work, Qorvis managed to place an opinion piece under Commodore Josaia Voreqe Bainimarama’s byline on the hugely popular and influential US blog Huffington Post. That piece was titled ‘A win for the 99%’ 4Continued on page 34
QORVIS PAPERS ON WORK IN FIJI US companies doing work for foreign entities must file sixmonthly returns under the Foreign Agents Registration Act (FARA) detailing the work they have done and what monies were received and spent. These documents are availabe on the US Department of Justice’s FARA website.
8 http://www.fara.gov/search.html To search for documents relating to Fiji on the FARA site, type ‘Qorvis Communications’ in the ‘registrant name’ field in the search form. A list of PDF files with the date they were filed and what the document relates to should show up. The first mention of Fiji is in a filing dated 2 December 2011 (12/02/11 in US date format). Exhibits A and B (document 35) relates to the Fiji contract and supplemental statements 14 and 15 are relevant to Qorvis’ activities in Fiji. republikamagazine.com | Repúblika |
QORVIS’ DIGITAL STRATEGIES Facebook n facebook.com/Fijielectionsoffice n facebook.com/fijianmade Twitter n @FijiPM n @FijiAG n @FijiRepublic
Blogs n travelfijitoday.org n investfiji.org n ecofiji.org n fijigrowth.org n empowerfiji.org Website n electionsfiji.org
Money talks Qorvis declarations showing the amount of money
received from the Fijian government, the first payment being on 4 November 2011 for US$39,981. In all, until the most recent declaration of a payment on 25 September 2012, the government has paid US$533,507.07. Apart from the US$40,000 a month fee (about FJ$70,800 at current rates), expenses are billed separately. 3Continued from page 33
referring to the government’s elimination of taxes for what he said was 99 per cent of the population from 2012, and a reduction in corporate taxes across the board, as announced in the national budget. In January 2012, an opinion piece (‘Fijians control own destiny under Bainimarama’) under Sayed-Khaiyum’s byline was run in New Zealand’s Dominion Post newspaper in response to that newspaper’s editorial titled ‘Commodore’s foot still on Fiji’s throat’. Getting the government’s message in front of the people who are likely to notice and be affected by it is Qorvis’ job. And that’s what they have been doing with these “placements”, which comes with contacts, experience and access. Qorvis also specialises in crisis management, an area that was put to the test in March when a video emerged on the internet showing two men being savagely beaten by police officers, one reported as escaped Korovou prisoner Iowane Benedito. After first announcing that 34
Police Commissioner Colonel Ioane Naivalurua would be holding a news conference, Fiji’s Ministry of Information (which works with Qorvis staff) told waiting journalists that that had changed and it was police spokesman Inspector Atunaisa Sokomuri who would read the statement and that no questions would be entertained. A video – documenting what some people suspected to be happening – that went viral and became the talk of the country got just less than three minutes of an official response from police. The police statement promised international-standard investigations into the torture video but only days later Bainimarama told Legend FM that he would stand by his men no matter what an investigation found – and that appears to be where the matter has rested. There has been no sign of the outcome of any investigation. It seems that with or without Qorvis, Bainimarama will handle his own news the way he wants to – never mind the almost a million dollars taxpayers are shelling out to pay somebody else to do that job R for him.
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Bill away Some of the payments made by Qorvis staff while working for the Fiji government include “traditional dress for event at client home”, “Facebook advertising for Fijian Ministry of Information” and “candy for tipping room service”. February-May 2013
A letter from mother
From GARY JUFFA in Popondetta, PNG
ne boring Saturday recently, while cleaning up my desk, I found a bunch of old letters. They were folded in half, four pages of ordinary blue-lined writing pad paper. I unfolded them and discovered they were old letters written by my mother, Felicity. As I read the familiar writing in blue ink, I was taken back in time. Strong emotions overcame me as I fought back tears. The loss of a caring and loving mother is something a child never forgets, and whenever I recall that tragic day of her final farewell, I am unashamedly brought to tears. The letters were a reminiscent glance into a time long gone yet it seemed like yesterday. The words she penned captured yesteryears’ thoughts and preserved them in this four-page letter, accidently kept along with a heap of documents in a drawer in my wooden desktop collections of dried ink pens, faded receipts, airline boarding cards, old pencils and a rusty pencil sharpener. Unnoticed for several years along with this letter. Forgotten until that day. But slowly I read the contents and it was as if mother was speaking to me, bringing me a cup of coffee like she always did and offering to cook a meal. I could hear her voice and see her smile and hear her concerns about this and that which she often expressed without holding back, offering advice where none was asked for and not caring if you wanted it or not. Pointing out a shirt that shouldn’t be on a chair or a plate that should have been washed or shoes that should have been left outside. That was my mother. A workaholic to the very end, she detested laziness and was always moving about, cleaning, picking
February-May December 20122013
up, cooking, and talking about how laziness would certainly end this world, with no one seeming to ever clean up, constantly critical, always tidying and always reminding us that life was never meant to be easy and we had no army of house girls. Sometimes she would ask if we should perhaps want her to come and wipe our grown-up bottoms after we used the toilet because it was so obvious we were “too lazy to do even that and God forbid her children should ever be wandering about with un-wiped bottoms!” She read and wrote prolifically. Always numbering her pages and always writing “P.T.O” on the bottom. She would start each letter with a sentence requesting correction of spelling errors and grammar but her letters rarely contained such, a tribute to the high quality education system that was prevalent at that time which urged – and indeed demanded – that children read and wrote well. This letter was filled with details of the last holiday taken by my children with her to Kokoda, Block Portion 168, my grandfather’s portion of land that he had acquired through the Agricultural Bank soon after he had been discharged from the Papuan Infantry Battalion. He had cleared the thick forest and had started a small-holder plantation, cultivating cocoa, coffee and running a piggery, eager to work, and living his dream to be a man on his own, he himself having been an orphan who had grown up by the river, on the periphery of his village, forced to eat what was fed to the pigs by his aunt who mistreated him and had nothing but cold harsh words for him – another story in itself. He was buried there, along with my grandmother, my two aunts, my uncle, my great grandmother and eventually my mother.
This letter from my mother was written with her usual loving consideration and information, telling of how she and my stepfather were teaching my children how to garden and how to sing traditional songs. How my stepfather told great scary legends about ogres and witches as they snuggled in blankets by their hurricane lamp as the rain beat down hard and cold outside a typical Kokoda night. She went into detailing the children’s usual daily activities, their adventures, their bouts of flu, cuts and scratches and insect bites they acquired as they romped under the cocoa trees and splashed about in the streams in those bright sunny Kokoda Station days. The same trees mother climbed as a child, that I swung from and now my children were gleefully exploring, laughing and giggling as only children can, with not a care in the world. I sipped my by-now-cold coffee and thought of how far I had managed to come, all thanks to this strong and hard working woman, who had left this world quietly on 20 February 2009. She had never taken any leave from her vocation as a nursing officer for 20 years, accepting her postings to some of the most remote and most difficult places in Papua New Guinea. She had conducted numerous family planning sessions with village elders and women, lugging around her generator and movies and boxes of contraceptives, and sleeping in these remote locations with her team of a driver, an administrator and another nurse. PNG was safe and secure then. People respected authority and the educated and these public servants of the early years deserved it because they were so earnest and honest and professional in the delivery of their services, everywhere, throughout Papua New Guinea without exception. 4Continued on page 36 republikamagazine.com | Repúblika |
3Continued from page 35
She had patrolled along the Kokoda trail immunising children, treating mothers and the elderly, carting a giant tin trunk of medication and pamphlets and holding awareness sessions with enthusiastic and curious villagers. As I read the letter, my thoughts wandered back to the decades ago when it seemed only yesterday I was a child and Papua New Guinea was so full of hope. I remembered how she had struggled to earn a living and give me the best she could, living here and there, sometimes with friends and relatives and making enormous sacrifices, sometimes beaten and mistreated and called cruel names by women who objected to her independence and forward thinking, many who she had saved or treated when they themselves were victims of violence from their husbands. On many occasions I was left with friends until she had accommodation and sent for me. Those were hard times. I learnt then that many were only goodtime friends and did not care much for me as they may have pretended to. Nights without meals and frequent harsh words and even being locked out were secrets I kept from my mother. During the days I busied myself collecting bottles and stayed with my friends from the settlements. I learnt that in the simplest of homes such as those I spent time at in settlements or villages with the least of material goods were far richer than any mansion of the well-to-do, if only the simple home had laughter, happiness and love. Any mansion that may have had all the wealth but had neither laughter nor love was never truly rich. Reading this letter reminded me how much I have come to learn from those experiences and circumstances. They have taught me to always be kind and empathetic to everyone, to help where and when one can, to work hard and to do so honestly and to be fearless, in protecting those you love. I remembered how exhausted she would be on returning home and while 36
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cooking our meal she would tell me stories of how great Papua New Guinea would be if everyone worked hard and if the government would ensure that all public servants were housed, paid well and managed firmly. She told me how precious life was and how we should always make an effort to save a life and she told me once how she had been advised and convinced by her friends that perhaps she was too young to have a child and that it would only hinder her progress and chances at a good life and perhaps she should take action to terminate the birth. She had vowed instead to keep this child, her first child, and give him the best she could, sacrificing further education, marriages, living overseas and other opportunities. She did not heed their advice although arrangements had been made and even a ticket purchased, she tore them up and decided instead to proceed down what was to become a difficult journey in this young newly independent nation. And that is the story of how I came to be. Years would pass and she would remarry, have another child and adopt and gather many from all parts of the country and indeed the world and give them unconditional love and care, sharing always what little she had and offering her wisdom. I straightened the pages, having read every word carefully, finished my coffee
Hope for a better future Young Papua New Guineans like Felicity Juffa and Michael David embraced independence with confidence and hope. and wiped away my tears. Yes, sometimes we all must be brought to tears; sometimes the reminders of a life that happened only because of a motherâ€™s love and determination can do that and saying this to myself, I put the four pages of motherâ€™s letter away, to be scanned and preserved as a reminder to myself and my children and perhaps theirs too if they so wish, that looking back at our yesterday, is always necessary, to remember where one came from, so that one can understand where one is going and never forget, that life, difficult and hard at times, often buoyed by happy and hopeful moments, is always truly remarkable journey. If you happen to have old letters from people who cared for you, you may wish to find some time to read them and reflect. Think of where you once were, the people you met and those who shaped your life, the good and the bad and especially those who loved you and cared for you so much as to sacrifice the most in their life for you. You may want to keep them and pass them on to those who can use them, your children for inR stance. n Gary Juffa is the Governor of Oro (Northern) Province in Papua New Guinea. February-May 2013
salon Cultural stimulus for the curious mind
KYLE POST PHOTOGRAPHY
A bus ride
By Jill Cottrell Ghai Photographs by KYLE POST
he driver was insistent: “Go and sit with your friend at the back. He is going to the same school.” Vimal sat as instructed. He looked at the other boy; the other boy looked at him. Neither said anything. The bus was better than any Vimal had been in before: the windows had glass in them and the seats were quite comfortable. He looked out at his mother. She stood there in her best sari, looking tiny and frail. The boy sitting next to him asked, “Is that your mother?” Vimal said “Yes” and then, looking at a statuesque woman wearing a dress, with a skirt of matching material under it, going down to her ankles, “Is that yours?” The other boy nodded. “She is very large”. Then, thinking that was very rude, Vimal added, “I am sorry. I shouldn’t say that.” The other boy said. “It’s all right. I was just thinking how funny they look. I can see bits of my mother all round the outside of your mother.” They both laughed. Then Vimal’s mother, who had been looking very sad, took out a handkerchief and wiped her brimming eyes. The other boy’s mother put an arm round Vimal’s mother’s shoulders. Vimal looked at the other boy and said, “That’s nice of your mother”. The other boy said, “Where is your father?” “He’s dead”. “I’m sorry; how did he die?” Vimal hesitated, then went on, “He was a cane farmer. When his lease came to an end your people refused to renew it. Babu did not know what to do; he had never done anything else and felt he had no other skills to support his family any February-May 2013
more. He was so ashamed that he killed himself. That was just after I was born so I can’t remember him.” He was a bit surprised to find a tear seeping out of his eye. He sniffed, afraid to show emotion. “What do you mean, ‘My people’? asked Jone. “How would you like it if I told you, ‘My father went into business but it failed because one of your people cheated him.’ That’s true.” There was silence between the boys, as the bus started. It turned out of Nadi, past the big, brightly painted Hindu temple and on to the Suva road. For a while Vimal enjoyed watching the scenery; it was only the second time he had been to Suva. After a while he thought he should try to break the stillembarrassed silence. So he asked, “What’s your name?” “Jone”. They exchanged names of primary schools, and where they lived. Vimal said, “We live with my mother’s sister, near the Korean restaurant.” “They eat dog.” “What’s wrong with eating dog? Why is it worse than eating cow?” “Eating dog is disgusting. Dogs are dirty. And they aren’t bred for meat.” “Eating cow is disgusting. For us cow is sacred. And eating pig is disgusting. Look what pigs will eat.” “You are heathens. Fancy worshipping the cow! Anyway a lot of your people eat meat.” At this point other people in the bus started to look at the boys, whose voices were raised. Each of them decided it was better to keep silent, though it was an uncomfortable silence. The beautiful countryside rolled by: fields of cane, trees republikamagazine.com | Repúblika |
salon and hills and far away to the right the shimmering waters of the sea with a distant fringe of surf as the waves crashed onto the reef. They passed a big advertisement with someone enjoying a famous soft drink, and wearing a Manchester United shirt. Jone snorted, “Why all this obsession with Manchester United? I support Manchester City.” Vimal, retorted, “Manchester United is a great team; the most famous in the world.” “You’re just following the crowd.” “How about you? I bet it’s just because you like Mario Bolatelli.” A passenger in front of them turned round and said, “You boys! You have to argue about something – even English football teams. Could either of you find Manchester on a map?” The boys looked each other, and each shook his head. They laughed. The bus passed a big sign saying “Sigatoka Sand Dunes.” Jone and Vimal looked at each other and chanted in chorus, “This distinct feature covers an area of 650 hectares and offers a rich combination of geomorphological, ecological, cultural and aesthetic attributes.” They both stumbled a bit over ‘geomorphological’. “What does it mean?” Vimal asked. “I don’t know. But the sand dunes are really great. I went there with an uncle once and you can run up and down them. And someone was making a film there. Have you ever been there?” “No. I’ve only ever been this way once before, on a school trip to Suva and we didn’t stop here. It was raining.” He added, “Are you looking forward to the new school?” “I’m a bit nervous. It will be so much bigger than my last school.” Jone went on, “What do you want to do when you leave school? I suppose you want to join the family business or something and be a rich man?” “Why do you assume every Indo-Fijian wants to be rich? And I certainly don’t want to join any family firm. My grandfather started a business from nothing. But after he died his sons weren’t interested or weren’t any good at business. My father was a cane farmer; one of his brothers went to New Zealand after the first coup and the other two fought over the business but didn’t know how to run it.” “I thought Kai Idia were all good at business. So what do you want to be?” “I want to be a doctor.” 38
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“You can make a lot of money being a doctor. And you can go to rich countries like Australia.” “I want to stay here and I want to be a doctor in the poor parts of towns. What about you? Do you want to be a rugby player?” “Now you are doing it – what do they call it? Something to do with music players. Yes - stereo-typing.” “You were as bad with your ‘Koreans eat dog.’ Do you know Koreans eat dog?” “People say they do.” “The same people who say Indians are too greedy and ambitious and don’t care about the community.” “Or the ones who say iTaukei are lazy, too much into their own culture and are never any good at business.” The boys laughed again. “And like rugby – but I don’t like rugby,” said Jone. “I want to be a lawyer. Like my father.” He paused, and added, “Actually what I really want to do is to paint. Art is always my favourite subject, and some people say I am very good.” “But they say ‘There’s no money in it.’” “Yes – how do you know?” “Because I once said I really wanted to be a musician. My mother was horrified – and my relatives even more. They said things like, ‘Here your poor mother has been slaving away as a widow, to get you a good education and you want to throw it away’” – and Vimal was imitating an outraged aunt. “But it doesn’t matter because I was not very good.” Jone laughed, “But you are a good actor.” “I used to want to run away to Bollywood and be an actor, but then I realised I couldn’t even get into the airport in Nadi, let alone get on a plane. I really like acting, but at school you hardly ever got a chance. Same thing – ‘You’ll never get on in life if you spend all this time on acting.’” “I really like Indian films. We watch them at home often.” The boys compared favourite scenes from a few Bollywood films, and were laughing so much over one, that the man in front looked round with the same disapproving expression as when he had told them off for quarrelling. Obviously he was about to tell them off for not quarrelling, thought Vimal. But just as the man opened his mouth, something strange happened. The man’s whole body came out of his seat, and his reproof to the boys turned
into a scream of fear. Vimal felt himself also leaning, and them almost flying up the roof of the bus. The driver had lost control of the bus as he tried to avoid a car that was driving far too fast and on the wrong side of the road. The bus had fallen on its side, almost on its roof, in a ditch. For half a minute there was silence. Then people began to groan and call for help. Vimal found he was lying on top of Jone. He moved each limb cautiously. They seemed all right. He said to Jone, “Are you all right? Sorry for lying on you like this.” Jone spoke with difficulty, “You are no problem, but something else seems to have crushed my leg.” Vimal moved as carefully as he could, and discovered he could reach the back window of the bus and get out. He could see that various bits of glass were round Jone, and that Jone’s leg seemed to be pinned under a seat of the bus. He said, “Let me get some help”. Outside people were gathering. Other passengers were being helped out of the bus, and it seemed that no-one had been killed. Vimal found two stronglooking men, and said, “Please come and help my friend. He is trapped by a seat and I think he is badly injured”. They had to lower a stretcher into the bus through the back window. But it took a long time to remove the seat that was wedged and squeezing Jone’s leg, while some bits of glass were almost embedded in his leg. It was terribly painful for him and he groaned a lot. Vimal stayed where he could see what was happening, but did not get in the way of the work. Someone said, “It’s OK. You can’t do anything more. You can go now.” But Vimal refused to leave. Eventually they were able to ease Jone out of his tight and painful corner. By then there was an ambulance waiting, and Jone was lifted in. Vimal hopped in after him, but an ambulance attendant said, “No room for you. There’s nothing wrong with you. We have rules. Only family and close friends of victims.” His tone of voice clearly meant that Vimal could not be family or friend. He was going to push Vimal out of the ambulance, but stopped abruptly, when the two boys said at the same time, Jone, in a weak but sure voice, and Vimal more loudly, “He IS my friend.” R February-May 2013
KYLE POST PHOTOGRAPHY
Straight ahead A woman waits for the lights to change in Suva.
n Jill Cottrell Ghai is a law professor specialising in constitution-making, human rights, sovereignty, and democracy. She is the wife of Professor Yash Ghai, who chaired the ill-fated Fiji Constitution Commission in 2012. February-May 2013
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Why might is not right in a constitution By ISAIA LAWANIYASANA
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COURTESY ONLY IN FIJI COMICS
n case you haven’t noticed, there are moves in Fiji, to get a new constitution into place. Consitution: a written body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed. What we know in laymen’s terms as “the Law”. Now why is it important that we have a Law. Why should we bother with this? What does having a set of laws in place do for us as individuals? As a society? Why is it such a big deal? All this, has to do with this thing called governance. We, as the governed, agree to follow the directives, of someone, or a group of people that are to govern us, and direct us, in some fashion, that will enable us to achieve some common goal. In this case, the development and continuation of Fiji. Now for this governance to be carried out fairly, in a manner that the governed and the governors accept, there has to be a set of standards, and rules to spell out how this whole governing thing is to be done. What the governed and the governors can and cannot do. How far each party to this relationship can stray. What to do, in cases of crisis, what steps to take to resolve these problems. When we have such a standard in place, we all need to agree to follow it. It’s useless, if there are those amongst us, that will not agree to follow it. Now, there are normally, people who refuse to follow such standards, and they exist in every single country in the world. The constitutions of these countries dictate what is to be done in these cases, and how it is to be done. It uses avenues like the courts where such issues are brought before it, examined logically in the light of the law, and
investments will be safe, and should anything go wrong, there are avenues to address such wrongs and gain redress. A law-abiding nation will also need less policing. What we don’t realise is that money, being a scarce resource, cannot be in two places at once. Every dollar we spend on a policeman, a judge, a lawyer, a prison, is a dollar less we have for education, health, trade, infrastructure development. It makes it much harder for us as a nation to move forward if we have problems obeying our own laws. We also need to change our mindset from that of having the system police us, to our policing ourselves. We need to make a collective decision to start following the laws of our country and to hold each other accountable for following those laws. We need to make this part of our culture so that we can free up the resources that are dedicated to keeping the law to be used in places that need those resources more. We need to understand that if we disagree with the current laws, there are ways to go about changing them without upheaving the whole country. We need to follow these channels. We need to stop thinking that might is right. It’s not. Might is might, and right is right, and the twain shall never meet. A louder voice, a stronger arm, or numerical superiority does not mean that your argument is right. We need to do this if we want our nation to prosper. And we have it within all of us to do so. All we need is to do it together. R
every attempt is made to reach a decision on such matters. The constitution also uses groups of people to restrain these disobeyers of the law, and to remove them from general society. It also has channels that have to be followed if there are changes necessary to keep this set of rules up to date with the current situation the nation finds itself in. When you have this in place, and there is a buy-in from the governed, that they agree to follow the said laws, then you have the foundations for a nation. This is a duty that falls to us when we become citizens of a country. When a person agrees to become a citizen of a country, by birth or naturalisation, he/she agrees to also follow its laws. When the people of a nation agree to follow a constitution and they start following it, we then have a working society. Things function better and the parts that don’t along, with the people behind it, are dealt with according to this constitution. Once things are seen to be functioning well, it becomes easy to predict what the future outcomes for any course of action one contemplates. Investors then become interested in investing in the country, as they can see that their
n Isaia Lawaniyasana is a telecommunications specialist with a particular interest in Fiji’s current affairs and the intersection of technology and society. February-May 2013
R E P Ú B L I K A
P U B L I C
I N T E R E S T
FREE WEST PAPUA! They’re our Melanesia brothers and sisters, but since May 1963 West Papuans have been under Indonesian occupation – and have faced horrendous persecution. As Fiji is a member of the Melanesian Spearhead Group, we have the chance to help emancipate a nation-in-waiting. Don’t let West Papua turn into another East Timor before they get freedom. Read up on the Papuans’ plight and start speaking out for them – and for yourself – today.
To learn about West Papua’s plight, visit: wpik.org papuansbehindbars.org westpapuamedia.info February-May 2013
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