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Pacific Islands Development Program, East-West Center

With Support From Center for Pacific Islands Studies, University of Hawai‘i


Analysis

Ghai's Dilemma: To Be More Than A Tape Recorder

By Professor Wadan Narsey

Professor Yash Ghai has reassured the Fiji public that his Constitution Commission will listen to all the submissions being made, and presumably incorporate "what the people want" into their final Report. But if that is all that they end up doing, then Fiji may as well buy a cheap tape-recorder and hire a good editor. Luckily, for Professor Yash Ghai and Professor Christina Murray to safeguard their international reputation as constitution lawyers, they need to also ensure that their set of recommendations maintains the letter and spirit of Fiji law. To achieve that, the Ghai Commission faces several dilemma.

First, Ghai and Murray at least will know that the most authoritative Fiji courts have concluded that the 1997 Constitution cannot be abrogated by the President, the Military, or merely replaced by anyone, including some "Constituent Assembly" established by "usurpers" (using the words of Anthony Gates- see below).

The second dilemma is that while Fiji's political leaders insist that the 1997 Constitution must be retained (with amendments if necessary), Bainimarama keeps undermining the independence of the Ghai Commission by insisting that the 1997 Constitution will not be revisited. Luckily, the Ghai Commission only needs to point to the Regime's insistence that all future governments must be guided by the People's Charter (which was allegedly approved by more than 80 percent. of all people in Fiji over the age of 18 i.e. virtually a referendum), and the first clause of the Charter states clearly "We the People of Fiji Affirm that our Constitution represents the supreme law of our country, that it provides the framework for the conduct of government and the people". On this issue, submissions to the Ghai Commission can also quote the excellent judgement by Anthony Gates- which I repeat below.

The third dilemma is how the military decrees will be incorporated into a post-election legal framework, when the authoritative legal interpretation is that infringement of basic human rights (as in some of the military decrees) cannot be legalized ex-post.

A possible fourth dilemma (which may not eventuate) is how the Ghai Commission will resolve internal disagreement: will there have to be consensus, in which case they may sink to the lowest common denominator; or will there be voting by majority, in which case the three Regime non-legal appointees could hypothetically out-vote the two legal experts; or will Minority Reports also be allowed, and what standing they will have?

Fiji can be reassured that Professor Ghai has a record of walking away, when those in power interfere with his professionalism. Nevertheless, submissions can assist the Ghai Commission by providing explicit guidance on these dilemma for two reasons: first, should internal disagreement amongst the Commission members reduce them to the role of being "tape recorders of what the people want", then general consensus amongst the submissions will make the Commission's task easier; second, it is their own country's future in the balance.

It is to be hoped that Fiji's own domestic legal experts are committed enough to collectively advise (through the Fiji Law Society) on our own constitutional solutions, without waiting for the legal manna to drop from heaven in the form of a "home grown" constitution (Regime's words), when the majority (3) of the Commission members are foreign residents. But then, so also was the Reeves Commission majority foreign residents.

I first set out my layman's reading of the current legal situation and then suggest a set of recommendations at the end of this article for consideration by our people in their submissions.

The Last Legal Judgement on the coups

A central document for Ghai and Murray will be the last legal and authoritative judgment - that of the 2009 Court of Appeal (Justices Powell, Lloyd and Douglas), a fascinating document to read. The judges carefully traversed all the previous arguments and judgements on the legality of all governments established since the military coups of 1987, 2000, and 2006. They made the clear judgement on the 2006 coup: that all of the following were unlawful according to the 1997 Constitution: the assumption of executive authority and the declaration of a State of Emergency by Bainimarama; the dismissal of Qarase as Prime Minister; the appointment of Senilagakali as caretaker Prime Minister; Bainimarama's order for the dissolution of Parliament; Iloilo's appointment of Bainimarama as Prime Minister; and all subsequent decrees by President Iloilo attempting to legalize Bainimarama;s actions. The Appeal Court pragmatically recommended that the President Ratu Iloilo appoint a caretaker Prime Minister to advise a dissolution of the Parliament and call for fresh elections. Instead, the next day, Ratu Iloilo allegedly "abrogated" the 1997 Constitution and re-appointed Bainimarama as Prime Minister, whose regime has continued till today.

You can also read Professor Anne Twomey's "The Fijian coup cases: The Constitution, reserve powers and the doctrine of necessity". And read "Dire Straits: a report on the rule of law in Fiji" (An International Bar Association Human Rights Institute Report, March 2009). This document also clarifies how a few aggrieved judges in 2006, sacrificed constitutionality and Fiji's well-being on the alter of their personal vendetta against other judges who they thought had acted unfairly against them. Reading just these three documents, any intelligent lay person would understand that if there was another independent court today, its finding would be that the 2009 alleged abrogation of the 1997 Constitution by Iloilo and the Bainimarama Regime were equally unlawful. Who better to explain that to us than Justice Anthony Gates.

The 1997 Constitution still exists: Anthony Gates

Twomey's article ended with a quote from a 2001 judgment by Justice Anthony Gates in the case Koroi v Commissioner of Inland Revenue. (Gate's words are given here in red italics, with my comments in black): "It is not possible for any man to tear up the Constitution. He has no authority to do so".

(i.e. neither did President Iloilo have any powers in 2009 to abrogate the constitution) "The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji … The fundamental law represented in a Constitutional document may only be changed in accordance with that Constitution."

(i.e. even the Ghai Commission cannot suddenly create a "new" Constitution outside of Parliament, even if approved by some "Constituent Assembly" appointed by the "usurper"). "Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces … Even the Glorious Revolution must eventually be tamed by the Constitution. For the courts cannot pronounce lawfulness based simply on the will of the majority. Nor can lawfulness be accorded to the tyranny of the mob.... Such tyranny lacks universal morality and the courts will not assist usurpers simply because they are numerous, powerful, or even popular."

(i.e. no "popularly approved" Charter can ride roughshod over the 1997 Constitution, and courts will not assist the usurping Military Regime, even if it is "powerful, or even popular") In an earlier 2000 judgement, Anthony Gates had justifiably admonished fellow judges Tuivaga, Scott and Fateaki: "Judges should remember their oaths of judicial office to uphold the Constitution. The presumption is that the Constitution remains unimpugned until pronounced otherwise in court".

Gates also criticized Qarase's 2000 court action to declare the 1997 Constitution abrogated: "But the rule of law means that the suspended state of affairs and the Constitution return to life after the stepping down of a responsible military power and after the conclusion of its work for the restoration of calm for the nation. There is no constitutional foundation of legality for the interim government or for the Constitutional Review Committee". This Gates judgment in the 2000 Chandrika Prasad case was supported by a 2001 Court of Appeal (Casey, Barker, Kapi, Ward and Handley JJA).

In summary, Bainimarama's demand that the 1997 Constitution must not be revisited has to be rejected by the Ghai Commission. Similar arguments may be also made about the alleged elimination of the Great Council of Chiefs, which is also an integral part of the 1997 Constitution.

The Great Council of Chiefs

The record of the Great Council of Chiefs is a very poor one, by any standard whatsoever. Read my 2007 article. The Military Regime is correct in pointing to the GCC's politicisation during the coups of 1987 and 2000. But the Regime was also guilty of using the GCC's authority during the 2006 coup, when the GCC's appointee as President, Ratu Iloilo, meekly accepted being shunted aside by Bainimarama, and after Bainimarama illegally removed Qarase as Prime Minister, ignominiously accepting re-appointment as President, and consequently doing all of Bainimarama's bidding. It is to Ratu Mara's credit that he refused to be used in 2000 when he was humiliatingly asked to "step aside". The GCC said nothing of their Presidential nominee Iloilo being abused in this fashion, nor did they collectively say anything about his subsequent actions all following the Regime's commands; nor did they make a stand when another President was illegally imposed on the nation, without their consent and ultra vires the 1997 Constitution. Note also that the three leading chiefly families within the GCC (the Maras, the Cakobaus, and the Ganilaus) who have traditionally provided the President, not only behaved without any constitutional ethics in 1987 and 2000, but also in 2006 and 2009.

There is little doubt that individual chiefs continue to provide strong leadership to their people in their own local areas. But collectively, they have failed Fiji. Told by Bainimarama to go away, the chiefs of the GCC collectively and meekly went away out of sight (except Ro Temumu Kepa). Most of the chiefs of Fiji have still done nothing about reforming their own provincial councils, by including educated and professional commoners who might guide them better through these turbulent modern crises in which the majority of the traditional chiefs have little to offer their people. Is it any wonder that many qualified commoners put up their hands to serve Bainimarama today, and Rabuka two decades ago. Nevertheless, whatever the GCC's failings, it is not for the Bainimarama Regime to abolish an institution which has a central role in the 1997 Constitution, for nominating the President and a half of Senate. Submissions to the Yash Ghai Commission should consider recommending that following the 2014 elections, there be a thorough review of the GCC, led by the GCC itself, with inputs from the elected government.

What of the military decrees?

The Ghai Commission faces a third legal dilemma: what can they recommend on all the military decrees promulgated by the Bainimarama Regime? The 2009 Court of Appeal recognized (repeated by Twomey) "the principle that the laws or acts of an invalid government that is in actual control of a territory may still be valid insofar as they concern the ordinary orderly running of the state, do not impair the rights of citizens and do not directly help the usurpation of power" (my emphasis). The Military Regime fails on all three qualifications.

First, they have ventured (disastrously) into numerous aspects of public policy, such as the FNPF restructuring and its investments, the Air Pacific shareholdings, fundamental changes in the tax laws, etc. - all actions far more than the "ordinary running of the state" Second, many of the Military decrees have taken away basic human rights of citizens to property (FNPF case, Nadi Airport leases, Momi assets), the right of recourse to courts, the freedom of speech and assembly. Third, the Decrees have prevented any legal challenge to be made to their assumption of authority. The resolution of some of these issues (like the FNPF pension restructuring) will be a nightmare for the judiciary, after a normal elected and accountable government returns. The Ghai Commission might help by giving some general directions.

Will the Constituent Assembly repeat the Charter Charade?

The Regime will face a large credibility gap with any "Constituent Assembly" that is set up by Bainimarama, given his betrayal of the NCBBF/Charter exercise. Many who served on the NCBBF, like Archbishop Petero Mataca and John Samy, may have originally believed in the objectives and the rhetoric of the Military Regime. They, like hundreds of thousands of people throughout Fiji, would also have been reassured by the clear statement in the Charter, of strict adherence to the 1997 Constitution. But they were all left high and dry, when Bainimarama abrogated the 1997 Constitution following the Appeal Court ruling in 2009. It is a sad symptom of the widespread lack of public accountability of leaders in Fiji, that neither Mataca nor Samy, nor leading lights like Akuila Yabaki, have ever made any public statement about the betrayal of the Charter and the NCBBF by Bainimarama's abrogation of the Constitution. All those who will take part in the "Constituent Assembly" following the Ghai Commission's Report, need to be constantly reminded of the contents of the Charter, still shamelessly alleged by the Regime as the gospel for Fiji's future.

Will this exit strategy be missed?

Prior to the 2009 Court of Appeal, the Regime and Regime supporters could have claimed some semblance of legality, based on the judgement by Gates, Pathik and Byrne. That judgement was however over-turned by the 2009 Court of Appeal, and had the coup drivers and supporters then followed the very pragmatic advice of that Court of Appeal, they could have retained some semblance of legality. But sadly for Fiji, they failed to take that exit strategy, and those responsible for advising Bainimarama to abrogate the Constitution, will regret it to their dying days.

Today, this Ghai Commission offers one again, a peaceful exit strategy to Bainimarama and his Military Council, Aiyaz Khaiyum, and their cabal of secret legal advisers (whose identities are all known by Fiji lawyers). The Yash Ghai Commission also offers a redeeming moment to some of our political leaders who have an equally bad record on abiding by the 1997 Constitution. Hopefully, their current co-operation is genuinely for the good of the nation, and not just a Machiavellian "marriage of convenience" that will be discarded when the "common enemy" is out of sight.

The "silence of the lions" in the Fiji Law Society

It is understandable that lawyers cannot be expected to give free public advice on all legal matters- that is after all their daily bread and butter. But the Constitution is not a "daily bread and butter issue". Unfortunately the many grey areas in the 1997 Constitution have been a fertile ground for many of our lawyers to make minor fortunes in the inevitable political disputes so readily taken to court in the past. Our failure to eliminate the grey constitutional areas before crises develop, has virtually destroyed our country for the last ten years. Read my article from The Fiji Times (15 Feb 2002) here.

This advice was not acted upon by our political parties, nor by the Fiji Law Society. Indeed, the members of the Fiji Law Society are not likely to be accused of selflessly serving the public with solid professional advice on constitutional matters. The Fiji Law Society might also wish to take the opportunity offered by this Yash Ghai Commission to brighten their collective reputation, which has been considerably tarnished in recent years.

Public recommendations to the Ghai Commission

To assist the Ghai Commission, the Fiji public might wish to consider making the following general recommendations:

  1. to declare that the1997 Constitution is still in place and must be abided by, including for its revision following the Ghai Commission Report and approval by the "Constituent Assembly".

  2. to ensure a lawful implementation of the Ghai Commission Report, if unanimously supported by the political parties,

    (a) the 2006 elected Parliament and Senate be recalled for the sole purpose of approving the Recommendations for the revision of the 1997 Constitution;

    (b) the lawful dissolution of parliament following resignation by the last elected Prime Minister,

    (c) the call for fresh elections under the revised electoral system; and

    (d) the appointment of a civilian administration comprising members who will not stand in the 2014 elections, and who will only conduct the "ordinary business" of the state, nothing more.

The public also needs to make specific recommendations for:

  1. the reform of the electoral system (I will give my suggestions on this).

  2. the removal of all ambiguity in the 1997 Constitution for the appointment of Presidents and Prime Ministers and the dissolution of Parliament.

  3. the maintenance of the President as a "symbolic head" above all party politics, independent of passing governments, providing moral and ethical leadership for all Fiji citizens; with no executive powers which would merely replicate the elected government.

  4. agreement on a post-2014 election initiative for the reform of the GCC.

  5. agreement on a post-2014 election initiative for the reform of the Senate.

  6. agreement on a post-2014 election initiative for the regularization of military decrees, consistent with the 1997 Constitution.

  7. explicit provisions for the legal and state response to any further military coups.

  8. the nature of amnesty provisions which may be provided.

  9. the establishment of a Truth and Reconciliation Commission.

  10. the running of a referendum on the revised Constitution at the first national elections, with any remaining significant contentious issues, to be placed for approval or rejection on that Referendum Ballot paper.

Evidence of support for Submissions

The political parties should learn from the Charter exercise when the Regime trotted out more than 400 thousand signatures allegedly in support of the Charter. It may once more come down to counting numbers throughout the country, who support this or that submission. All those who make submissions to the Ghai Commission, need to thoroughly explain their submission to the people, gather supporting signatures from those over 18, who must be reminded not to sign twice. To assist international auditing of these signatures they need to follow a template and put all the data on a spread-sheet (simple exercise nowadays) to be also given to the Ghai Commission:

Surname Given names Age Address
       

Political parties should understand the long-term advantages to themselves in conducting this public education exercise (of course, they could leave it to the Regime, Akuila Yabaki's CCF, and essay writing competitions).

Oh dear. What a pain, eh? Law and order, and good governance, does not come easy, does it?


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