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Saturday, March 23, 2013

Fiji: Tyranny as political checks and balances are torn up

 
From the open forum blog on Fiji Today:
  
The Bainimarama/Khaiyum Constitution (ADACIP)

Professor Wadan Narsey

22 March 2012

The Bainimarama/Khaiyum Constitution (BKC) is the final stage of a “successful” coup.

If elections are held in 2014 and an elected Government comes into place, the international community may be relieved to see a cosmetic end to the most painful chapter in Fiji’s modern history.

But we need to remember, the Bainimarama Regime has never abided by

* any Constitution or any Oath of Office that any of them have ever taken,
* any promise or commitment made to Fiji or the international community, or
* any ruling by the judiciary which goes against them.

In 2006, Bainimarama and the RFMF, removed the constitutionally elected prime minister and made himself Prime Minister.

He promised elections by 2009 but broke that promise and has now ruled for more than six years.

The Regime’s Charter, allegedly approved by three quarters of Fiji’s adults, stated the 1997 Constitution would be supreme, but when the Appeal Court judgment went against them in 2009, Bainimarama abrogated the 1997 Constitution.

In 2011, the Regime appointed its own Ghai Constitution Commission (stacked with Regime supporters) to consult widely and write a Constitution which abided by all the Regime’s non-negotiable principles (which they did) AND which would be vetted by the Constituent Assembly AND the Chief Justice’s Tribunal.

But with Ghai Draft not completely to the Regime’s liking, both the Commission and the Draft Constitution, were flippantly trashed.

I wrote then (http://narseyonfiji.wordpress.com/2013/01/14/trashing-the-ghai-constitution-the-positives-14-january-2013/

Over the next six months, meticulous comparisons between the Regime’s Constitution and the Ghai Draft Constitution- what exactly is changed, added and left out – will reveal more facts to Fiji and the world, about the Regime’s “real Roadmap”.

I also noted that Fiji people could

“watch with deep interest (and remember) who exactly are the “people’s representatives” who will turn up to rubber-stamp the Military Regime’s Constitution. There is a definitely a new ball game in town.”

Well, no need for Fiji people to tire their eyes any further: the Regime has moved the goal-posts again, and there won’t be any Constituent Assembly.

Why not? Bainimarama alleges the political parties were fiddling their registrations (and the sun was shining). Right.
Bainimarama has decreed: “You, the people of Fiji” will now be the Constituent Assembly. Right.

So the people of Fiji can personally write or talk to the Regime (with their names, addresses, phone numbers etc.) and the Regime will take on board your comments. Right.

Bainimarama promises “we will finalize the Constitution to have it ready for implementation no later than the 12th of April this year”.

So even the pliant President won’t be required to assent to the Constitution, but “We”? Right.

There is a new ball game in town and the Baimarama/Khaiyum Team is winning.

As the purchase and arrival of the Airbus shows, it is incredibly easy for Regime spin doctors to get Fiji’s population people to sing and dance, cry with pride at being a Fijian and “owning” their own airplane (even if it is on mortgage, and the only difference is the new colors inside and outside the plane).

Out of sight and out of mind are Fiji’s

* lost billion dollars of income over the last six years
* increasing mountains of public debt
* creaking and leaking FNPF pension fund
* mounting unemployment
* falling real incomes (except for the military),
* increasing poverty
* record rates of suicides and attempted suicides, and
* unbelievably sordid violence against women, children and even babies.

Our people, no doubt orchestrated again by the Fiji Sun and Fiji Broadcasting Corporation, will soon sing and dance over the new Constitution, promising racial equality, with one man, one vote. Right.

The rest here, is merely for the record.

What’s different in the BKC?

The Ghai Draft Constitution did not grant immunity for abuse of human rights; it granted immunity only to those who took an oath renouncing their support of illegal regimes; and it allowed citizens to go to court with their grievances and for damages.

The BKC grants total and unconditional immunity from 2000 to the 2014 elections, with no exceptions, no legal challenges allowed, or recourse for damages for anyone injured by those granted immunity.

People are still not understanding that the immunity being granted is not from 2006, but from 2000 “under the Limitation of Liability for Prescribed Political Events Decree 2010″ (section 153 (1)).

Gone is the Ghai requirement (to discourage future coups) that all members of the security forces (army, police and prisons) must be explicitly required to not obey unlawful orders from their superiors. So, without that provision, the security forces can continue to follow unlawful orders, with total impunity, as they have done for the past six years, and do more coups when they feel like it. So look forward to ADACIP (no prizes for guessing the two meanings of this acronym).

Gone is the requirement that Regime Decrees must be modified in order to be consistent with the new constitution and its fundamental human rights, and that legal proceedings terminated by decree, must be “revived and may be proceeded with under this Constitution”. The Ghai Draft Constitution even listed those decrees that had to be changed.

No more. The BKC states that all decrees and promulgations will continue in force. No legal challenges will be tolerated. No legal cases will be resuscitated (so forget the Burness pensioner case).

In the Brave New World of the BKC, no future Parliament will EVER be allowed to change any of the entrenched provisions such as the unconditional immunity and restriction of rights to go to court. Right.

There is no longer any role for the Tribunal to be appointed by the Chief Justice to “approve” the BKC.

The Chief Justice can now say with a straight face (as he did a few days ago) that the judiciary must objectively and impartially apply the law as it is, and not be part of the law-making process. Right. (we will all practice amnesia over the events of 2006 and the immunity provisions for the judiciary in the BKC).

The BKC not only imposes interesting limitations on, but grants interesting discretion, to the judiciary.

112(4) also states that “a judicial officer is protected from civil or criminal action for anything said or done, or omitted to be done, in the performance of a judicial function”.

The Attorney General, in addition to many other powers, is also granted powers to “intervene in proceedings before the High Court” (40(7)).

Also gone is the requirement that the Regime would have had to give way to a caretaker government six months before the 2014 elections. Right.

Other interesting differences

Those with the time and energy can go through the BKC and the Ghai Draft and see what’s been added and what’s been deleted.

That relating to the media may be read here, in Marc Edge’s commentary:
http://fijimediawars.blogspot.co.nz/

There is the usual great rhetoric on basic human rights such as

* freedom of expression, publication and media
* freedom of assembly
* freedom of association
* freedom of employment relations
* freedom of movement and residence
* freedom of religion (the Catholic Church in Fiji like to might read Section 22 (6))

BUT, for each of these rights, the BKC devotes even more space on the limitations of these rights.

With the elimination of the Upper House, there is a total lack of checks and balances to Parliament.

Once a Bill is passed, no one, not even the President has the right to dissent, or even ask for a reconsideration. The Bill will be “deemed to be assented to” within 7 days.

All public service officers will be “under contract”.

Civil servants must retire at 55, unlike the Chief Justice (who must retire at 75) or High Court judges (who must retire at the age of 70 but be eligible to be promoted) or Commissioners of Police and Corrections and the Commander of the RFMF (for whom there is no retirement age).

Constitutional lawyers are going to have a field day.

Who is the BKC for?

The Oaths and Affirmations at the end of the BKC document states that Prime Ministers, Ministers, Parliamentarians, and judicial officers must all swear allegiance to the Constitution.

Except the Oath and Affirmation for the next President. An interesting faux pas?

With Commodore Bainimarama declaring that he will stand for elections as Prime Minister, who is in their plan for President? Some might think that it will be Superman.

But a real international PR scoop and yet another “first” for the Regime and Fiji, might be an Indo-Fijian AND woman President? No prizes for guessing who THAT might be.

Is the Constituent Assembly Dead?

The Regime refuses to call a Constituent Assembly.

But nothing stops the people of Fiji from calling their own People’s Constituent Assembly.

All the social, political, religious organizations and concerned individuals who want to, can have a two day meeting to discuss what is in the BKC; agree wherever they can on common concerns and positions.

They can publish their communique through an advertisement in the media and as an open letter to Commodore Bainimarama. They have nothing to fear: all this is allowed by the BKC.

Fiji people have so far meekly accepted being herded here and there, like sheep through the corrals of Animal Farm.

But they could announce, as in Merry Olde England: the Constituent Assembly is dead. Long live the People’s Constituent Assembly!

Plus an associated legal comment:

A legal comment by Fiji’s Shortest ever Resident Magistrate
 
March 23, 2013


I have only looked over the document (the new draft Constitution) for ten minutes but what I have seen scares and shocks me. The findings below relate only to the judiciary and the rule of law.

It is a hallmark of any democracy that power is not concentrated in to a few sets of hands. That is the reason we have parliaments in the first place.

Here are my initial observations (my suggestions for an easy remedy are italicised):

Point 1.

The Chief Justice becomes acting President in the absence of the President. (s 87) (Parliament should choose a Vice President [semi –retired senior public figure] selected with 50% of support from the house.)

Point 2.

The PM can request the CJ to establish a tribunal to remove the President (s88 (3)
(The two person tribunal should be recommended to parliament by the AG. Parliament may then make a motion in its own right, to dismiss the president [ requiring a 75% majority]after allowing the President to show cause before the parliament. This should be a function of the parliament and not the PM and CJ)

Point 3.

Only the president can remove the CJ (s110 (2)
(The two person tribunal to investigate and recommend the dismissal of the CJ should be established by the AG. Parliament may then make a motion to move the President to dismiss the CJ [requiring a 75% majority]after allowing the CJ to show cause before the parliament.)

Point 4.

The quorum of the Judicial Services Commission (JSC) IS the Chief Justice, and two others. S103(2)
(The quorum should be larger and more diverse. The current proposal is a dangerous precedent.)

Point 5.

The president acting on the advice of the JSC, can establish a two person tribunal to remove a judicial officer (other than the CJ or PCA). S111(3)
(The two person tribunal should be established by the AG acting on the advice of the JSC. Parliament may then make a motion to dismiss [requiring a 75% majority]after allowing the judicial officer to show cause before the parliament.)

Point 6.

The Solicitor General is appointed on the recommendation of the JSC after consultation with the AG ( s115 (3)
(The recommendation of appointment of an SG should be made by the AG to parliament requiring 50% of support from the house. This should be at arms-length from the JSC )

Point 6.

The Solicitor General can be removed from office on the recommendation of the JSC. (s115 (7) as per s111)
(The recommendation for removal of an SG should be made by the AG to parliament. Parliament may then make a motion for the President to dismiss the SG after allowing the SG to show cause. This should be at arms-length from the JSC. )


Point 7.

The Director of Public prosecutions is appointed on the recommendation of the JSC after consultation with the AG ( s116 (3)
(The recommendation should be made by the AG to parliament requiring 50% of support from the house. This should be at arms-length from the JSC )

Point 8.

The Director of Public Prosecutions can be removed from office on the recommendation of the JSC. (s115 (7)
(The recommendation of removal of the DPP should be made by the AG to parliament. Parliament may then make a motion for the President to dismiss the DPP after allowing the DPP to show cause. This should be at arms-length from the JSC. )

Point 9.

The JSC has authority over all public servants employed in the Judicial Department. S 107
(Judicial Department employees are not judicial officers. They should be dealt with by the Public Service Commission. This is another dangerous and unwarranted precedent.)

Point 10.

FICAC is a stand alone commission of inquiry and not related to the judiciary it should be a chapter in its own right within the constitution. S 114

The Commissioner is appointed by the President on the advice of the Attorney General. (s114(3)
(The Commissioner should be appointed by Parliament on the advice of the AG with 50% support of the House).

Point 11.

Section 114(5) allows the FICAC to conduct criminal proceedings.

This is an extremely dangerous precedent. (The FICAC should not be able to commence criminal proceedings in its own right. It is a commission of inquiry, an INVESTIGATOR NOT A PROSECUTOR. It is not a court of law.
The FICAC as with any standing commission of inquiry. It should conduct investigations (similar to a police service) and then refer its finding to the DPP.)

Point 12.

Under s114(7) the FICAC is subject to the authority of the courts.

(This is hard to interpret. The FICAC should ONLY be answerable to parliament not subject to the authority of the courts, except insofar as they require the courts to approve the exercising of its coercive powers. )


The Nail In the Coffin !

Point 13.

All current judicial officers (including the Solicitor General and Director of Public Prosecutions) will continue in office after the elections ?(s118)

I recall a conversation I had in Sydney with Mr Gates in March 2012. I would swear to the truth of this conversation if I was placed under oath:

I said (words to the effect): If I accept the position (Head of the Legal Practitioners Unit) what happens after the elections. We may all be put up against a wall and shot.

He said (words to the effect): Don’t worry about that. I will ensure that all existing contracts will be honoured by any new government.

How did he know that? You decide for yourselves. (see s118)


SUMMARY
The JSC will hold powers that should be held by parliament alone.
The Chief Justice will continue to be the most powerful man in Fiji, despite potentially committing serious crimes against the justice system. The CJ will be president from time to time. The PM can request the CJ to remove the President? Only the President can remove the CJ?

The Chief Justice controls the hiring and firing of all judicial officers including the Solicitor General and the Director of Public Prosecutions. The DPP and SG cannot be independent under these provisions. They are under the direct and indirect control of the Chief Justice (as Chairman of the JSC).

Each judicial officer is under the control of the Chief Justice (as Chairman of the JSC). They cannot be seen to be independent. They must be under parliamentary control for independence to be achieved.

A proper and transparent JSC should only have the function to investigate and make referrals to parliament in relation to judicial officers ( and not senior statutory positions such as the SG and DPP). It should not have the powers to dismiss any judicial officer which are rubber stamped by the president.

In a properly constituted democracy , the JSC has a the function of investigating a judicial officer and making recommendations to Parliament. It requires parliament to make an address and call the Judicial Officer before the House to show cause. (This has happened on only a few occasions in NSW over the last 100 years).

In a properly constituted democracy the offices of the DPP and Solicitor General should be independent and in no way under the control of the JSC (Chief Justice, PCA and one other).

The Current Chief Justice of Fiji

The Chief Justice is the person most responsible for the displacement of the rule of law in Fiji. He has also destroyed any semblance of the separation of powers doctrine. This did not have to be the case. The Prime Minister gave the Chief Justice free reign to destroy these institutions via decree. The actions of the Chief Justice permeate all aspects of Fiji’s governance.

In my respectful view, current judicial officers, including the Chief Justice, have potentially committed criminal offences, i.e. perverting the course of justice and abuses of power and process. These offences carry terms of imprisonment if guilt is proven. Mr William Marshall has already documented his findings by way of signed petition. If the allegations made by Mr Marshall were investigated and substantiated, the Attorney General and several judicial officers, would likely serve lengthy custodial sentences.

HOW can these Judicial/ legal persons remain with an incoming parliament?

HOW can they be properly investigated?

Under this draft, they cannot be removed or investigated by any incoming parliament. (A backup to the immunity provisions perhaps).

The Chief Justice has not only shielded himself and the Attorney General (and their accomplices) from potential criminal investigation and prosecution, the CJ has drafted a constitution that will allow him to continue to be the most powerful man in Fiji.

Support this Constitution if you want a neo colonial master. Do you want Mr Gates to be your president from time to time? Reject it outright if you want your new parliament to have proper functions, independence, transparency, accountability and powers, i.e. over the DPP, SG and other statutory bodies and commissions.

How will the DPP ever investigate and prosecute Gates. He appoints the DPP and he can terminate the DPP. Let judges judge. Have a constitution that gives the appropriate functions to Parliament and not to one man and two of his “rubber stamp” friends.

I still believe that many of the reforms that have been implemented by the Prime Minister are to be applauded. However, the destruction of the rule of law and judicial process that has been under the delegated power of Mr Gates, undermines these reforms.
The absence of the rule of law and proper structures of transparency and accountability, permeate all levels of Fiji life. This will continue under this proposed constitution. It will make any incoming parliament a toothless tiger. The Prime Minister has allowed the legal draftsman, under the guidance of Gates and the AG, to utterly destroy judicial, SG, and DPP independence.
The continuance of current decrees also continues the lack of independence of the entire legal profession in Fiji. The Chief Registrar has oversight and power over the Legal Profession (Legal Profession Decree 2009.) . The Chief Justice has complete control over the Chief Registrar. How much power can one man have?

I apologise if there are any errors in this report. This report was drafted in haste. I am prepared to provide a more comprehensive and refined report, if the exhortations contained herein do not fall on deaf ears. To those who see what I see, stay strong. The closer Fiji gets to the elections the further away democracy drifts. To those who do not see as I see, I respect you right to make your own choices. I am not attempting to sway opinion. I am merely giving you my initial observations as an independent observer and an advocate for the rule of law.

I do this in my own time at my own expense. I have NO vested interested. I remain banned for life from Fiji after my unlawful arrest and detention at Nadi in November 2012.

If you wish to make Mr Gates the most powerful man in Fiji, then so be it. If you want him to be your president from time to time, so be it.


Greg Bullard 24/3/13
Fiji’s Shortest ever Resident Magistrate (October 2012)

__________________________________________________

It is not too much to say that when the executive has taken over the legislature and the judiciary, the State has become fascist in nature. Effectively, the regime has given itself, the military and the judiciary complete retrospective amnesty and carte blanche for the future...

“And you have that letter of the cardinal?” said D’Artagnan.

“Here it is,” said Athos; and he took the invaluable paper from the pocket of his uniform. D’Artagnan unfolded it with one hand, whose trembling he did not even attempt to conceal, to read:

Dec. 3, 1627

It is by my order and for the good of the state that the bearer of this has done what he has done.

“Richelieu”

“In fact,” said Aramis, “it is an absolution according to rule.”

“That paper must be torn to pieces,” said D’Artagnan, who fancied he read in it his sentence of death.

“On the contrary,” said Athos, “it must be preserved carefully. I would not give up this paper if covered with as many gold pieces.”

Maintaining power simply by force and the corruption of political and judicial controls is as dangerous for the tyrant as for his unfortunate subjects, as Shakespeare's Scottish usurper reflects:

                                          ... But in these cases
We still have judgment here, that we but teach
Bloody instructions, which, being taught, return
To plague the inventor.This even-handed justice
Commends the ingredients of our poison'd chalice
To our own lips.


I have recently compared President Bainimarama's predicament to holding a tiger by the tail; he appears to be persisting in his dangerous course.

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