Saturday, June 02, 2007

Land grab behind Fiji's coup?

By MICHAEL FIELD - Fairfax Media | Friday, 1 June 2007

A couple of big balaclava wearing men break into a lawyer's home and a day later two other lawyers are hauled into military custody.

Coincidence, or is something more sinister afoot in military ruled Fiji where there are emerging signs that its latest coup is leading to a battle over land and race, yet again. Wellington lawyer Janet Mason, whose husband Roger McDonald was bashed over the head during the break-in of her Fiji home, is cautious a political connection. Like the two lawyers grabbed by the military, Ms Mason advises the Great Council of Chiefs (GCC), suspended in April by Commodore Voreqe Bainimarama.

He staged his coup last December wanting to end what he claimed was a corrupt government while issuing a vague manifesto on a new multicultural society. Ms Mason and Fijian lawyers Mr Kitione Vuataki and Mr Savenaca Komaisavai, hauled into custody, represent chiefs who are challenging in the High Court the suspension of the GCC. They have named interim Fijian Affairs Minister Epeli Ganilau and Mr Bainimarama as respondents. An influential figure in the new regime, academic lawyer and military appointed chair of the Electoral Commission, Dr Shamsud Sahu Khan, wants land laws scrapped.

After bitter tribal wars, Fiji's rulers petitioned Britain to annex the islands, achieved in 1874 with the signing of the Deed of Cession signed between representatives of Queen Victoria and the Fijian chiefs.

Part of the deed states: "That the absolute proprietorship of all lands not shown to be now alienated so as to have become bona fide the property of Europeans or other foreigners or not now in the actual use or occupation of some Chief or tribe or not actually required for the probable future support and maintenance of some chief or tribe shall be and is hereby declared to be vested in Her said Majesty her heirs and successors."

Under Fiji's three constitutions, indigenous land, about 90 per cent of all land, cannot be sold. Ethnic Indians, mostly descendants of indentured labourers imported by sugar plantations, cannot buy land.

Dr Khan's argument was that Fijians are not entitled to this protection. Land should be state owned.

"There have been a lot of assumptions and practices which may not have been correct from the legation standpoint," Dr Khan said.

"In my submissions it is very seriously questionable as to how as now claimed that some 85 per cent to 90 per cent of the lands in Fiji are native land. This certainly raises very important legal and constitutional issues that need to be properly addressed by all concerned now."

Land had been transferred to "the indigenous Fijians to the exclusion of all other races who comprise more than 50 per cent of the population of Fiji..."

Fiji last had a census in 1996 when it found that 51 per cent were indigenous and its Bureau of Statistics estimated that last December the number had risen to 55 per cent.

Despite a State of Emergency warning against incitement, the military took no action when Dr Khan floated his idea.

When Mr Vuataki and Mr Komaisavai questioned the paper, the military accused them of inciting the indigenous people and hauled them into their barracks for questioning.

Ms Mason found that curious.

"If Mr Sahu Khan has recently presented this paper without being detained for inciting instability then I would have imagined that, for instance, I should be free to present alternative views at workshops around the country without fear of being detained...

"My concern is that this is meant to be an interim (caretaker) government - they have not been elected - as such, I think it is highly inappropriate that such far-reaching policy changes are being proposed."

Ms Mason says Dr Khan's paper had very little analysis in it and no understanding of the significant amount of jurisprudence in the common law aboriginal title area.

"There is not even a mention of the Mabo case -where the Australian High Court went to great lengths to overturn the reliance on the doctrine of terra nullius - essentially the idea that there were vast areas of "wasteland" that no-one owned as such land was not actively "used" - the courts held that such a view was now outdated as we now know that indigenous peoples had intricate systems and rules and regulations over such land."

Ms Mason, who is of Fijian heritage, believes the indigenous would be overwhelmingly against Dr Khan's proposals. In the current political climate "this would create certain problems of themselves - there would also be a rather strong reaction from indigenous Fijians."

Ms Mason, a public and constitutional law expert with her own Wellington practice, Pacific Law, was last week in Fiji on the GCC case. Staying in Lautoka she and her husband were disturbed by intruders who grabbed her laptop computer but left her files alone. Her husband was hit over the head with a heavy torch and a brief struggle followed.

"There was blood throughout the house. The bigger guy who hit him managed to get away and he ran after him through the house.

"It was like a murder scene with blood everywhere. It was a horrible experience."

Home invasions are common in Fiji but Ms Mason pointed to a number of differences in her case: "It's very difficult to say the motivation. I have no proof either way."

Lautoka police have made no arrests in the case or recovered the property.

Mr Vuataki's crime in military eyes was to question Dr Khan paper and noted that the last time the GCC had been suspended, for six years from 1904, the indigenous people had lost 200,000 acres of land.

"We are going to court because we don't want to lose any more land like the 200,000 acres with the suspension of the GCC," he said.

After spending two days in military custody he was freed and announced he would be more careful over what he said in future.

Military appointed Attorney-General Aiyaz Sayed-Khaiyum said the lawyer's detention was in respect of allegations of incitement.

"All citizens including lawyers should they breach the law or have allegations of breaches shall be investigated and questioned," he said.

"Miss Mason is unfortunately taking liberties from across the Pacific, in terms of relaying the truth.

"There's absolutely no intimidation of lawyers who are representing various clients of theirs in constitutional matters."

In January prominent corporate lawyer Richard Naidu was seized from his Suva home at night and detained by soldiers for several hours. An outspoken critic of the military he never said publicly what happened and is now silent on the regime.

Fiji's first two coups that were staged by Sitiveni Rabuka against a fear by indigenous Fijians that Indians were taking over the country. He overthrew an Indian dominated government. He lost power in 1999 when Indian Mahendra Chaudhry won an election.

In 2000 an extreme indigenous group - personified by mixed blood George Speight - overthrew Chaudhry. Ironically Bainimarama, who had declared martial law at the time, did not restore Chaudhry to power and eventually an indigenous government won two elections.

Although Bainimarama is Fijian, the key actors in his regime now are mostly Indian and, oddly, Muslim. Dr Khan and Mr Sayed-Khaiyum are in-laws, the military's lawyer, Colonel Mohammed Aziz, is occasionally tipped to head the army while in the judiciary the indigenous Chief Justice, Daniel Fatiaki, was sacked after a small group of judges, headed by Justice Nazhat Shameem, advised that he be sacked.

Fiji is slipping toward an ethnic conflict with the prize being the land in a country that once billed itself as the way the world should be.

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