Tuesday, November 06, 2012

Ghai Defends Impartiality of Constitutional Process

Radio Australia News

More trouble in paradise - with the Fijian government rounding on the Constitution Commission for using a paid consultant who - it's alleged - also made his own submissions during the commission's public hearing process.

The consultant is Ratu Joni Madraiwiwi - he's a former vice president of the country... and the government's unhappy that he supported a submission in favour of declaring Fiji a Christian state.

Interim Prime Minister Frank Bainimarama's put out a statement saying it's now untenable for Ratu Joni to continue working for the Commission.

The Commission's chair, Professor Yash Ghai, says he stands by the initial appointment of Ratu Joni Madraiwiwi:

Presenter: Campbell Cooney

Speaker: Ulamila Kurai Wragg, journalist, Cook Islands
GHAI: He was perfectly qualified to be appointed a consultant. There is some misrepresentation, some misunderstanding on the part of the Prime Minister. He did not actually present a submission advocating a Christian state. He's well known over the years of arguing for racial integration or a neutral state apparatus between the different religions and communities, and the submission was made by the community within which he lives that he did not actually present it, and he went on to say that he supports it . So I feel that the Prime Minister must have some other reason for his dislike of Ratu Madraiwiwi who's highly respected throughout the country.

COONEY: Certainly Ratu Joni Madraiwiwi at times has been critical of the interim government, critical of the coup. He's not the only person of course who has spoken out against it. But is it perhaps that he's seen as a sign of the days before the interim government came into power? I can only speculate on that, but I'm curious is that how you see it?

GHAI: Well probably not so much that I think. I think there was this trial of Mr Qarase who was the former prime minister and whose regime was overthrown by the Prime Minister, and there was a trial against him on some charges of fraud. And at the end of the case the court invited statements on the character of the person, which is often used to determine the actual sentence. And Ratu Joni came and spoke in favour of Mr Qarase, and that I think has probably upset the Prime Minister.

COONEY: Alright now I understand the government was instructed by Commodore Bainimarama to change the terms of the decree under which the Commission operates. Now have you seen those changes, what will it mean for the work that you're trying to do?

GHAI: Well there comes a number of issues. The most important perhaps from my point of view is that it eliminates the period in the process where draft would be placed before the public and they would have a few weeks to discuss it and debate it before the Constituent Assembly meets. And the views that people express would also be conveyed to the CA. That has been eliminated so that from the time the draft is prepared and the Constituent Assembly meets is now barely a week, and maybe not even a week. So there will be no opportunity for the people or indeed members of the Constituent Assembly to absorb the recommendations and think about them individually, in groups and organisations before the process of debate in the CA starts. This for us is a very serious problem because we have been assuring people there will be a period of time for this kind of debate, and the Constituent Assembly members themselves will have an opportunity to study the document carefully before they begin to debate it. And that is a very serious lacuna in the process.

COONEY: Have you communicated your concerns to the interim government and to the Prime Minister?

GHAI: Yes I have talked to the Prime Minister about this a few times, and they have given different reasons; the one that she gave me was that this would be in some sense an invasion of the right of the CA, I don't quite see how. And the Attorney General was quoted yesterday as having said the people have already talked to the Commission, and so there's no need for further consultation. The point is that people talked to us about their preferences, their proposals. Now they will have a concrete document to react to, it is a quite different exercise. And so neither explanation is really convincing.

COONEY: It seems on the face of it Professor Ghai that it's a move away from many of those commitments made about what the role would be and the way that this constitutional commission would work?

GHAI: Yes I'm afraid that is quite true, there has been massive interference. Now I get emails from PM to do this or not to do that, and this is a kind of harassment. We've also been now told to publish any newspapers ads for which we pay, every single expense we have incurred since the beginning of July. Now while we greatly welcome transparency and indeed there's a provision in the decree for which I'm responsible, which commits the commission to account to the people a report of our processes and funding, as well as a very professional audit of our financials before we are formally wound up in December. And it's also a little bit puzzling that a government which is so wedded to secrecy should suddenly be converted to transparency.

COONEY: Does this concern you and the whole process towards elections in 2014?

GHAI: Well it does because another position they have removed is our examination of existing laws for possible incompatibility with the draft constitution. And there are hundreds of decrees past since the coup which have stripped the rights of access to courts, media is under pressure subject to heavy penalties, trade unoin rights have basically been removed, civil servants have no protection. And it seemed to us that a lot of these decrees needed to be amended and in some cases repealed. Now that power has been taken away from us, and I do not see how Fiji is going to have a free and fair election unless these decrees are cleaned up. So that power has been taken away and it's extremely worrying. This change was brought out last week in the last month of our process, we have spent a lot of time, effort and money into examining all the decrees and the proposals for change, and at this last stage we are told that is not our responsibility.

COONEY: Are you considering this has slightly been an untenable position for yourself Professor Ghai?
Dictator Bainimarama with Ratu Joni pre-2006 Coup

GHAI: Well it is a very difficult position for me indeed.

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