Coalition Hiding What they want to change in Constitution - Sayed-Khaiyum
FIJI NEWS
Former Fiji Attorney-General Aiyaz-Sayed-Khaiyum has labeled the coalition's government's rush to constitutional changes as underhanded and lacking legal merit.
The former AG accused the Coalition of hiding what changes they want in the Constitution, meaning they are deliberately escaping accountability to the people
He also says that the government is not following the proper steps, which require approval from most MPs and public votes.
Sayed Khayum believes the changes would give MPs too much power and take away the people’s rights to have a say.
He also thinks that the government should focus on fixing problems like the high cost of living and unemployment instead of changing the constitution.
According to Sayed-Khaiyum, below are the key facts which the coalition is ignoring:
Fact 1:
Our Constitution can be amended under Chapter 11, Sections 159 and 160.
The Constitution can be amended if 3/4 of the MPs agree for the amendment.
This is the first step.
The second step is that the proposed amendment must be sent to the Electoral Commission which then puts it to a vote for all Fijians who are registered voters, to agree or disagree with the proposed amendment by Parliament.
If 75% of the registered voters agree with the amendment, then that amendment gets approved and goes into effect.
It is very simple. It is not a complex process.
You do not need to be a mathematician to read the Constitution, nor do you need to be a mathematician to undertake the amendment process as implied by some on the Government side.
You simply need to follow the Constitution, which is the supreme law of the land.
So why are people like Graham Leung, who is supposed to uphold the constitution, as he swore on the Holy Bible to do so, not advising the Prime Minister that they should follow the constitutional process?
It is not impossible to follow the Constitution, and the fact of the matter is, they have not even tried to follow it. There is no need to go to the Courts to follow the Constitution.
Fact 2:
Graham Leung said that there was a ‘conflict between the provisions section 159(2)(c) of the constitution and the overall objective of chapter 11 of the Constitution’.
He is wrong there was and is none.
Furthermore, the legal position which any law school student would know is that you cannot bring in a Bill that is in contravention of the Standing Orders of Parliament, and in contravention of Chapter 11 of the Constitution itself.
You also cannot suspend Standing Orders to enable the tabling of such a Bill when it is not only out of order under the Standing Orders, but is enabling an unconstitutional amendment, and a breach of the Standing Orders.
While some of these matters were pointed out in Parliament, the House was allowed to proceed to take a vote.
Fact 3:
When amending the Constitution, you cannot take away the right of the Fijian people to have a say in the amendment of the Constitution, as provided for under 159(2)(c).
The Chapter on the amendments states no amendment to the Constitution may ever repeal, infringe, or diminish the effect of the chapter.
Put simply, for those who are yet to understand it, both inside and outside of Parliament, you cannot change the ¾ requirement of approval by the MPs, and you cannot take away the right of ordinary Fijians from having a say as to how they want to amend the Constitution.
That is the legal position.
Graham Leung says in his ‘Press Release, 10 March’ (which is replete with contradictions) that ‘we have never had any referendum in this country’ so therefore he wants to go back to not having a referendum requirement.
His logic is just because a provision did not exist in the previous constitutions, we therefore should not have it in the 2013 Constitution.
Does that mean that because the previous constitutions did not have the socio-economic rights that the 2013 Constitution has, that we should now take away those rights from the Fijian public? Or conversely, the fact that the previous constitutions had divided us Fijians along ethnic lines under the electoral system and had constituencies that were essentially gerrymandered and discriminated against urban iTaukei voters, we should therefore bring those provisions back?
Referendums give power directly to the voters of Fiji. Graham Leung’s impotent justification through the use of very pedestrian logic demonstrates the lengths that the proponents of the failed Bill will go to, to undermine the inclusive and participatory democratic process that the 2013 constitution has laid out.
Fact 4:
It is not difficult to achieve the 75% requirement if the Fijian public believes that the amendment is required.
This will mean that when Parliament is presented with an amendment, those seeking the amendment should spend the time effort and energy to inform ordinary Fijians as to why such an amendment is required.
It is only through widespread consultation that the voters of Fiji will be well informed.
In many countries throughout the world, when governments need to amend the constitution through a referendum, they engage in a deep, meaningful and informative process before the vote is carried out by the voters.
They do not rush such matters through in an environment of opaqueness. Everything is made crystal clear.
Plus, in a country where we have had 4 military interventions in the governance of the country, where we are now effectively on our fourth constitution and all of this only from 1970, we no longer need constitutional, legal and governance instability.
We need stability because if we don’t, we will face a socio-economic disaster. As it is with this government with their inability to govern effectively and implement credible policies, we have seen a rapidly growing gap between the rich and poor, more people falling into poverty and thousands of Fijians leaving our shores in the past couple of years.
And those who want to compare us, our constitutional requirements for amendments to the Constitution with other jurisdictions where there has been no such military interventions and 4 different constitutions, are not comparing apples with apples.
These people are intellectually dishonest.
Therefore, it is critical that we have a high threshold for the amendment of our Constitution to give us stability which will allow governance focus to be on providing socio-economic rights and implementation of those rights, improving infrastructure and ensuring through development that all Fijians reach their full potential.
Fact 5:
The only specifics in the amendment bill that was moved by Prime Minister Sitiveni Rabuka was that it seeks to reduce the number of MPs it will require in the future to approve a Bill to amend the Constitution, and more dangerously to take away completely, the fundamental right of Fijians to have a say in the amendment of our Constitution.
This is wrong on two fronts. Firstly, the amendment was saying that ordinary Fijians should not have a say in the amendment of the Constitution, that their opinion does not matter, and that they are not worthy enough to have an input in the amendment to the Constitution.
Secondly, by having a lower number of MPs required to move an amendment to the Constitution meant only that a handful of MPs could willy nilly change the Constitution as and when they felt like it.
To reiterate, the current 3/4 requirement would have been reduced to 2/3. In other words, from 41 to 36 MPs.
As we have seen in the almost two and a half years of this Parliament, MPs have been and can be lured to change their loyalties and even stated principles for material benefits and status.
Indeed, as revealed by some MPs including Inia Seruiratu, MPs were offered inducements, some would call it bribes, to vote with the government’s amendment proposal.
So, given this calibre of parliamentary representation, can we seriously, as proposed by Sitiveni Rabuka, expect that the right thing will be done by MPs, who will be solely responsible for the amendments to the constitution? Of course not.
Fact 6:
The 2013 Constitution was not drafted by a handful of people in some closed room.
The precursor to the 2013 Constitution was the National Council for Building a Better Fiji (NCBBF) which saw many organisations and individuals, faith-based organisations, civil society representatives participate in consultations regarding governance, politics and constitutional framework in Fiji.
Some of the key recommendations that came out of these discussions were the reduction of the term of government from 5 to 4 years - it used to be 5 years under the previous Constitutions.
This led to the People’s Charter.
The People’s Charter was taken to every single corner of Fiji, or every part of Fiji through various Government Ministries, the RFMF, and in collaboration with civil society.
Just alone with the People’s Charter there were 1256 recorded consultations only at village and settlement venues.
There were consultations at other venues and groupings also. Following the People’s Charter, the Constitutional Commission, chaired by Yash Ghai, also had a number of public consultations and the Yash Ghai Commission formulated a draft Constitution.
Following the Yash Ghai draft, a copy of which should be in the AG’s Chambers, based upon the work of the NCBBF, and the documents from the People’s Charter, the 2013 Constitution was drafted.
Once it was drafted, there were once again widespread public consultations on this draft.
There were thousands of submissions received, there were town hall type consultations, radio talkback shows, consultations in the rural and maritime areas of Fiji, in urban centers, with various civil society groups, business houses and private sector, individuals, including now Prime Minister Sitiveni Rabuka, who all provided their input.
Some of the key inputs were the reduction of the voting age from 21 to 18 to allow more young Fijians to have a say in choosing their government and having a say in constitutional amendments. There was also a strong sentiment to not allow for same sex marriage, which would have been allowed under the Yash Ghai draft.
There were strong views on the protection of iTaukei land ownership, access to marine resources or Qoliqoli and protection of other lands and leases, which were not definitively articulated or articulated at all in the Yash Ghai draft. All of these consultations took place, feedback was received and incorporated before the 2013 Constitution was promulgated by the then President Ratu Epeli Nailatikau with effect from 7 September 2013.
Therefore, to say that the 2013 Constitution has had no input from ordinary Fijians and was drafted by a handful of people in some closed room in secrecy is a complete lie.
And those propagandists who have tried over the years to perpetuate the false narrative that the Constitution was written by a handful of people should be minded that this narrative has not been argued before the courts, and is factually false.
Fact 7:
Leading up to the tabling of the amendment Bill, the so-called consultations by the AG’s Office and PM’s Office, were nothing but misleading.
At no stage in those supposed consultations, which were only through selected groups, did they ever talk about removing the referendum requirement.
So, in summary, the amendment was all about removing the so-called hurdle by removing the 75% amendment in Parliament and the public referendum. This would have then meant that Parliament would have been given a carte blanche authority to remove from, replace with and add whatever it liked to the Constitution, without going back to the Fijian population.
This approach is frankly treating ordinary voter Fijians with disdain. Taking away their right to have a say in the governance structures that actually govern them, how they choose their government, what principles and values are dear to them and their ability to participate as equal citizens.
Fact 8:
To date, no one has said what specific aspects of the Constitution they wish to change except for 2.
Pio Tikoduaua has said he wants to amend Section 131 on the RFMF’s role.
The fact of the matter is the RFMF has not done anything extraordinary since the Constitution came into effect.
It has simply seen the section as an extension of its current role, and the RFMF has not interfered in the parliamentary democratic process.
So, what is there to amend in this regard? The second one is Graham Leung, who, in a rather convoluted Press Release, listed 5 areas.
Some are extremely trite and it appears that he simply pulled out a few sections to make it look like there was actual substance in the now defeated Bill.
For Graham Leung to be taking umbrage with section 6(5) of the Constitution is rather amusing and can be explained another time, but I suggest that he get some research done and read the section slowly to understand its meaning and effect.
He says the 5% threshold under section 53(3) is too high and therefore undemocratic.
He forgets or does not know that under the previous constitutions a party like NFP, even though it won approximately 20% of the votes, won only 1 seat.
Wasn’t that undemocratic? Conversely, a party like NFP under the 2013 Constitution won just a little over 5 % of the votes cast in the 2014 and 2018 elections and had 3 seats in Parliament. Now isn’t that representative democracy?
Lastly, Graham Leung, the Attorney General has said the AG has too many powers under the Constitution.
Again, factually incorrect. Any law student can tell you that just because the AG is mentioned a number of times in the Constitution does not mean that he has immense powers.
In fact, bulk of the times that the AG is mentioned is in respect of consultations.
A consultative role does not mean an authoritative or authorisation role. It does not even mean approval.
Those who are interested in governance arrangements would know that in many countries such consultations do take place by way of convention and precedent, but they are not codified or transparently put in the constitution.
We in Fiji have constitutionalised it. And the constitutionalisation of such processes does not mean that whoever is the AG therefore has wide reaching powers.
What it does mean is that there is transparency.
From experience during our term in government when it came to consultations with the Attorney General, it did not mean the approval of the AG.
Fact 9:
Today 91% of all the land in Fiji is iTaukei owned under communal ownership.
The 2013 Constitution provides unprecedented protection of iTaukei land ownership. Under the 1970, 1990 and 1997 (which is an amendment to the 1990 Constitution) iTaukei land could be converted to freehold land.
In fact, there are recent well-known instances where iTaukei land under the 1990 and 1997 Constitutions were converted to freehold land when Sitiveni Rabuka and Laisenia Qarase were Prime Ministers.
The 2013 Constitution strictly disallows the conversion of iTaukei land to freehold.
The 2013 Constitution goes further. If iTaukei land is assigned for a particular use for public purposes, and once that land is no longer used for that particular public purpose, then that land must be returned to the land-owning unit.
This provision did not exist in the 1997, 1990 and 1970 Constitutions.
The 2013 Constitution also states that iTaukei landowners must receive through any tenancy of their land, fair and equitable return.
No other Constitution provided such specific protections and measures.
The 2013 Constitution goes further to say that landowners must also get a fair share of royalties for extraction of minerals.
Under Prime Minister Bainimarama, a specific law was passed by Parliament to give practical implementation to this specific Constitutional provision.
The 2013 Constitution also in its preamble recognises the indigenous people or the iTaukei, their ownership of iTaukei lands, their unique culture, customs, traditions and language. It also gives the same recognition to the indigenous people of Rotuma.
Section 26( also makes an exception to the equality provisions which means that ownership of iTaukei lands and access to marine resources, or the bestowing of chiefly title or rank cannot be seen as discrimination. This provision is also applicable to indigenous Rotumans.
These provisions have been specifically highlighted as some politicians have said that our Fijian Constitution needs to be amended because it does not protect indigenous ownership of land and rights.
As seen from our Constitution, these claims by these politicians and paranoid ethno-nationalists, are entirely false. On the contrary, our Constitution gives more protection and rights than ever before. So, anyone who makes such a claim is maliciously trying to mislead the iTaukei and the wider community and our development partners.
Fact 10:
The rights and protections provided for the protection of communal ownership of iTaukei land in perpetuity and the volume of land under indigenous ownership, is the envy of many nations where the indigenous populations are seeking such recognition and legal safeguards.
Look at what happened recently in Australi, where the bulk of Australians through its two-tier approval referendum system, rejected an alteration to the Australian constitution for the recognition of an indigenous body.
In the same vein, approximately only 6% of the land in New Zealand is native title or Maori land.
Perhaps this is why some of the diplomats and others from those and similar colonial countries occupying various positions in Fiji, think that they can make up for the injustices wrought in those countries, over here in Fiji, by accepting the false narrative perpetuated by some in Fiji.
In their misplaced earnestness they ignore the fact that there is no contemporary injustice and marginalisation in that regard here in Fiji.
Fact 11:
The 2013 Constitution provides a wide range of socio-economic rights to all Fijians including right to education, right to economic participation, right to work and a just minimum wage, right to reasonable access to transportation, right to housing and sanitation, right to adequate food and water, right to social security schemes, right to health, and freedom from arbitrary evictions.
There are also environmental rights, rights of children and rights of persons with disabilities.
The 2013 Constitution for the first time gives one person one vote one value. In other words, unlike the 1997 constitution, where people were forced to vote along ethnic and provincial basis, it is done away with.
The communal or ethnic voting electoral system unfairly ensured that some voters in certain provinces had more value attached to their votes than others.
It differentiated amongst the provinces. It also unfairly discriminated against the iTaukei living in urban areas. The 2013 Constitution does not do that.
The electoral system under our 2013 constitution does not do that. Every Fijian, no matter, what belief they have, what province they live in, their ethnicity, what language they speak, what gender they are, what age they are (as long as they are 18 and over), how rich or poor they are, have their vote carrying the same value as everyone else’s.
That is true democracy.
That is a level playing field in choosing who you want to represent you in a constitutional parliamentary democracy, and in which the ordinary citizens have a say.
Fact 12:
Some politicians have tried to compare our 2013 Constitution with the 1997 one, saying that because the 1997 Constitution had the Reeves Commission input, and in which held public consultations input it therefore had legitimacy.
As highlighted above, the NCBBF, the People’s charter, the Yash Ghai commission and the consultations on the 2013 Constitution combined had far more engagements than the Reeves commission.
Secondly, the key recommendations of the Reeves commission were not even adopted by the then parliament and therefore weren’t included in the 1997 constitution.
Many of these politicians and their fellow detractors are not aware, or have conveniently forgotten that once the Reeves Commission gave its recommendations, those recommendations were put to a joint parliamentary select committee (JPSC).
Through political haggling the JPSC decided which of the Reeves Commission recommendations would be implemented, and in the process negated what was in the public submissions and which were in the recommendations of the Reeves Commission.
A number of key recommendations of the Reeves Commission were rejected because of political haggling.
While this is not the place to go into the dynamics of the JPSC, the Reeves Commission recommendation to have more open seats as opposed to communal seats was rejected.
For those who may not be aware, communal seats mean seats reserved only for a particular ethnic group and only those of that same ethnic group can vote in those seats.
The Reeves Commission recommendation to have an elected senate was rejected. As a result, the bias against certain provinces and urban iTaukei, a feature of the 1990 Constitution, continued and was perpetuated in the 1997 Constitution.
The recommendation that all Fijians, irrespective of ethnicity, should vote to select senators, was also rejected.
So those who promote the idea that somehow or the other the 1997 constitution was sanctimonious because it adopted the Reeves Commission recommendation that came about after public consultation, are deliberately lying and/or regurgitating without knowledge the narrative of those who have other deeper sinister political designs.
Question
Given all of these facts, why is this Government, after nearly two and a half years in government, all of a sudden, trying to rush through amendments to our Constitution and that too without wanting to follow the constitutional requirements?
Why all of a sudden is Biman Prasad saying that there will be ‘diabolical disaster’ if our Constitution is not amended, but does not say what that disaster will be, nor does he explain why there has not been any ‘diabolical disaster’ even though the Constitution has been in place since 2013? He cannot because there will be no disaster and there has been no disaster. The only disasters he can talk about with authority are his economic policies that have wrought havoc in the fundamentals of our economic structure.
And why is Manoa Kamkamica saying that we need to change the Constitution but does not say what sections need changing? In his excitement after the bill for the amendment collapsed at the second reading, he said that ‘they may have won the war yesterday, but the battle has just begun’. Someone needs to tell Manoa that if the war is won, then there is no battle to fight.
Why is Graham Leung, knowing full well what the constitutional requirements are, is going to or thinking of advising the Prime Minister Sitiveni Rabuka to go the Courts when section 90(5) of the Constitution clearly states that Cabinet may seek an opinion from the Supreme Court on any matter concerning the interpretation or application of the Constitution? The section is very clear in its application and there is no need for an interpretation as it is not complex.
The provision of section 90(5) does not mean that because you weren’t able to pass the amendment bill on the second reading in Parliament, you go running to cabinet and refer a matter that does not meet the criteria for a reference to the Supreme Court. It also doesn’t mean that because you think the threshold set in the constitution is too high, and even though you have not even tried to get an approval from the voters, you seek to declare it to be unconstitutional.
Maybe the real reason is that they know the amendments sought will be rejected by the Fijian voters.
Why is there so much desperation that they are contemplating to circumvent the supreme law of the land and add even more uncertainty and drama in the country?
One may come to the conclusion that given the government has failed to address or even have created through their haphazard policies issues such as, increase in cost of food and services, slackness in government services, general increase in the cost of living, an economy that is slowing down and is projected to slow even further, decreasing number of job vacancies despite thousands of Fijians leaving Fiji which is a problem in itself - they know that they cannot win the next election. So, perhaps they think that the only way that they can maintain political power is to change the electoral system.
Perhaps an electoral system that will be skewed and remove the current extremely democratic system where all votes are of the same value, and we all vote as Fijians. Perhaps this is the real reason and that is why they are not revealing what they want to actually change in our Constitution. This has been alluded to by many Government MPs who spoke in Parliament during the debate on the amendment Bill on having single-member constituencies.
We in Fiji currently have a single constituency, which is the entire country. This is exactly the system that Israel and some other countries have. What is wrong with Israel's single constituency with proportional representation, like ours? Plus our history has shown that single member constituencies can be very parochial, and MPs do not think nationally. It of course becomes worse when these constituencies are based on enforced ethnic voting. On the other hand, treating the entire country as one constituency means an MP is not limited to a single area, but has to be concerned about and responsible for, and to all Fijians. It would appear that those who want to have single member constituencies based on ethnicity want to rely on a vote bank and again do less work but get paid more.
So, the amendment is all for political expediency, political survival. Not for some great noble principle or value nor for the improvement of governance. With the 10 that were under Inia Seruiratu and have gone across to the government side, they will have the proposed two thirds. Given the caliber and propensity of a number of the current MPs, who are not exactly principled, we could have constitutional changes on a regular basis, and as and when these MPs politically fancy.
Conclusion
And here we are. The economy is slowing down. The so-called pipeline projects are still in the pipe. A large proportion of Fijians have left Fiji, either on work permits, short term permits or with a view to stay overseas permanently.
Consumption is down.
There is a high unemployment rate, which is higher amongst our youth.
We have an exponential rise in hard drug usage and trafficking. Crime rate has gone up, many unreported but appear on social media.
Biman imposed VAT when the general population could not absorb the increased VAT. He increased VAT at a time when there was global inflation which put further burden on ordinary Fijians and business houses.
He at the same time increased corporate tax and increased a number of tariffs, making food, goods and services even more expensive. Charging of school levies/fees commenced. Certain subsidies were stopped or diminished significantly.
There have been no new major public infrastructure projects. There has been a political witch-hunt of some from the previous government and those seen to be associated with them.
All of this has taken away the robustness from the economy, undermined public confidence and created uncertainty.
It has made business houses conservative and the black economy is growing. Recently a couple of garment manufacturers have shut down their Fijian operations and relocated to other countries. Rather than stimulate confidence and investment, government policies or lack of policies, have undermined it. Then we have had a series of dramas relating to independent constitutional offices, including FICAC, DPP, Fijian Elections Office.
And amidst all of this, the MPs decide to give themselves a pay rise with several perks, such as but not limited to, duty free cars and health care. And these are the very people this amendment to our Constitution sought to give the sole power to, to amend the Constitution as and when they felt like.
The latest economic reports show that the world economy is set to contract by 3-5%. Even China has recognized the downturn in the economy, domestically and internationally. They have decided to stimulate their local economy through new government intervention. Trump’s bull in a China shop approach (no pun intended), with looming trade wars and maverick approach to geo-political dynamics and relationships also does not help, and the uncertainty that comes with it. The price of gold has significantly increased, indicating a lack of confidence in the currencies.
All of this will have an impact on us in Fiji. We may not feel it right now, even though many in the tourism sector are already feeling the effects. We will feel the full brunt very soon. And the question is, what are the Government’s plans and what contingencies are in place? How will the Government protect ordinary Fijians, our poor and the vulnerable and those who may be out of a job because of a further decline in the tourism sector, or in the demand for our exports, or an increase in price in our imports?
Will amending the Constitution for the political gain for some politicians give relief to everyday Fijians who already have all the constitutional safeguards protecting their rights, including indigenous rights? Will the Ministers and government MPs and whole of Parliament divert their energy and resources on these unnecessary shenanigans in Parliament and proposed amendments to the constitution benefit ordinary Fijians and help our country? Will it bridge the gap between the rich and poor? Will it fix up the deteriorating conditions of our roads? Will it reduce the cost of living, food and basic everyday household items? Will it improve deteriorating government services? Will it improve business and investor confidence?
The answer is, as some would say, a big fat No.
If Prime Minister Sitiveni Rabuka is concerned about our economy and the welfare of ordinary Fijians, then he must direct all his own, that of his ministers and the whole of government’s energy, effort and resources to addressing the issues faced by all Fijians, our businesses and investors.
If he can do that and not listen to the political opportunists and extremists around him, then he will gain the political ascendency that he seeks. It won’t be achieved if he continues down the path that he is currently on.
We have sent questions to Attorney General Graham Leung and Minister Manoa Kamikamica.
