Comments on the Government’s draft Fiji Constitution 2013 in response to Government’s request for feedback

By Dr Shaista Shameem

My few short comments on the Government’s draft 2013 Constitution are as follows:

1. General

The main principles of constitutional governance promoted by the Government in its public statements are:

(i) elimination of institutionalised racial discrimination; 

(ii) elimination of corruption and bad governance; and 

(iii) protection of all constitutional rights, including economic, environmental and social rights.

2. Whether the draft Constitution 2013 is consistent with the Government’s expressed principles of constitutional governance and with international law. 

(i) Elimination of institutionalised racial discrimination

 The draft Constitution 2013 provides equal rights for all irrespective of race or ethnicity. 

Problem:

The draft does not accord with important 2012 recommendations of the United Nations Committee on the Elimination of All Forms of Discrimination which Fiji is obliged to follow as a State Party to the International Convention on the Elimination of All Forms of Discrimination. 

The CERD Committee recommended to the Fiji Government as follows:

(a) Disaggregated data to be made available on the socio-economic situation of Fiji’s different ethnic groups to show which groups suffer socio-economic disadvantage

(b) Fiji to impose special measures (affirmative action) to improve the participation of minority groups in public administration and politics since, currently, minority groups are disadvantaged in these areas. Any special measures to be based on disaggregated data which should be publicly available.

(c)  Fiji to enact specific legislation against racial discrimination- especially law    which criminalises racial motives as an aggravating factor in criminal activity.

(d) Fiji to secure the free, prior and informed consent and consultation of the indigenous peoples regarding their permanent rights as a group.

(e) In 2013 Fiji to report back to the Committee on (i) minority participation in public and political life and its affirmative action plans to restore balance in these areas; (ii) disaggregated data on protection of economic, social and cultural rights of minority groups; and (iii) rights of indigenous peoples.

My Recommendations on (i): 

(i) that the Fiji Government ensure that the draft 2013 Constitution is consistent with the 2012 recommendations of the CERD Committee so as to eradicate institutionalised racial discrimination in Fiji..

(ii) that the Fiji Government declare, in good faith and in adherence to its own theory of constitutional governance, that individuals and groups in Fiji can petition the CERD Committee through the Article 14 procedure of the Convention on the Elimination of All Forms of Racial Discrimination: 

Art. 14 CERD:  A State Party may at any time declare that it recognises the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State party of any of the rights set forth in this Convention.

(ii) Elimination of Corruption and Bad Governance

The draft 2013 Constitution contains the section 141 provision on accountability and transparency of all public officers in the declaration of their assets, liabilities and financial interests.

Whistleblowers will be protected by law.

Problems:

(i) There is a clash between section 141 wide-ranging right of the public to personal information of public officers and the right to personal privacy protected by section 24, as well as the right to security (especially security of family members including children) provided by section 130 (2) of the Constitution.

 (ii) The removal of the Office of Ombudsman from the draft 2013 Constitution means that the free service previously available for people alleging mal-administration or misconduct by public officers has been eliminated.

My Recommendations on (ii): 

(i) Section 141 should contain limitations on the type and extent of public access to personal information

(ii) The Ombudsman’s Office as a free (constitutional) public service for investigation of maladministration should be retained in the Constitution (as per the People’s Charter) despite the new section 16 Executive and Administrative Justice which can only be enforced by the courts, thus making it expensive and cumbersome for the ordinary people to access.  

(iii) Constitutional protection of all human rights, including economic, environmental and social rights

Additional rights have been formally included in the Government’s draft Constitution, incorporating elements from the Social Justice (Compact) provisions of the 1997 Constitution. 

Problems: 

(i) The Bill of Rights provisions do not include an important clause to curb absolute state authority – missing is the phrase ..’as long as it (State limitation of rights) is reasonable and justifiable in a free and democratic society’.  This phrase was included in all the relevant provisions of the 1997 Constitution and is a feature of international human rights law. 

The phrase means that it is permitted for a State to limit some (not all) fundamental rights as long as those limitations ‘would be reasonable and justifiable in a free and democratic society’.

This is the most serious flaw in the Government’s draft Constitution and affects the whole Constitution because it allows any government to impose limits on people’s rights even if those limits would not be allowed in a free and democratic society. The lack of justification of state limitations of rights to the courts is not cured by Sections 3 and 7 interpretation sections of the 2013 draft Constitution. 

(ii)  The definition of human rights is not included in the interpretation section of the Constitution

My Recommendation on (iii) 

(i) The phrase ‘…as long as the limitation is reasonable and justifiable in a free and democratic society’ should be included in each relevant rights limitation in the Constitution. Without that inclusion, the Government’s draft Constitution 2013 is not fully human rights compliant, contrary to the Government’s statements to the people that their rights are protected by its draft. 

(ii) In view of the double-entrenchment of the Constitution – because any amendment can only be made by both Parliament and a public referendum with two thirds majority of the registered voters voting for it- it is very important that this phrase is included in the Constitution.  

 (iii) The definition of human rights should be included in the interpretation section of the Constitution. 

3. Conclusion

Despite its good points, the Government’s draft constitution 2013 does not represent a ‘social contract’, based on equality between the people of Fiji and the State, which is the fundamental principle of constitutional law.

 In important respects it does not follow even its own expressed principles of constitutional governance.

 It is an authoritarian constitution where the State’s authority is favoured above people’s rights, as evidenced by the Bill of Rights chapter, despite additional rights being provided. 

It also ignores the CERD Committee’s 2012 recommendations on minority group protection.

A proper and informed discussion, rather than the rushed roadshow currently being performed by government, would have allowed the people of Fiji to have a meaningful input into what would be the supreme law directing all their actions in future in their own country. 

With its draft 2013 Constitution, the Government seems to have lost a wonderful opportunity to write law in the public interest. 

TWO IMPORTANT RECOMMENDATIONS: (i) The Government should comply with the recommendations of the CERD Committee; and (ii) the people of Fiji can insist that the phrase ‘…as long as any limitation (of rights) is reasonable and justifiable in a free and democratic society’ be added to each relevant provision of the Bill of Rights chapter. The inclusion of this phrase will cure many of the shortcomings of the Government’s draft Constitution 2013.

April 2013

Click on the following link for an insight of what is to come:
http://www.youtube.com/embed/IfJemqkby_0?rel=0

As work begins on analyzing the public submissions on the draft constitution, Attorney General Aiyaz Sayed-Khaiyum said they understand that some members of the public want further elaborations to certain sections.

Sayed-Khaiyum said for example, although itaukei land is protected with all other types of property and culture in the Bill of Rights, some people have said that they want a specific section on itaukei land.

Sayed-Khaiyum said that he cannot say which specific amendments will be made because the Office is in the process of looking at all the submissions.

It is common knowledge that this man is running Fiji, HE makes the rules that we all have to live by, HE plays the tune that everyone has to dance to…EVERYONE.. EVERYONE … just think about it for a few minutes Frank

Who will approve submissions? HE WILL, so do not expect any amendments HE does not like..

Acting Prime Minister and Attorney General Aiyaz Sayed-Khaiyum said people should stop creating issues that do not exist in relation to iTaukei land when it comes to the land bank system.

While responding to questions raised by former Permanent Secretary for Works, Anasa Vocea in the draft constitution session in Nasinu, Sayed-Khaiyum said the government is not taking over i-Taukei land under the land bank system.

Vocea said he wants to know why the Prime Minister is making the decision on this

It is all a matter of TRUST and for some strange reason there seems to be very little of it.

Only general prayers allowed at goverment functions when Fiji becomes secular state.
When asked on how the government departments will handle prayers at functions when the constitution is adopted, Acting Prime Minister and Attorney General Aiyaz Sayed-Khaiyum said a prayer can be said that is acceptable to all.

Robbie Burns Selkirk Grace can now be used by all.

Scots:
Some hae meat and canna eat,
And some would eat that want it;
But we hae meat, and we can eat,
Sae let the Lord be thankit.

Fijian:
E so e tu vei ira na leweni manumanu qai sega ni rawa ni kania
E so e rawa ni kania, na ka era vinakata
Ia, e tu vei ira na leweni manumanu qai sega ni rawa ni kania
Me da vaka vinavinaka ga vua na Kalou.

Hindi:
कुछ hae मांस और भंग खाते हैं,
   और कुछ यह चाहते हैं कि खाना होगा;
लेकिन, हम मांस hae, और हम खा सकते हैं
   Sae प्रभु thankit हो.

Chinese:
一些肉HAE和美人蕉吃的，
  有些人会吃的希望;
不过，我们虽生的肉，我们可以吃，
  SAE让主thankit。

Arabic:

بعض اللحوم هاي والقنا أكل،
   وسوف تأكل بعض الذين يريدون ذلك؛
لكننا هاي اللحوم، ونحن يمكن أن تأكل،
   اسمحوا SAE الرب يكون thankit.

English:
Some have meat and cannot eat,
Some have none and want it,
We have meat and we can eat.
So let the Lord be thanked for it.

Concerns have been raised again in the Cuvu draft constitution session by a Fiji National Provident Fund pensioner why their pension rates have been cut as part of the FNPF reform.

The Cuvu resident asked Attorney General Aiyaz Sayed-Khaiyum why this is being done to the retired persons.

Sayed-Khaiyum said in the late 1980s and 1990s, experts recommended to review FNPF pension rates which was as high as 25 percent. 

However, nothing was done.

The Attorney General said the review of the pension rates was absolutely necessary.

He had earlier stressed that the FNPF decree cannot be challenged in court however the next parliament can decide to amend or repeal the decree if they do not agree with the reform.

He said that decision will depend on the next parliament.

JUSTICE DELAYED IS JUSTICE DENIED.

Sayed-Khaiyum SHOULD BE REPLACED AS MINISTER FOR JUSTICE AND NEVER PERMITTED TO HOLD THE POSITION AGAIN

PENSIONERS SHOULD NOT VOTE FOR THIS MAN IN THE 2014 ELECTION, THEY SHOULD ALSO THINK TWICE BEFORE VOTING FOR ANY PARTY THAT SUPPORTS HIM

Minister do the children of Fiji a BIG FAVOUR, click on the following link and play Look & Learn for a few minutes

http://truththeory.com/2013/02/04/eight-reasons-why-water-fluoridation-has-failed-modern-civilization/

Fiji government must open up constitution process if it wants to achieve truly inclusive democracy, says Minority Rights Group International 

Click on the following link to see full report:

http://www.minorityrights.org/11850/reports/fiji-the-challenges-and-opportunities-of-diversity.html

Is it any wonder that many of the innocent and anguished pensioners, who are being so ruthlessly selected for a reduction in income by the Fiji National Provident Fund, no longer trust the Fund?  They have lost confidence and trust in the FNPF Board chair, Ajith Kodagoda, and his fellow trustees Tom Rickets, Sashi Singh, Taito Waqa and Tevita Kuruvakadua.

These five must bear the very heavy burden of responsibility for the injustice the FNPF is now imposing on many of its middle and working class members.

The FNPF representative who has attracted most of the anger and despair of the pensioners is chief executive Aisake Taito. 

Mr Taito, as the public face and voice of the FNPF, is a catastrophe. His performances at meetings with the FNPF victims were marked by obvious impatience, evasions and arrogance. He contemptuously dismissed or ignored difficult questions and had the hide to remind frightened pensioners that they should not be “personal” about the FNPF’s plans.

Personal?  For God’s sake, of course it’s personal when your very own pension fund, that had promised your pension rate was for life, is getting ready to shaft you.  The shafting process goes right to the core of an elderly person’s life. In their autumn years their retirement plans, founded on their FNPF irrevocable pensions, are thrown into upheaval.

They face an immediate drop in their standard of living; it is harder for them to put food on the table, pay the bills, meet their medical expenses and their family responsibilities.  Those who have obligations to banks and other financial institutions based on their fixed and legally binding lifetime pensions, have been betrayed in a most cruel way.

When a despairing casualty told Mr Taito that he might now lose his home and that the Fund was “ruining our lives” the FNPF CEO appeared unmoved and unimpressed.  He showed not a shred of compassion. The complainant was merely told not to make the issue personal. Those in the audience heard this with disbelief. What sort of man was this?
 

When Mr Taito indicated in a media interview that the FNPF is enforcing its pension cuts from a position of strength, he completed the transformation of the Fund into a callous and pitiless bully.

To the hapless victims the message is clear: ‘We are strong, you are weak. So we will do what we like because we can.’

This FNPF strength Mr Taito refers to must also mean that the fund is quite capable of honouring its contracts with its members if it so wishes.

But it does not wish to. The FNPF was always going to slash the payments of those it had in its sights. Put another way it was ready and willing to default on its obligations. For make no mistake, what we are witnessing here is a default. The FNPF is brazenly failing to meet a financial obligation. No shame, no regrets and hang the consequences.

It has obligations to the pensioners who entered into irrevocable contracts with it. Those contracts could not be changed.  Even the FNPF has said this. In a statement earlier this year it emphasised that pensions were paid out monthly for as long as a member lived.

It is instructive and enlightening that, when pension rates were changed previously, current contracts were honoured.

Messrs Kodagoda, Rickets, Singh, Waqa and Kuruvakadua should reflect deeply on this. So should Mr Taito. They should not just reflect. They should examine their consciences.

Mr James Raman, a reputable citizen and former FNPF trustee, states emphatically that during his time the Board made sure that whatever decisions were taken were in compliance with trustee obligations and in accordance with the laws.

He adds: “Furthermore, the question of annuity paid to existing pensioners did not arise as it was a non-issue since pensions were paid under a legally binding contract entered (into) between the FNPF and the pensioner. To do otherwise would have been illegal. The present board should take note of this.”

Messrs Kodagoda, Rickets, Singh, Waqa, Kuruvakadua and Taito have gone into a state of deep and deadly denial on this issue of contracts. It is deadly because of the harm it is doing to their pensioners.

Mr Taito, meanwhile, is asserting that the FNPF is acting within the law because the Solicitor General says so! The CEO appears to be refuting the existence of contracts.

But he has been unable to explain why Shauna Tomkins and Stephen Mason of the Promontory Financial Group, consultants to the fund, acknowledged the FNPF did have contracts with its pensioners. Mr Mason in particular should know about this. He was a special counsel with a major Australian law firm, a member of the Australian Law Reform Commission, and had worked as a parliamentary counsel.

In a report, Promontory makes at least five references to contracts FNPF has with pensioners. It talks of contract law and contracted rate – meaning the rate at which a pension is contracted. Promontory said there would be difficulty under contract law in adjusting current pensions and it assumed they would not be changed. It says sufficient funds should be set aside to ensure future payments at the “contracted rate” were met. Promontory found little support for withdrawing existing pensions, “capping” them or resetting them.

So the FNPF board now has an unavoidable duty to explain why it tossed aside this expert advice from its own consultants.

The answer must surely be that it was dead set on trashing its pensioner contracts come what may. But we need to know why it was so fixated on doing this? From where did this obsession come?

The FNPF has now decided on its unjust and cruel course of action.

 But many questions and issues remain. They will not go away now, or in the future.  They will haunt the Fund and the current trustees.

 If the FNPF is so certain that it does not have contractual obligations, why is it afraid to confront that question in court?  Why is it a party to an iniquitous decree that robs its own members of a fundamental legal right?   When Mr Taito speaks of acting from a position of strength, is he referring to the savage force of the decree?

Are the FNPF trustees prepared to go down in history as the perpetrators of the Great Contract Smashing? Are they ready to take responsibility for making Fiji into a land of broken contracts?

They know very well that observance of the law of contracts is vital for creating and maintaining commercial, investment and community confidence. The businessmen among them have an especially keen understanding of this.

 If the law governing contracts is broken, an economy is damaged and investors shy away. Without investment an economy cannot produce enough jobs.

If the FNPF – Fiji’s largest financial institution – has dumped contracts once, what is there to stop it doing so again?  Why should members ever trust the FNPF?

Messrs Kodagoda, Rickets, Singh, Waqa, Kuruvakadua and Taito: Hear this. Our struggle continues against all your power and strength. It will end when we have the justice to which we are entitled.

Decrees cannot be legally challenged according to the draft constitution

Decrees like the ones in relation to the Fiji National Provident Fund reform cannot be legally challenged according to the draft constitution however the decrees can be amended or removed altogether by the next parliament. 

Questions were raised by FNPF pensioner Rick Rickman in the draft constitution consultation session in Lautoka on why the FNPF decree cannot be challenged.

Rickman said he and other pensioners entered into a legal contract and their pension has been cut under the reform.  

Attorney General Aiyaz Sayed-Khaiyum said while the decrees can be reviewed or changed by the next parliament, people should understand that the FNPF reforms were necessary.

Sayed-Khaiyum said FNPF is not in existence to only pay pensions for the current pensioners but it is a long term fund.

He did not say how or at what rate of interest the government is repaying the almost 2.9 BILLION dollars it owes the pension fund.