Professor Yash Ghai - in this exclusive interview with our Pacific Correspondent, Sean Dorney - says the final constitution adopted by Fiji is terrible and the way it was adopted was a betrayal of the people.
Presenter: Sean Dorney
Speaker: Professor Yash Ghai
DORNEY: Although it ended rather badly you must have been fairly pleased with the public reaction in Fiji to the work of your Constitutional Commission?
GHAI: Yes indeed. We were able to engage a very large proportion of the population in the process which meant basically they made presentations to us. But they also made an attempt to study the background to the process and the process itself. And we got a wide variety of views from the people which we tried as best as we could to reflect in the Draft Constitution we prepared.
DORNEY: How much of the Draft Constitution do you think actually made it into the final product, which is now being promulgated?
GHAI: Well, there's a fair bit of it, you know, even the exact language. But it is cast in a broad framework where the true significance of what they have borrowed is not captured. For example, they have taken a fair bit from our Bill of Rights. But they have an over-arching sort of provision whereby it is very easy for Parliament to disregard a human right. Whereas in our case there is an article dealing with limitation and it makes it very hard for Parliament or the Government to derogate from a Right. They don't have that protection.
DORNEY: One of the criticisms I've heard is there's a great concentration of power in the hands of the Prime Minister and the Attorney-General?
GHAI: In relation to the judiciary, the PM is sort of supreme we might say. On the judiciary, on the public Judicial Service Commission, on several other provisions, the Prime Minister has only to consult the Attorney-General. And then they can make a large number of decisions affecting a large number of people. And if this pair continue into the new, post new Constitution era, then nothing is going to change.
DORNEY: How do you regard the provisions for the promised election in 2014?
GHAI: One of the, what they called, non negotiable principles that must be reflected in the constitution talks of free and fair elections using the principle of proportionality - different from first past the post. Well, they have done that. They have completely ignored the provisions that the Commission made and we gave a lot of thought to it. And now they have made the entire country one constituency. And they have also said that for a party to be, for its votes to be taken into account, they must have secured five percent of the vote. Well, that's a very high percentage in a country which is small and there are minorities. So, that, you know, I mean this may have the effect, which would be not a bad thing, of encouraging the larger parties. But it does mean minorities are not in a position to negotiate.
DORNEY: One of the things you advised was that there should be a Constituent Assembly to have a look at the Draft Constitution, but Commodore Bainimarama did away with that suggestion?
GHAI: Yes he did away with that. It was in the Decree which dealt with the process and the, of making it, approving it, the voting system, eligibility to be on the Constituent Assembly and so on. And he just disregarded it. He said, 'No! I'm not going to have this body!' And that, I think, was a great betrayal of the people because when the process started it was, it was understood, it was stated in the Decree, that there would be a Constituent Assembly which would consider our Draft and make the final decisions. Well, now, the two of them have made the final decisions. This is no way to make a Constitution pretending to be a democratic, participatory process.
DORNEY: Your Constitution provided some immunity provisions, but this one goes so much further?
GHAI: Oh, yes. It goes much further in two or three respects. One, that in the breadth of immunities given, you can say okay for what we might call treason for overthrowing a Constitution, yeah, okay, no military will leave power without such a guarantee. But it covers all kinds of ordinary events which are not even, which are to do with personal relationships, civil contract kind of thing, are protected. A whole range. It's astounding. And, secondly, this immunity will apply not only to acts which are performed up to the time of the Constitution being enacted but will continue into the future until at least after the next elections. So they have a carte blanche. Our immunity, the immunity we gave, requires a prior oath by the people who seek its benefit to apologise for what they did, to say they would never, ever again do things like this, only then does the immunity come.
DORNEY: So, what do you think of Commodore Bainimarama's claim that this is a great democratic Constitution?
GHAI: Um, well, of course he's wrong. (Laughs) And I think most dictators have a great capacity for self deception and he may be suffering from that or he's very astute.
DORNEY: So you don't think it's a great, it's a great Constitution?
GHAI: Well, I'm afraid not. They deserve much better and I hope they will get that in due course.