13 Mar 2012

Yash Ghai speaks on Fiji constitution plan

2:24 pm on 13 March 2012

The newly-appointed chairperson of Fiji's Constitution Commission Professor Yash Ghai says the Fiji regime should review all laws that restrict freedoms in Fiji to ensure frank discussions around the constitution.

The veteran constitution-maker says this should happen before the process begins.

Yash Ghai is currently drafting constitutions for Libya and Somalia from his base in Kenya.

Sally Round reports.


Professor Ghai has been appointed by the regime to oversee consultations and drafting of a new document to be signed off by the end of February next year.

The former UN Rapporteur on Human Rights in Cambodia and veteran of 15 constitutions says Commodore Frank Bainimarama's plan appears thought through, responsive to various concerns and provides a good balance of input from ordinary people and experts.

But he says Fiji's laws should be restored to a state compatible with the guarantees of the Bill of Rights under Fiji's 1997 constitution.

He also says the role of the military must be addressed.

"A s the process begins it could be very important to have mechanisms for expression of different views and attempt to develop some consensus. I think that can only be done if every group feels free to express its views."

Yash Ghai's appointment has been generally welcomed.

But some regime critics doubt his independence, pointing to his involvement with a key regime member Aiyaz Sayed-Khaiyum in the interim Attorney-General's student days.

Professor Ghai says he's taught thousands over 50 years and refutes he's been compromised.

I have been working in Kenya. I'm a Kenyan. The Attorney-General and the Chief Justice until recently were both my former students and I was constantly criticising them in public for their lack of integrity, corruption so just because a person has been a student, it doesn't mean that I lose my sense of fairness and transparency and the other values that I have lived all my life by.

Professor Ghai takes the road of pragmatism in reply to critics who say the whole process towards a new constitution is illegal after the regime's dumping of Fiji's 1997 constitution.

To say that that constitution is in force and we don't need a new constitution is to turn a blind eye to realities. We have a situation where there has been military rule for a while and the only way it seemed to me to return to a democratic system is to engage the whole country in a process of dialogue, consultations, finding some consensus. There is no guarantee that if this process weren't to start that the old constitution would somehow in a magical moment spring to life.

Yash Ghai is confident the process will be open and transparent and that the regime will honour its commitments.

But whether he stays the course in Fiji will perhaps be the ultimate test of a process some have labelled merely a charade.

In 2004 he stepped down as head of Kenya's Constitution Review Commission, frustrated at delays in enacting that country's constitution.