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The Bainimarama/Khaiyum Constitution (BKC) is the final stage of a “successful” coup.

The Bainimarama/Khaiyum Constitution (ADACIP)

Professor Wadan Narsey

22 March 2012

 

The Bainimarama/Khaiyum Constitution (BKC) is the final stage of a  “successful” coup.

 

If elections are held in 2014 and an elected Government comes into place, the international community may be relieved to see  a cosmetic end to the most painful chapter in Fiji’s modern history.

 

But we need to remember, the Bainimarama Regime has never abided by

 

* any Constitution or any Oath of Office that any of them have ever taken,

* any promise or commitment made to Fiji or the international community, or

* any ruling by the judiciary which goes against them.

 

In 2006, Bainimarama and the RFMF, removed the constitutionally elected prime minister and made himself Prime Minister.

 

He promised elections by 2009 but broke that promise and has now ruled for more than six years.

 

The Regime’s Charter, allegedly approved by three quarters of Fiji’s adults, stated the 1997 Constitution would be supreme, but when the Appeal Court judgment went against them in 2009, Bainimarama abrogated the 1997 Constitution.

 

In 2011, the Regime appointed its own Ghai Constitution Commission (stacked with Regime supporters) to consult widely and write a Constitution which abided by all the Regime’s non-negotiable principles (which they did) AND which would be vetted by the Constituent Assembly AND the Chief Justice’s Tribunal.

 

But with Ghai Draft not completely to the Regime’s liking, both the Commission and the Draft Constitution, were flippantly trashed.

 

I wrote then (http://narseyonfiji.wordpress.com/2013/01/14/trashing-the-ghai-constitution-the-positives-14-january-2013/

 

Over the next six months, meticulous comparisons between the Regime’s Constitution and the Ghai Draft Constitution- what exactly is changed, added and left out – will reveal more facts to Fiji and the world, about the Regime’s “real Roadmap”.

 

I also noted that Fiji people could

 

“watch with deep interest (and remember) who exactly are the “people’s representatives” who will turn up to rubber-stamp the Military Regime’s Constitution. There is a definitely a new ball game in town.”

 

Well, no need for Fiji people to tire their eyes any further: the Regime has moved the goal-posts again, and there won’t be any Constituent Assembly.

 

Why not?  Bainimarama alleges the political parties were fiddling their registrations (and the sun was shining).  Right.

Bainimarama has decreed: “You, the people of Fiji” will now be the Constituent Assembly.  Right.

 

So the people of Fiji can personally write or talk to the Regime (with their names, addresses, phone numbers etc.) and the Regime will take on board your comments.  Right.

 

Bainimarama promises “we will finalize the Constitution to have it ready for implementation no later than the 12th of April this year”.

 

So even the pliant President won’t be required to assent to the Constitution, but “We”?   Right.

 

There is a new ball game in town and the Baimarama/Khaiyum Team is winning.

 

As the purchase and arrival of the Airbus shows, it is incredibly easy for Regime spin doctors to get Fiji’s population people to sing and dance, cry with pride at being a Fijian and “owning” their own airplane (even if it is on mortgage, and the only difference is the new colors inside and outside the plane).

 

Out of sight and out of mind are Fiji’s

 

* lost billion dollars of income over the last six years

* increasing mountains of public debt

* creaking and leaking FNPF pension fund

* mounting unemployment

* falling real incomes (except for the military),

* increasing poverty

* record rates of suicides and attempted suicides, and

* unbelievably sordid violence against women, children and even babies.

 

Our people, no doubt orchestrated again by the Fiji Sun and Fiji Broadcasting Corporation, will soon sing and dance over the new Constitution, promising racial equality, with one man, one vote. Right.

 

The rest here, is merely for the record.

 

What’s different in the BKC?

 

The Ghai Draft Constitution did not grant immunity for abuse of human rights; it granted immunity only to those who took an oath renouncing their support of illegal regimes; and it allowed citizens to go to court with their grievances and for damages.

 

The BKC grants total and unconditional immunity from 2000 to the 2014 elections, with no exceptions, no legal challenges allowed, or recourse for damages for anyone injured by those granted immunity.

 

People are still not understanding that the immunity being granted is not from 2006, but from 2000 “under the Limitation of Liability for Prescribed Political Events Decree 2010” (section 153 (1)).

 

Gone is the Ghai requirement (to discourage future coups) that all members of the security forces (army, police and prisons) must be explicitly required to not obey unlawful orders from their superiors. So, without that provision, the security forces can continue to follow unlawful orders, with total impunity, as they have done for the past six years, and do more coups when they feel like it.  So look forward to ADACIP (no prizes for guessing the two meanings of this acronym).

 

Gone is the requirement that Regime Decrees must be modified in order to be consistent with the new constitution and its fundamental human rights, and that legal proceedings terminated by decree, must be “revived and may be proceeded with under this Constitution”. The Ghai Draft Constitution even listed those decrees that had to be changed.

 

No more. The BKC states that all decrees and promulgations will continue in force. No legal challenges will  be tolerated. No legal cases will be resuscitated (so forget the Burness pensioner case).

 

In the Brave New World of the BKC, no future Parliament will EVER be allowed to change any of the entrenched provisions such as the unconditional immunity and restriction of rights to go to court.  Right.

 

There is no longer any role for the Tribunal to be appointed by the Chief Justice to “approve” the BKC.

 

The Chief Justice can now say with a straight face (as he did a few days ago) that the judiciary must objectively and impartially apply the law as it is, and not be part of  the law-making process.  Right.  (we will all practice amnesia over the events of 2006 and the immunity provisions for the judiciary in the BKC).

 

The BKC not only imposes interesting limitations on, but grants interesting discretion, to the judiciary.

 

112(4) also states that “a judicial officer is protected from civil or criminal action for anything said or done, or omitted to be done, in the performance of a judicial function”.

 

The Attorney General, in addition to many other powers, is also granted powers to “intervene in proceedings before the High Court” (40(7)).

 

Also gone is the requirement that the Regime would have had to give way to a caretaker government six months before the 2014 elections. Right.

 

Other interesting differences

 

Those with the time and energy can go through the BKC and the Ghai Draft and see what’s been added and what’s been deleted.

 

That relating to the media may be read here, in Marc Edge’s commentary:

http://fijimediawars.blogspot.co.nz/

 

There is the usual great rhetoric on basic human rights such as

 

* freedom of expression, publication and media

* freedom of assembly

* freedom of association

* freedom of employment relations

* freedom of movement and residence

* freedom of religion (the Catholic Church in Fiji like to might read Section 22 (6))

 

BUT, for each of these rights, the BKC devotes even more space on the limitations of these rights.

 

With the elimination of the Upper House, there is a total lack of checks and balances to Parliament.

 

Once a Bill is passed, no one, not even the President has the right to dissent, or even ask for a reconsideration. The Bill will be “deemed to be assented to” within 7 days.

 

All public service officers will be “under contract”.

 

Civil servants must retire at 55, unlike the Chief Justice (who must retire at 75) or High Court judges (who must retire at the age of 70 but be eligible to be promoted) or Commissioners of Police and Corrections and the Commander of the RFMF  (for whom there is no retirement age).

 

Constitutional lawyers are going to have a field day.

 

Who is the BKC for?

 

The Oaths and Affirmations at the end of the BKC document states that Prime Ministers, Ministers, Parliamentarians, and judicial officers must all swear allegiance to the Constitution.

 

Except the Oath and Affirmation for the next President. An interesting faux pas?

 

With Commodore Bainimarama declaring that he will stand for elections as Prime Minister, who is in their plan for President?   Some might think that it will be Superman.

 

But a real international PR scoop and yet another “first” for the Regime and Fiji, might be an Indo-Fijian AND woman President?  No prizes for guessing who THAT might be.

 

Is the Constituent Assembly Dead?

 

The Regime refuses to call a Constituent Assembly.

 

But nothing stops the people of Fiji from calling their own People’s Constituent Assembly.

 

All the social, political, religious organizations and concerned individuals who want to, can have a two day meeting to discuss what is in the BKC; agree wherever they can on common concerns and positions.

 

They can publish their communique through an advertisement in the media and as an open letter to Commodore Bainimarama. They have nothing to fear: all this is allowed by the BKC.

 

Fiji people have so far meekly accepted being herded here and there, like sheep through the corrals of Animal Farm.

 

But they could announce, as in Merry Olde England: the Constituent Assembly is dead. Long live the People’s Constituent Assembly

58 thoughts on “The Bainimarama/Khaiyum Constitution (BKC) is the final stage of a “successful” coup.

  1. Here he goes – this Wadan Narsey chap and his twin Indo-Fijian hater Victor Lal can never see that what Bainimarama/Khaiyum are doing is giving us Indo-Fijians what belongs to us – a fair Constitution. Narsey-Lal are enemies of the Indo-Fijian people, so ignore this nutty Professor and his comments

  2. Vinaka Prof Wadan. You are absolutely correct. No taxpayer or voter is obligated to accept the BK (& dare we say N) draft as members of the ‘Constituent Assembly’.

  3. Victor Lal and Wadan Narsey are our poster boys in our fight against dictatorship in Fiji. Jai Fiji, put them on your billboards in Fiji instead of the murderous Frank Bainimarama’s face. Good on you, Professor Narsey – we always look forward to reading stuff from you and Victor. I am an Indo-Fijian, and against the coups – you two are saving us from the wrath of our -itaukei brothers, who realise that not all Indo-Fijians are with this crook regime.

  4. I have taken the liberty of reproducing this on the World Voices blog, together with the legal comment to which you have linked below. Please let me know if you would prefer a simple link from mine, but I think these worrying developments should be publicised widely.

  5. this definitly looks like another coup by this rogue government. my heart cries for my Country. why is there no Opposition?

  6. http://www.fijileaks.com

    DAD’s PRIVATE MILITIA? Dictator Bainimarama’s gun-toting rogue son Meli forms security and training company as father declares he will stand in elections and WIN

    By VICTOR LAL

    HE is a monster of a son by all accounts. MELI BAINIMARAMA junior, the son of Fiji’s dictator Voreqe Bainimarama, shot to prominence when he appeared with his father’s treasonous troops at the residence of Laisenia Qarase to “capture” the democratically elected Prime Minister of Fiji in December 2006. Since that day, he has not looked back, indulging in wanton pleasure and profiteering on the ill-gotten gains of his father – the present illegal Prime Minister. Now, it has emerged that on 22 February 2013 he formed a Fiji chapter of Fijian Solutions International, a security and security training company. He is listed as director of the company, and operating out of 55 Siga Rd, Laucala Beach, Suva. And guess where he claims to be residing – yes – 70 Muanikau Rd, Ratu Sukuna Rd, which his father is occupying currently. The house is the former official residence of the sacked Chief Justice Daniel Fatiaki. According to highly placed military sources Meli Bainimarama, who is no longer a soldier, and his “security men” have unlimited access to army military training compounds and weapons from the RFMF armoury. The army sources claim that the company is a “front” for Meli and his men to take security charge of the future Prime Minister of Fiji after September 2014; i.e. Voreqe Bainimarama who will rig the elections to WIN and under his Draft Constitution the new Prime Minister will also be the Commander-in-Chief of the RFMF. Welcome to future Saddam Hussein and Sons type Fiji – where mob rule and violence might become the order of the Bainimarama clan.

  7. Losalini, there is no Opposition because selfish bastards like Felix Anthony and others, who can bring this Government down because they have international support, are too busy trying to form political party and enter Parliament. These suckers are dreaming – focking greedy bastards – ignore their bullshit press statements – its all aimed at their workers votes – they dont care for Fiji. If they took the lead, I am sure we in Fiji would follow but no this bastard Felix has been dyeing and growing his mustache because he is power hungry!

  8. Hey Jai, the professor is not against you, hes with you all the way.

    does he or Victor say that the indigenous people in this country do not exist under this consititution?
    do they say that the fijian and rotuman land ownership is not entrenched under this document?
    do they say that all indigenous structures do not exist under this document?
    do they say that the government can pass any law to transfer all indigenous lands to the government as State land without having to consult the indigenous people and on a simple majority vote?
    do they say that this is oppressive of the indigenous people because international human rights laws are being breached??

    so you see that is why the fijians do not trust the kaiindia to protect and preserve their land ownership. all the prof is concerned about is to be able to go back to parliament.
    He is just another old failed politican. the problem is he is now a hotshot lawyer giving wrong advice.
    the only proper and leagal way is through the 1997 Consitution. woulld he say that?? ofcourse not because the fijians will have political power under that constitution. he prefers this one man one vote crap because the kaiindia will win every time.
    the docs advice is wrong peoples…you dont conitune and keep encouraging this illegality…
    him and shyster are just full of crap, which is not simply because their advice is wrong factually and legally, but their advice is just 100% self interested ccrap.

  9. People of Fiji wake up NO ONE IS GONNA COME THERE AND HELP YOU GET RID OF BAINIMARA, Australia ,NZ, USA, UN or Tonga…….. Only YOU… Full Stop So WAKE kuna na liumuri na DUAVATA.

  10. Professor and Victor Lal keep writing.
    We all look forward for your articles and letters.
    Indians are only scapegoat.
    No coup is good.
    The country has gone back 50 years.
    The economic indicators determine the health of the country.
    The Fiji dollar has gone down , investment has fallen, export on decline, cost of living is all time high( ask ordinary people on the street), borrowings at all time high, etc etc
    Khayium does not feel it as he is getting $700,000 in salary forgot about other benefits. He was earning mere $75,000 when working for Colonial.
    People are not fools they know what the country is going through.

  11. It is laughable how these elitist Indians squeal. If they were real man they would come here to Fiji and take up a fight. But no, like the rest of you they produce many words from a safe distance. I really wished I could send my boys with the truncheons. But anyway, their words will be forgotten faster than they can say dictator. I will be elected PM and I will have a constitution that is the best in the world. McCully and Carr will come to Fiji, wash my smelly feet and apologise. This is the real world, not Lalawadanland.

  12. Forgot to mention that Wadan got at least one thing right: We will indeed have an info-fijian lady president: Aunty Nur!

  13. We are making effort to keep Victor Lal on the banned list, along with his buddy Russell Hunter, from entering Fiji before and after 2014 election. Wadan Narsey, we hope, will be added to the banned list of persons. Immunity only applies to Prime Minister Bainimarama and his treasonists – it will not be extended to his opponents. Oh, I forgot to mention Michael Fields. So will former NZ High Commissioner Michael Green whom my adviser and script writer Dr Shaista Shameem helped the Prime Minister to deport from Fiji.

  14. how come its only these kaiindia know it alls that are spreading their self interested self serving opinons.
    not one single one of them have said:::sorry our fijian indigenous brothers and sisters rights and institutions are being bastardised.??? uh? not one single one.
    goes to show these are just dishonest so called academic human rights crusaders like this no shame shyster and her sister.

  15. Yea, yea, Professor Croz. I have asked Sharon to give you another free ticket to Fiji, to counter the propaganda on Fijileaks (run by Victor Lal) and C4/5 to which both he and Wadan have been writing for years against our Peoples of Fiji Regime.

  16. Dear Shameem

    We are glad you are making noises again. I am re-reading your Report on the Deportation of newspaper publishers.

    INTELLIGENT RESISTANCE –
    Free. Fair. Fearless. Intelligentsiya is made up of Fiji Islanders who are libertarians in their own way and who cherish the free flow of news, ideas and information and will peacefully resist any attempts by the country’s military rulers to stifle free speech. intelligentsiya will also bear witness, report and discuss human rights abuses by the authorities.
    June 27, 2008

    FYI: Shaista Shameem’s report on Russell Hunter and Evan Hannah (sic)

    For those who know the Fiji scene, this report is seriously funny. Mike Field has already outlined the ways in which it is so, but two things are most prominent: The “evidentiary material” she uses as the basis for her report is illegal. No question. The emails were stolen as a result of hacking into the email systems of the institutions concerned (and the Freedom Bloggers already suspect who the culprit may be). Isn’t the hacking of emails a breach of privacy? Shameem doesn’t think the question is appropriate to answer in her 41-page report.

    Another thing is that the majority of her report meanders all over the place – most notably through the personal conversations in the stolen emails – before getting to the point of her report. Her investigation even implicates The Albert Einstein Institution in the US, the CIA’s alleged role in that organisation (again on the basis of stolen emails), and the CIA’s reported involvement in several coups around the world … (and on in the same vein). She wonders about the source of NGO funding and gripes about the “inter-locking directorates of civil society”. What about the inter-locking directorates of the military-led regime?

    Shameem talks of “conspiracy” and tries to show us “evidence”. She appears to have created most of that conspiracy herself by using stolen emails to make sinister links between institutions and people (like who’s married to whom, and what the alleged background of this or that organisation is).

    And then there are the recommendations. But we’ll leave that for you to read for yourself.

    Download a copy here (2.35MB).

    Enjoy.

  17. Shaista says no comments on newspaper report
    Bloggers, here is big mouth refusing to make any comments on her claim of NZ’s Green interfering politically in Fiji’s crisis. Shaista may have evidence to back up her claim, but it is her constant justifying the illegal regime that is astounding, especially for someone professionally qualified.
    What this means is this coup has brought out the best and worst of many of us. Some have sacrificed their professional ethics to be caught up in the race war or allowed personal vendetta to cloud their professional independence. To say that neither Evan Hunter or Russell Hunter’s human rights were abused when they were evicted from Fiji boggles the imagination of someone supposedly upholding human rights in Fiji!
    Shaista’s stance is a clear indicator to the international community of how much Fiji values human rights!
    Tuesday, June 24, 2008

    Taken from / By: Google
    Fiji Human Rights Commission chairperson Doctor Shaista Shameem has opted not to comment on a newspaper report that claims she has evidence of a New Zealand diplomat interfering with Fiji’s internal affairs.
    The report quoted her as saying New Zealand’s Ministry of Foreign Affairs deputy secretary Michael Green was involved in a conspiracy to cripple the administration of justice in Fiji.
    When asked whether she made the statements Shameem neither agreed nor denied, saying all she did was respond to a request from former opposition leader Mick Beddoes to investigate the matter.
    She says the FHRC had done all they could and the report had been passed on to the rightful authorities to conduct further investigations.
    The report in the Sunday Star Times went on to quote Shameem as saying the deportation of Evan Hannah and Russell Hunter was in Fiji’s national security interest.
    Shameem refrained from making any further comments on the issue saying the person to speak to was Mick Beddoes as investigations were yet to be completed.
    However when contacted last night Beddoes said he was surprised at the outcome of the investigation because his request was essentially to investigate whether or not the rights of both Australians were violated upon being deported.
    He says the results of the investigation were totally unrelated to his questions.
    Fiji Broadcasting Corporation

  18. @ ‘you cannot kill indigenous rights’ – have you ever thought that maybe these ‘loud indians’ have left the very sensitive Kai Viti issues dear to our hearts, for you, me & every other iTaukei to address, when it is now common knowledge that Khaiyums ‘sunset claus’ thesis is the foundation for bringing it to bear?

    The fight for liberty goes beyond race my friend and until each one of us puts skin in the game in the game, this is going to be a circular discussion.

    I’m glad that you have noticed that customary land protection is a huge void in the BKC draft. Perhaps you have some views to share on the matter, and if so Intelligentsiya would be honoured to share them for you.

  19. Keep the Faith,
    thats the point bro, its everyones concern and not the idgineous brothers and sisters issue.
    if these academics are honest then they should cover all and not just self interests. It is a difficullt issue and we dont have the immediate answers but pushing it aside will not solve it. only exacerbate it. like they say in legal circles, hard cases make bad law. and this is one prime example.
    i know some of our indo fijian friends see this as a recipe for disaster.

  20. @ ‘you cannot kill indigenous rights: You have a valid point bro. However there is so much information in the BKC draft that everyone is plowing through, and the highlights are two main messages:
    1 – the illegal and treasonous regime are entrenching themselves for the long haul and have no intention of free and fair elections.
    2 – they NEED to get off scot-free from all their inhumane, unjust and thug actions from as far back as the 2000 coup.

    In the face of the that, is there any point in continuous (some would say naive) acquiescence to all this tomfoolery when they have repeatedly made clear that they will shift the goalpost at will?

    If we care about how taxpayers and voters have been led by the nose around down the garden path, the only option is to reject this sham draft outright, or as Prof Narsey suggests, come together to prepare a Peoples Draft of a ‘social contract’ that is acceptable.

    The CCF and FWRM online forum last Friday made for interesting viewing. That ‘summit’ alone made very clear that absolutely no one in that room was interested in i Taukei issues even though some tried valiantly. The point to make here is that, if you don’t care enough to make noise about it, no one else will. Here are some points that may be of interest to you (and your article – please): Chapter 13 on Group Rights from the 1997 Constitution, Chapter 2 (s.11 onwards) of the Ghai draft constitution, s.27 of the BKC draft.

  21. Hear…hear…Wadan. Time is fast approaching for the the wise and good thinking Fiji citizens to work together in drafting their own consitution for widest circulation across all parties, all races and all faiths locally and internationally and the people draft constitution should also be made available to international agencies and governments who have been keenly following Fiji’s undemocratic mess.

  22. sorry guys but the only true constitution is the 1997 one.
    everything else is illegal.
    the only path is back to 1997. taking any other path is just setting another bad precedent and more illegality.
    the court of appeal has said it.
    the facts alleged by franky (and shyster) to support his coup have not eventuated or proven.
    so there is no legal or factual argument to justify going any other way. the ghai constitution was the regimes illegal idea. this 2013 draft is the regimes illegal idea. so why keep going participating in all these illegalities. u have a professor with no legal knowledge and a shyster who is a proven unethical and unpricipled lawyer giving you sound advice??? what dishonesty.
    how can u advocate this new path. u become as illegal as franky. sorry guys but thats the rule of law.

  23. This is one bitter professor whose hatred for the govt is only overtaken by his complex against Indo Fijian women. Typical of the crony classl what is wrong with Mrs Kewal as President? Or Dr Nur Bano Ali? They have much better leadership powers than your bitterness.

  24. @ Rule of Law – Yes you are true in saying that the 1997 constitution is still alive and standing and we all must abide by it for the reasons you stated.

  25. Why 1997? Surely the 1970 Constution is still valid since it was removed by an illegal coup?

  26. @oh please.
    All these Indian academics are threatened by Indian women, don’t you realize? For them Indian women should be barefoot and pregnant.

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