SODELPA: Land Is ‘NOT’ Safe …..a simple majority in parliament could result in loss of lands.

SODELPA: Land Is ‘NOT’ Safe

Pio Tabaiwalu

SODELPA, general secretary
This is in response to Aiyaz Sayed-Khaiyum’s statement in the Fiji Sun (Friday 6 June), saying once again that iTaukei land is safe – Part 1

To the iTaukei, land is not just an economic commodity. It is part of culture, kinship and group identity. That is why the iTaukei cling so fiercely to their land ownership. The 2013 Constitution does not reflect this indigenous attachment to their land.
Their claim that Fijian land has greater protection than before is a lie. Its protection has been weakened. In fact there was no reference at all to native land in the first draft of the Constitution.
It was left out completely. This caused great fear and uncertainty among landowners. It was only when supporters of SODELPA began to speak out that Bainimarama-Sayed Khaiyum decided to include specific reference to native land in their constitution. Without the SODELPA protests they would likely have enacted their supreme law with no special reference to native land.
SODELPA’s view that Bainimarama-Sayed Khaiyum have seriously weakened native land ownership is shared by others, including legal analysts. Lawyers for the Citizens Constitutional Forum concluded there is no real protection for Fijian landowners in the 2013 Constitution. This view was also shared by Professor Yash Ghai.
In previous constitutions there were special entrenched provisions, providing extremely strong safeguards for Fijian land ownership and ownership by the Banaban and Rotuman communities.
The 1997 Constitution laid down a very detailed and entrenched procedure for altering the following: Fijian Affairs Act, Fijian Development Fund Act, Native Lands Act, Rotuma Act, Rotuma Lands Act, Banaban Lands Act, Banaban Settlement Act and the Agricultural Landlord and Tenant Act.
To change these land laws required a two thirds vote in Parliament and a nine votes of the GCC nominees in the Senate. This was to provide extra safeguard in protecting these laws.
Sayed-Khaiyum and Bainimarama have scrapped this provision which means there just a need to have a simple majority in Parliament to change land laws. This is the crux of the issue which Sayed-Khaiyum is avoiding.
He is lying deliberately to the indigenous people by skirting around this missing “entrenched legislation” as contained in the 1997 Constitution.
The people’s draft constitution by the Yash Ghai Commission, that was scrapped by the Bainimarama-Sayed-Khaiyum regime, also included a listing of protected laws: iTaukei Lands Act (Cap 133), iTaukei Land Trust Act (Cap 134), Rotuma Lands Act (Cap 138), Banaban Lands Act (Cap 124) and Agricultural Landlord and Tenant Act (Cap 270).
All these safeguards were thrown out by Bainimarama-Sayed-Khaiyum.
Why? There has never been a proper explanation.
Instead they simply placed Fijian land ownership among a long list of provisions in the Bill of Rights.
However section 6 of the Bill of Rights (5) (a) (b) (c) permits rights to be limited and therefore changed. At least 55 of the rights listed can be subject to limitations.
Clause (c) of section 6 is particularly broad in its application. It allows parliament to pass “necessary” laws limiting rights and freedoms. This could obviously be applied to Fijian land. In our view there would be nothing to stop enactment of a change to Fijian land ownership provisions by a simple majority in Parliament.
Any such changes could further weaken or undermine Fijian land ownership. Even provisions relating to compulsory acquisition of property might be changed by a new law.
We note that the 1997 Constitution also permits limitations of rights. But these have to be “reasonable and justifiable in a free and democratic society”. This important protective condition is missing completely from the 2013 Constitution. Why?

Group ownership
Fijian land does not belong to individuals. It is owned by groups of people. This was clearly recognised in the 1997 Constitution. A full chapter of the document was dedicated to group rights. Much of this focused on Fijian land and protective provisions for it. Group rights are recognised as human rights. But there is no mention at all in the 2013 Constitution of iTaukei group ownership of land. This integral aspect of iTaukei culture has simply been removed. (Continued next week)

n The opinions expressed in this column are those of the Social Democratic Liberal Party. They are published by the Fiji Sun to enhance free and open debate ahead of the General Elections.

Statement from Qarase regarding the Minister for Elections and General Secretary of the proposed Fiji First Party


L. QARASE – 9 May 2014


The angry reaction from the Attorney – General, Mr Aiyaz Sayed-Khaiyum against criticisms on his dual roles as Minister for Elections and General Secretary of the proposed Fiji First Party raises an important issue.

The issue is that of a serious conflict of interest; the people of Fiji have a right to insist that this is not acceptable in a “free and fair” election.

In the Fiji TV news last night (8.5.14) Mr Khaiyum said that his position is no different from what has been the practice in the past. When I was Prime Minister, for example, I was also Leader of the SDL Party. While this information is correct the truth is that I was never Minister for Elections.

In fact, since Independence in 1970, there has never been a Minister for Elections. The reason for this is that both the Electoral Commission and the Office of the Supervisor of Elections must carry out their functions within the laws regulating their operations, with complete independence and without interference from the Government in power.

This golden rule has been broken for the first time by the Bainimarama-Sayed-Khaiyum regime with the appointment of the Attorney- General as Minister responsible for elections. Mr Sayed-Khaiyum exercises the power of this portfolio as a member of a government with no legal or popular mandate, no accountability and no parliamentary oversight. This is the crux of his problem and public concerns about his role.

In a parliamentary democracy, all government agencies must come under a ministerial portfolio. Both the Electoral Commission and the Office of the Supervisor of Elections have always come under the Prime Minister’s portfolio. As Prime Minister from 2000-2006 my role was two-fold in relation to the two agencies. Firstly, I was expected to deal with their submissions for budgetary allocations and, secondly, I had a duty to respond to parliamentary questions as they arose. In no way did I influence or interfere in the work of the Electoral Commission or the Supervisor of Elections. I am aware that the Prime Ministers who preceded me played a similar role.

In contrast to this legal and accountable role of an elected Prime Minister, both the regime’s Prime Minister and Attorney-General have been in complete control of the current election process. This has included the formulation of the onerous Political Parties Decree, the Electoral Decree, with its controversial provisions, the appointment of the members of the Electoral Commission and the appointment of the Supervisor of Elections. They also have control of the media resulting in self-censorship.

The Attorney – General and Minister for Elections, Mr Aiyaz Sayed-Khaiyum must do the right thing and step down from the position of Minister for Elections. Indeed there should be no Minister for Elections. The general elections must be carried out by a truly independent Electoral Commission and Supervisor of Elections.


Authorized By         L. QARASE