SODELPA: Land Is ‘NOT’ Safe
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?
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.