THIS was the news that emerged from The Fiji Times on Tuesday, May 12, 2015. Nasik Swami reported: “People with criminal convictions can be employed in the public service, Attorney-General Aiyaz Sayed-Khaiyum told Parliament yesterday.”
TV One showed the same in its six o’clock news, that the A-G defended his assertion on Section 26 of the Constitution: “Every person is equal before the law and has the right to equal protection, treatment and benefit of the law etc, etc.”
Persisting on the refusal to accept the explanation, the Opposition were likened to a bunch of school children. Laughter broke out as if in a circus. They were told to read the Constitution in no uncertain terms, although the section said nothing about conditions of being employed in the Public Service.
Opposition member Ratu Sela Nanovo asked the question about the legality of employing former prison inmates. As provisions of the general orders that are no longer in use clearly states having been part of the Commonwealth of Nations “common law”. In the absence of legal provisions, the rule of Common Law is practised by about one third of the world ie the British Commonwealth that includes Canada, India, African former colonies, Australia, New Zealand, Caribbean, etc and the US. Democratically it should apply to Fiji now that it is part of our aspiration.
“The beneficial qualities of the common law’s incrementalist evolution was most eloquently expressed by the future Lord Mansfield, then Solicitor-General Murray, in the case of Omychund v Barker, who contended that “a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of Parliament.” I Atk. 21, 33, 26 Eng. Rep. 15, 22-23 (Ch. 1744)” (http://en.wikipedia.org/wiki/Common_law#cite_note-25).
Watching the parliamentary proceedings on May 12, the Constitution was held up as a legacy of the Government. Now young people who have been incarcerated may be employed by the civil service after doing time and having the qualifications. This was stated in accordance to Section 26.
I suppose this is part of the evolution of our struggling government. As a senior citizen there is no chance of a government employment if one were to have been incarcerated during our younger days. The same provision applied of “being equal before the law” administratively as stated in the General Orders of our time.
Today we learn that three inmates in the absence of a parole board they have no one to appeal to for release having served the minimum of their life sentence.
But of course our 2013 Constitution was decreed and therefore comes under Section 173 and therefore lawful but questionable and perhaps far from just. This was raised by Professor Biman Prasad who reckoned that the PM could really leave a legacy if the section was removed now that we are seeking greater democratic recognition.
It is interesting that Prof Prasad sat quietly while the Minister of Trade and Tourism spoke of the Review of the Co-operative Act of 1996 which he led in 2008 as dean of the Faculty of Economics, Commerce and Management of USP on Thursday, May 14.
It seems the Attorney-General has to admit to the difficulties of our present Constitution. As I write soon after the 28th anniversary of the first coup in 1987 and the reference to the 2013 Constitution since Monday, May 11 to the May 14, one is struck about the disagreement from the Opposition and the body language of most government members.
While we have accepted the Constitution because it is better than without it, Cabinet might reconsider Professor Yash Ghai’s Constitutional Commission Report and amend appropriately so the amendment could be debated democratically. The present difficulty of dialogue is directly related to the dissonance brought about by the review of Acts and the present Constitution. It is holding the country back. But this is to be expected as shown below on April 21, 2013.
The Summary of Conclusions says it all: “As it emerges from an extended period under military rule, Fiji will need a Constitution under which a democratic culture can thrive and endure. While there are some positive aspects to the 2013 draft, unfortunately there are far too many flaws in the document.
“When measured against the fundamental values of the Commonwealth, there are several areas where the draft falls down, and it appears unlikely that Fiji will emerge as a true democracy under this Constitution.
“The executive arm of government will be far too strong, and the Parliament will be dysfunctional. Protection of judicial independence is weak and the rule of law not sufficiently safeguarded. The organs of State will fail to truly reflect Fiji’s diversity.
“The Bill of Rights offers inadequate protections. There are excessive constraints on the media, and on participation in the political life of the nation by ordinary people. The military is unlikely to bend to civilian rule.
“Though flawed, the Constitution will likely prove impossible to amend” (“An analysis of the draft 2013 Constitution of Fiji within the framework of fundamental Commonwealth values, Prepared for the Commonwealth Secretariat April 21, 2013”).
As the Attorney-General calls upon the Opposition to “Read the Constitution” he needs to consider the speedy review of the individual Acts, regulations and schedules. I state this with due respect and sincerity. Needless to say it will lighten his duty as the custodian of legal matters. This is the result of coups that started 28 years ago. It is in our interest to make the 2006 coup the last for at least a generation.
In conclusion, Government is trying to have a go at running the country despite the warnings and the present milieu in Parliament televised for public consumption. Speaking for myself on a day that has changed our country unrecognisably in terms of democracy it is hoped our Government will achieve its democratic aim eventually.
Of course Rome was not built in a day. Meanwhile we will have to resign ourselves to doing the best we can for a distinctive Fijian image that is naturally Pacific and not just desire to copy Singapore, Dubai or Abu Dhabi as a model.
* The views expressed are those of the author and not of The Fiji Times.
