SEAN DORNEY, REPORTER: Yash Ghai, welcome to the program.
PROFESSOR YASH GHAI, CHAIRMAN, FIJI'S CONSTITUTION COMMISSION: Thank you very much.
SEAN DORNEY: How much of your draft constitution do you think actually made it into the final product which has now been promulgated?
PROFESSOR YASH GHAI: Well, there's a fair bit of it, you know even the exact language. But it is cast in a broad framework where the true significance of what they have borrowed is not captured. For example, they have taken a fair bit from our bill of rights. But they have an overarching sort of provision whereby it will be very easy for parliament to disregard a human right. Whereas, in our case, there is an article dealing with limitations and it makes it very hard for parliament, or the government, to derogate from a right. They don't have that protection.
SEAN DORNEY: One of the criticisms I've heard is there's a great concentration of power in the hands of the Prime Minister and the Attorney-General.
PROFESSOR YASH GHAI: In relation to the judiciary, the PM is sort of supreme, we might say. On the judiciary, on the Public Judicial Service Commission, on several other provisions, the prime minister has only to consult the attorney-general. And then they can make a large number of decisions, affecting a large number of people. And if this pair continue into the new post new constitution era then nothing is going to change.
SEAN DORNEY: How do you regard the provisions for the promised election in 2014?
PROFESSOR YASH GHAI: One of the, what they call, non-negotiable principles that must be reflected in the constitution talks of free and fair elections using the principle of proportionality, different from first past the post. While they have done that, they have completely ignored the provisions that the Commission made, and we gave a lot of thought to it, and now they have made the entire country one constituency. And they have also said that for a party to be, for its votes to be taken into account, they must have secured five per cent of the vote. Well, that's a very high percentage in a country which is small and there are minorities. So that... this may have the effect which ould be not a bad thing, of encouraging the larger party, but it does mean that minorities are not in a position to negotiate.
SEAN DORNEY: One of the things you advised on was a constituent assembly to evaluate the draft constitution but Commodore Bainimarama did away with that suggestion.
PROFESSOR YASH GHAI: Yes, he did away with that. It was in the decree which dealt with the process and the... of making it, approving it, the voting system, eligibility to be on the Constituent Assembly and so on, and he just disregarded this. He said, 'no I'm not going to have this body.' And that I think was a great betrayal of the people because when the process started, it was understood, it was stated in the decree that there would be a Constituent Assembly, which would consider our draft and make the final decisions. Well, now the two of them have made the final decisions. This is no way to make a constitution, pretending to be a democratic participatory process.
SEAN DORNEY: Your constitution provided some immunity provisions but this one goes so much further.
PROFESSOR YASH GHAI: Oh yes, it goes much further in two or three respects. One that in the breadth of immunities given, you can see, OK for what we might call treason or throwing a constitution... yes, OK, a few... no military will go, will leave harbour without such guarantee. But it covers all kinds of ordinary events which are not even... which are to do with personal relationship, civil contract kind of thing are protected. The whole range is astounding. And secondly, this immunity will apply not only to acts which were performed up to the time of the constitution being enacted but will continue into the future until at least after the next elections. So they have a carte blanche. Our immunity, immunity that we give, requires a prior oath by the people who seek its benefit to apologise for what they did, to say they would never, ever do it again, do things like this. Only then does immunity come.
SEAN DORNEY: So what do you think of Commodore Bainimarama's claim that this is a great democratic constitution?
PROFESSOR YASH GHAI: Well, of course he's wrong. And I think most dictators have a great capacity for self-deception. And he may be suffering from that or he's very astute. I doubt if he has read the constitution. He just repeats what his attorney-general tells him to say.
SEAN DORNEY: So you don't think it's a great constitution?
PROFESSOR YASH GHAI: Well, I'm afraid not. They deserve much better. I hope they will get that in due course.
SEAN DORNEY: Yash Ghai thank you very much for speaking to us.
PROFESSOR YASH GHAI: Thank you.