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Category: Constitutional Offices Commission

  • Richard Naidu: Rule of law – maybe a time for Aiyaz to reflect on Fiji

    COMMENTARY: By Richard Naidu in Suva

    Breakfast they say, is the most important meal of the day.

    But last Wednesday it was possibly also the most dangerous. Because that’s when many people were likely to be reading The Fiji Times and choking over their corn flakes.

    They could have been reading more pontification from the former attorney-general Aiyaz Sayed-Khaiyum about “constitutionalism” and “rule of law” and “the embodiment of the values and principles surrounding constitutions” . . . etc.

    I am not often at a loss for words. But the sheer brazenness of someone who, in the course of nearly 16 years in government, paid little regard to any of these things, brought me pretty close.

    Last weekend Aiyaz Sayed-Khaiyum gave a rambling press conference complaining about all manner of things the new coalition government was doing. I was so irritated I put out a long statement debunking the so-called “breaches of the Constitution” he was alleging.

    But the man doesn’t give up.

    He is clearly unmoved by any embarrassment he may feel about having first accepted a Constitutional Offices Commission appointment that got him kicked out of Parliament under the Constitution he drafted; and then resigning the COC position when he realised he could not do that job and also be the FijiFirst party general secretary.

    All in the space of three days. That’s the legal equivalent of shooting yourself in both feet.

    So let’s begin by talking about “rule of law”, because I am beginning to wonder if anyone in the FijiFirst party even understands what it means.

    Rule of law
    Let’s begin with what it does not mean. Rule of law does not mean “I made the laws, so I rule”. Rule of law is a much more complicated idea than that. Many people have tried to define it, in many different ways.

    For those of us who are interested in it, it’s one of those things you sort of know when you see. But a central point of it, I think, is the idea that the law is more important than the people who make it or exercise power under it.

    So that means that our rulers — like the people they make the rules for — must respect it in the same way that we have to. Lord Denning, a famous British judge (millennials — look up his role in Fiji’s history) repeated (and made famous) the words of the 18th century scholar, Thomas Fuller: “Be you ever so high, the law is above you.”

    For more than a decade, the government of which Aiyaz Sayed-Khaiyum was part of, paid little heed to this idea. It followed the law when it suited them, but ignored it when it didn’t suit them.

    Let’s assume, for the moment, that he believed that the 2006 military coup (which the grovelling Fiji Sun once memorably described as “a change in direction of the government”) was lawful, together with the military government which followed.

    That government continued to tell us it would follow the 1997 Constitution. But in April 2009 Aiyaz Sayed-Khaiyum could no longer believe that the military government was lawful. Because, in a case brought by deposed by deposed Prime Minister Laisenia Qarase, the Fiji Court of Appeal clearly told him that it wasn’t.

    If you believed in rule of law, you would accept what the court had told you, quit your post and allow the lawful government to return, as the court required. He did not. Instead, he and his government decided that the 1997 Constitution had become inconvenient.

    So they just trashed it. This was not rule of law. Aiyaz and the then government had instead decided that they were above the law.

    The new constitution
    Fast forward to 2012 and the process of a new constitution. We were told (in a pompous government media statement on 12 March 2012) that the then government was “looking to the future of Fiji and all Fijians”.

    “During the process of formulating a genuine Fijian constitution,” we were told, “every Fijian will have the right to put their ideas before the constitutional commission and have the draft constitution debated and discussed by the Constituent Assembl . . .

    “As the process continues with the Constitution Commission and the Constituent Assembly all Fijians will have a voice.”

    What actually happened?

    The well-known constitutional scholar Professor Yash Ghai was flown in to chair a new constitutional commission. His commission travelled around the country, gathering the views of the people on what a new constitution should say.

    Hardly a perfectly democratic process, but better than nothing. The Ghai Commission drafted a new constitution. But the government didn’t like it. So much for the “voices” of Fijians. Out it went — constitution, commission and all. Six hundred printed copies of the draft constitution were dumped into a fire.

    Professor Ghai was sent packing. Instead we were handed the 2013 Constitution, pretty much from nowhere. No “Constituent Assembly”. Nobody “had a voice”. So, was that all a process Aiyaz Sayed-Khaiyum might call (his word) “constitutionalism”?

    Did things get any better?

    So, at least the new Constitution, and the elections of 2014, were a new start. Maybe we could expect the new elected government, of which Aiyaz Sayed-Khaiyum was chief legal adviser, to begin thinking about “rule of law” and “constitutionalism” and “embodying values and principles surrounding constitutions”?

    Here’s one more important point about rule of law. It’s not just about the laws which tell you what to do and what not to do. It’s also about the law protecting your rights and freedoms — and protecting what you are allowed to do.

    Your rights and freedoms under the 2013 Constitution include your rights of free expression, your rights to assemble and protest, your right to personal liberty — yes, the right not to be locked up at whim — among many others.

    They even include the right to “executive and administrative justice” — that is, to be treated fairly by the government and its institutions. So a government that is applying the laws of the land ought to, while applying them (in the words of Aiyaz Sayed-Khaiyum) “embody the values and principles” of that Constitution.

    How, then, were the “values and principles” of our Constitution being embodied when unions were repeatedly being denied the right to assemble and protest? How were they being embodied when under our media laws, journalists were threatened with jail for writing stories which were “against the national interest” (whatever that meant)?

    How were the “values and principles” of our Constitution being embodied when public servants lived in permanent fear of arbitrary dismissal?

    How were the “values and principles” of our democratic Constitution being embodied when the government passed important laws in Parliament, affecting things like our voting rights, citizenship, our rights to a fair trial and the regulation of political parties, all by surprise, on two days’ notice?

    No cell time
    There was an outcry earlier this week when police, over two days of questioning our former attorney-general, did not put him in a cell overnight. After all, former opposition politicians such as Sitiveni Rabuka, Biman Prasad and Pio Tikoduadua, when taken in for questioning for objecting to bad laws, were not so fortunate.

    They got to spend a night in police custody. Why, people asked, was Aiyaz Sayed-Khaiyum getting special treatment? The answer? He was not getting special treatment. What was actually happening was that — for the first time in many years — the police were applying the law correctly.

    If the person you are questioning is not a flight risk, there’s no need to lock him up. He is innocent until proven guilty. His personal freedom is more important than the convenience of the police.

    He can sleep in his own bed and come back for more questioning tomorrow.

    That would be, in Aiyaz Sayed-Khaiyum’s words, “embodying the values and principles of the Constitution”. But that is not something his government appeared to extend to its opponents when the police came calling. So I think we all deserve to be spared his lectures on “constitutionalism” for a little while.

    Perhaps instead our former attorney-general might find it more valuable to take some time to quietly reflect on how well the governments of which he was part “embodied constitutional values and principles”. He has a total of nearly 16 years to reflect on — and not all of us have forgotten.

    That ought to take a little while. And a few of us might then be able to enjoy more peaceful breakfasts.

    Richard Naidu is a Suva lawyer and former journalist (although, to be honest, not a big breakfaster). The views in this article are not necessarily the views of The Fiji Times. Republished with permission.

  • ‘Claims a serious matter’ – lawyer Richard Naidu responds to Sayed-Khaiyum’s attack

    ANALYSIS: By Richard Naidu

    Who’s broken the law? “Separation of powers” and all that stuff.

    Aiyaz Sayed-Khaiyum’s hour-long news conference on Saturday, January 21, seems mostly to have followed the usual FijiFirst party format.

    He pontificated at length while his party’s MPs stood silently behind him.

    From what I could tell, Sayed-Khaiyum’s speech was a mixture of political criticism and claims about the law. The politicians can respond to the political rhetoric. But claims that the government has broken the law are a more serious matter.

    Sayed-Khaiyum has raised a number of complaints suggesting that the new government has broken the law. He has not been very clear about why this is so. However, for the record, let’s go over these complaints (or at least what he seems to be suggesting):

    that former Constitutional Offices Commission members were unlawfully removed from office

    Wrong. The Commissioners were asked to resign. They did so. No law prevents them from resigning. If they had refused to resign, they would have remained in place (as others have done).

    Sayed-Khaiyum says that the PM had “no authority” to ask them to resign. Wrong. Nobody needs “authority” to ask anyone else to commit a voluntary act. The former Constitutional Offices Commissioners are not the property of the FijiFirst party. No law has been broken.

    that the Minister for Home Affairs should not have asked the Commissioner of Police to resign

    Wrong. It is a free country. The minister may make any request he wants — and the commissioner may accept or refuse that request.

    The commissioner refused the minister’s request, saying he wanted the Constitutional Office Commission process be followed. The commissioner remains in place.

    No law has been broken.

    that prayers at government functions breach the Constitution

    The Fiji Times front page 23012023
    The Fiji Times front page today . . . featuring lawyer Richard Naidu’s reply on constitutional matters. Image: Screenshot APR

    Sayed-Khaiyum read out s.4 of the Constitution (“Secular state”) and claimed that at government functions prayers were now only offered in one religion (presumably the Christian one).

    To suggest that this is something new — that this did not happen under the FijiFirst party government — is fantasy. And I too wish that those who offer prayers were sometimes a little more sensitive to other religions.

    But that is not the point. The Constitution does not tell any of us how to pray.

    No law has been broken.

    “not referring to all citizens as Fijians”

    The Constitution may refer to all citizens as “Fijians”. But the Constitution also guarantees freedom of speech. There is no law that says we must all call each other “Fijians”. We may call each other what we want.

    No law has been broken.

    replacing boards of statutory authorities before expiry of their terms

    Sayed-Khaiyum should be specific. Which boards is he referring to? If board members have resigned and been replaced, then what I have already said about resignations also applies.

    For a number of statutory bodies the minister has, under the relevant law, the power to appoint board members. This power generally includes the power to dismiss them.

    Replacing boards or board members mid-term is certainly nothing new. Sayed-Khaiyum may recall a recent example while he was Minister for Housing. He requested the entire Housing Authority board to resign before the expiry of their terms (and they complied).

    No law has been broken.

    taking back ATS [Air Terminal Services] workers. Sayed-Khaiyum seems to think that because a court decided that ATS is not required to take the workers back, ATS cannot do so.

    Wrong. Any parties to litigation — including employers and employees — can decide to settle their differences at any time — including after a court ruling. The new government has requested ATS to take its former employees back. If ATS has a legal problem with this, no doubt it will tell government.

    No law has been broken.

    that using vernacular languages in Parliament breaches Standing Orders

    Other than for the formal process of electing the Speaker and the Prime Minister, Parliament has not yet even sat yet.

    The new government wants to allow the use of vernacular languages in Parliament. The current Standing Orders do not permit this.

    So, to allow the use of vernacular languages in Parliament, the government will have to propose changes to the Standing Orders and parliamentarians will have to vote for them. That is normal procedure (Standing Order 128).

    No law has been broken.

    “separation of powers”

    Former attorney-general Aiyaz Sayed-Khaiyum during his attack on Fiji's new coalition government claiming breaches of the law and Constitution
    Former attorney-general Aiyaz Sayed-Khaiyum during his attack on Fiji’s new coalition government claiming breaches of the law and Constitution. Image: The Fiji Times

    Under the FijiFirst party government, this phrase seemed to be thrown around to justify anything. For example, the Parliament Secretariat would frequently refuse to allow opposition MPs to ask questions of government ministers because of “the separation of powers”.

    This justification made no sense. Section 91 of the Constitution requires ministers to be accountable to Parliament.

    In layman’s terms, “the separation of powers” means only that the legislature (Parliament), the executive (Cabinet and civil servants) and the judiciary (judges and magistrates) should each “stay in their lanes”.

    They should not interfere in each other’s functions. Sayed-Khaiyum has made no specific allegations that the new government has breached this concept. What law does he say has been broken?

    FijiFirst and the Constitution

    Sayed-Khaiyum’s FijiFirst party government applied the Constitution as it suited them.

    It never set up the Accountability and Transparency Commission that the Constitution required (s.121) It never set up a Ministerial Code of Conduct as the Constitution required (s.149).

    It never set up a Freedom of Information Act as the Constitution required (s.150). This was, after all, his own government’s constitution.

    His government treated Parliament — the elected representatives of Fiji’s people — with contempt. Almost all of its laws were passed under urgency (Standing Order 51).

    Typically, parliamentarians got two days’ notice of what new laws the government was proposing, sometimes less. That meant no one had time to review the laws
    or consult the people on them.

    The FFP government treated the people’s laws as its own property. Sayed-Khaiyum complains about board members being removed and public service appointment rules not being followed. He says nothing about the numerous arbitrary terminations of many public servants under the FijiFirst party government, including the Solicitor-General and the Government Statistician.

    It was no less than the Fiji Law Society president who this week described rule of law under the FijiFirst government as “sometimes hanging by a thread”.

    Against this background, not many lawyers are prepared to listen to Sayed-Khaiyum lecture us on the law.

    If you’ve got a problem, go to court

    The “separation of powers” doctrine is also clear that if you have a problem with the lawfulness of any government action, the courts are there to solve that problem. It is the
    courts who decide if anyone has breached the Constitution. It is not the secretary of the opposition political party.

    So, if Sayed-Khaiyum has a complaint that the law has been broken, he should do what the rest of us do — take it to court. That is what he frequently told the Opposition to do when it complained about what his government did.

    Sayed-Khaiyum has a little more time on his hands now. He is a qualified lawyer with a practising certificate. So — get on with it. Bring your complaints to court, because
    that is where they belong. Should Sayed-Khaiyum really be lecturing us about the law?

    Finally, Sayed-Khaiyum has still not explained to anyone how, in the space of three days in January, he got himself kicked out of Parliament by accepting a position on the Constitutional Offices Commission — and then had to resign from the Constitutional Offices Commission when asked how he could continue as general secretary of the Fiji First Party.

    Should we really be taking legal advice from him?

    Richard Naidu is a Suva lawyer and a columnist. The views in this article are not necessarily the views of The Fiji Times. Republished with permission.

  • FijiFirst seems to be ‘confused’ over role of Aiyaz, says Naidu

    By Felix Chaudhary in Suva

    The opposition FijiFirst party still “seems to be confused” about the role of its general secretary Aiyaz Sayed-Khaiyum, says prominent Suva lawyer Richard Naidu.

    “Mr Sayed-Khaiyum appears to have triggered his exit from Parliament by accepting a position on the Constitutional Offices Commission,” he said.

    “That means he is a ‘public officer’ as defined in the Constitution.

    “An MP who accepts appointment as a ‘public officer’ loses his seat in Parliament. That has already happened.

    “Mr Bainimarama is now suggesting that Mr Sayed-Khaiyum will continue as general secretary of FijiFirst.

    “But Mr Sayed-Khaiyum is still a ‘public officer’.

    “Under section 14(1)(b) of the Political Parties (Registration Conduct Funding and Disclosures Act 2013) a ‘public officer’ is not eligible to be a political party official.

    “In fact, under section 14(1)(a), while he holds office in the Constitutional Offices Commission, Mr Sayed-Khaiyum is not allowed even to be a member of the FijiFirst party.

    “So FFP’s plans for Mr Sayed-Khaiyum, now that he is out of Parliament, still seem confused.

    ‘Other parties will be writing’
    “No doubt other political parties will be writing to the Registrar of Political Parties, Mohammed Saneem, asking him to ensure that the FijiFirst party is complying with the law.”

    Naidu was referring to a video statement on the FijiFirst party Facebook page on Tuesday night where FijiFirst leader Voreqe Bainimarama said Sayed-Khaiyum’s exit from Parliament would mean that “he will be able to fully concentrate on FijiFirst matters outside Parliament”.

    “I will be leading the charge inside Parliament and he will be leading the charge outside Parliament,” Bainimarama said.

    “So to ensure that we are constantly in touch with our supporters and all Fijians on a daily basis, I have tasked our general secretary to be our voice outside Parliament.

    “He will be in our parliamentary office, he will give us advice and also issue statements on behalf of FijiFirst when Parliament is not sitting.”

    Registrar of Political Parties Mohammed Saneem confirmed that any person taking up public office must ensure that they comply with section 14(1) of the of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013.

    In a media statement issued after questions from The Fiji Times, he said public office holders according to section 14(1) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013 (Act) were not eligible to be an applicant or a member of a registered political party, not eligible to hold office in a registered political party, are not to engage in political activity that may compromise or be seen to compromise the political neutrality of that person’s office in an election; or publicly indicate support for or opposition to any proposed political party or a registered political party or candidate in an election.

    Felix Chaudhary is a Fiji Times reporter. Republished with permission.

    This post was originally published on Asia Pacific Report.

  • Tikoduadua asks Fiji’s police chief to resign over ‘matters of confidence’

    RNZ Pacific

    Fiji’s Minister for Home Affairs and Immigration has invited the Commissioner of Police to resign, citing concerns on matters of confidence in him.

    Pio Tikoduadua said the commissioner, Sitiveni Qiliho, had, however, asked that the government follow the process of the Constitutional Offices Commission.

    Minister Tikoduadua said he respected his decision, and we would let the law take its course.

    Commissioner Brigadier-General Sitiveni Qiliho
    Fiji Police Commissioner Brigadier-General Sitiveni Qiliho . . . asked to resign. Image: Talebula Kate/The Fiji Times

    Brigadier-General Sitiveni Qiliho was formerly in the military and in July 2021 successfully completed studies at the Royal College of Defence Studies in London. He was awarded a postgraduate certificate in Security and Strategy for Global Leaders.

    However, the minister added that he had no issue with the commander of the Republic of Fiji Military Forces.

    Border alert
    A border alert has been issued by Fiji’s Police Criminal Investigations Department (CID) for Opposition MP and former Attorney-General and Minister for Economy Aiyaz Sayed-Khaiyum.

    “Mr Sayed-Khaiyum is a person of interest and is currently under investigation regarding a case of alleged inciting communal antagonism,” according to the CID.

    It said it had yet to deal with Sayed-Khaiyum who was believed to be in Australia.

    It said that according to his travel history, Sayed-Khaiyum had departed Fiji on 26 December 2022.

    Opposition MP and former Attorney-General Aiyaz Sayed-Khaiyum
    Opposition MP and former Attorney-General Aiyaz Sayed-Khaiyum . . . on border alert. Image: Fiji govt/RNZ Pacific

    Meanwhile, Commissioner Qiliho said that was the normal monitoring mechanism of the CID to write to the Border Police to inform it if Aiyaz Sayed-Khaiyum returned.

    This article is republished under a community partnership agreement with RNZ.