All posts by nfp1

A fearful government

APRIL 17TH 2019

The frightened and paranoid government of Fiji is now threatening school teachers who might take part in a protest action for better working conditions – even in the school holidays. 

The 12 April 2019 internal memorandum from the Permanent Secretary of Education is an unbelievable document. 

First, she claims that a proposed Fiji Trades Union Congress protest action would be “in contravention of the laws of Fiji”. This is ridiculous. Protest actions can take many forms and many of them are clearly within the laws.

Then she claims that any “incitement or encouragement” of others to take part in protest action would be unlawful.  This is as nonsensical as the statement above. 

On 3 May teachers will be on holiday. The Ministry has no right to tell them where they should be. But the Ministry seems very anxious to tell them where they should not be!

This is a  government that is clearly trying to instil a culture of fear and suppression to mask its own fear of being exposed as a dictatorial administration cloaked in its version of pseudo-democracy.

The Government is afraid that worker protests will unmask its pretence, during the big Asian Development Bank conference it is hosting in the first week of May, that Fiji is a united country with a population that supports the government.

The trade union movement and its leadership should get more emboldened and fight such threats being dished out by a stuttering administration trying to divert attention from the fundamental ills plaguing the nation.

They can run from the people for a little while. But they cannot hide.

Authorised by

Hon. Prof. Biman Prasad

Leader – National Federation Party

RBF Governor shouldn’t mislead the nation

APRIL 16TH 2019

The National Federation Party says the Governor of the Reserve Bank of Fiji must realise that the Fiji First government’s reckless and unsustainable spending is ruining real economic growth as evidenced by several factors instead of politicising the issue.

NFP Leader Professor Biman Prasad says recent remarks made by the Governor of the Reserve Bank of Fiji in defence of liquidity levels and economic growth are misleading and far from the reality. 

“The RBF Governor is reported to have told both an economics workshop at University of the South Pacific last Friday and the Fiji Chamber of Commerce economic summit on Monday that there was no liquidity crisis”.

“The Governor said RBF had the authority to reduce its statutory deposits to zero (0) percent to allow liquidity to jump from the current level of $347 million to $1 billion if the need arises”.

“This is a highly irresponsible and illogical statement, similar to the Governor’s earlier statement of last month that there was enough money on RBF vaults to last for 5 years”.

“The Governor’s loose political talk is camouflaging the reality. He knows that his statements in defence of liquidity and the economy are illusory”.

“And he knows that the truth is that commercial banks are offering interest rates of as high as 6% to attract term deposits to boost liquidity levels. He also knows that because of this reason, commercial banks have increased lending rates”.

“The RBF Governor knows that it is impractical to reduce the requirement for statutory deposits to zero percent. It is a ridiculous proposition. Any financial institution, most importantly commercial banks are statutorily required to maintain a certain level of deposits”.

 “The Reserve Bank of Fiji’s Economic Review for February 2019 paints a bleak picture of lack of growth in key economic sectors. Therefore, instead of realistic growth, the economy is consumption-driven and not leading to sustained and real growth”.

“The RBF Governor must know that he has  put himself under the spotlight for being economical with the truth. Despite saying key economic sectors that generate real growth have declined, both the RBF  and Government continue  to forecast positive economic outlook”.

 “This raises questions yet again about RBF’s independence and impartiality”.

“The RBF Governor is obviously parroting a political view despite the harsh reality staring directly at us”.

“The RBF Governor should maintain neutrality and independence of his office and refrain from parroting government’s political position on the state of our economy.  Right now, we seem to be going  through a crisis of confidence in the country”.

“What we need is more confidence building measures in all sectors of our economy  and this can only be done by a properly constituted economic summit to address some of the fundamental concerns that the business community and indeed the general population has”. 

Authorised by

Hon. Prof. Biman Prasad

Leader – National Federation Party

Aviation safety seriously compromised

MARCH 20TH 2019.

Aviation safety has been seriously compromised with both Nadi and Nausori International Airports unable to provide correct air traffic control information to pilots of both departing and incoming aircraft.

This is due to an acute shortage of air traffic controllers who are not at work over Air Ports Fiji Limited’s handling of their employment conditions.

National Federation Party Leader Professor Biman Prasad says he has been informed that both Nadi and Nausori Airports have been classified as Category G – which means pilots taking off or landing their aircraft are doing so at their own determination of aviation safety.

“They are not able to receive information from air traffic controllers due to acute shortage of staff. Both Nadi and Nausori airport control towers are severely under-manned by over-worked controllers, Further, training, recreational and helicopter flights have also been stopped”.

“Aviation safety is seriously compromised. We have been informed pilots do not receive information about Fiji’s Flight Region that also covers regional airspaces. We are surprised that CAAF (Civil Aviation Authority of Fiji) that is supposed to be the regulatory body is silent on such a serious issue”.

“This is unacceptable. We question whether the CAAF Board, which is made up of non- aviation experts, understands the seriousness of the situation caused by Airports Fiji Limited’s handling of the employment issues of air traffic controllers”.

“Worse, the Minister responsible for Civil Aviation, who is the Attorney General is also silent. Ironically, he is also responsible as Public Enterprises Minister for Airports Fiji Limited whose Executive Chairman’s handling of talks with air traffic controllers has worsened the situation”.

“We question does this mean that profitability and declaration of hefty dividends is more important than aviation safety and lives of the people?”

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Professor Biman Prasad

Leader

Shooting in christchurch a barbaric act

March 17th 2019

The National Federation Party is deeply shocked and saddened by the death of three people who are Fijian nationals in the massacre carried out by an extremist in two mosques in Christchurch.

One of the three, the Imam of Lautoka Mosque Haji Musa Patel had served as Head of the Lautoka mosque for almost three decades. He was a well-respected an embodiment of wisdom.

We feel the pain and suffering of the three families who lost their loved ones in this barbaric act. Their loss is immeasurable and irreplaceable. No words can bring solace and comfort to them in their hour of grief.

The gruesome killing of worshippers inside their place of worship in a nation known for its peace and tranquillity will never be forgotten for a long time to come. Killing Muslim worshippers while they were praying is cowardly and despicable.

Like New Zealand, Fiji is a multiracial, multi-religious and multicultural country. We believe in co-existing peacefully. That is why New Zealand and Australia are main destinations for Fijians who have or are planning to migrate.

So, the last thing one expects is for the peace and tranquillity to be shattered in such a gruesome manner.

This is a time for all our beloved citizens to galvanise into a united force and support our Muslim community here and elsewhere in overcoming their grief.

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Professor Biman Prasad

Leader

Government will never implement MOG Recommendations: NFP

February 21, 2019

The National Federation Party believes the current Government will
never implement the recommendations of the Multinational Observer Group (MOG) on the conduct of future elections.

NFP Leader Professor Biman Prasad says the Party’s belief is based on the fact that scant regard was paid to the MOG Report as well as the Report of the Electoral Commission following the 2014 general elections.

“The Reports were referred to the parliamentary standing committee on Justice, Law and Human Rights but he committee did not report back to parliament for 28 months from then until 1 st October 2018 when parliament was dissolved”.

“The MOG Report should have noted this but failed to do so. This is most unfortunate”.

“And this MOG Report will face similar fate because the recommendations if implemented will prevent government from giving handouts and freebies once parliament is dissolved and writs for elections are issued”.

“It will also prevent deliberately orchestrated social media hate campaign that we fell victims to when fake news sites carrying legitimate logos of mainstream media were created and published malicious and frivolous claims that NFP was in a coalition with SODELPA and further that Sitiveni Rabuka would abolish Diwali as a public holiday”.

“This was noted with concern by MOG. The sites were eventually mremoved but by then irreparable damage had been done.”

“Similarly, MOG also noted with concern the manner in which Ministers campaigned and discharged their duties by opening buildings and handing out grants because there is no caretaker provision in the Electoral Act”.

“MOG has recommended a code for Government and MPs but we seriously doubt that this will be done by this Government because apart from racial bigotry, handing out grants and walesi decoders and launching free Wi-Fi were other campaign tactics in gross abuse of taxpayers’ funds”.

“This report is similar to the last one in terms of key recommendations like changes to official election material that should include the ballot paper, to carry party identification, changes to the Political Party (Registration, Conduct, Funding & Disclosures) Act that was initially promulgated as a Decree in January 2013, and review of the Media Industry Development Authority Act, which was also promulgated as a Decree in 2010”.

“We will await and see whether this Report is referred to the parliamentary standing committee on Justice, Law and Human Rights during the next sitting of parliament from April 1st to 5th and whether the Committee prioritises its scrutiny of this report and submissions that will be made to enable it to report back to parliament quickly instead of putting the Report on the backburner”.

Authorised by:

Professor Biman Prasad

Leader, National Federation Party

END OF WEEK STATEMENT – GRAVE ENVIRONMENTAL DEGRADATION hON. LENORA QEREQERETABUA

15/02/2018

The need to strengthen the Department of Environments’ EIA Unit

PLEASE CHECK AGAINST DELIVERY

Mr Speaker Sir, I rise to give my end of week statement where I wish to highlight the dire need to strengthen the powers of the Environmental Impact Assessment Unit of the Dept of Environment, in light of recent incidents of grave environmental degradation in Fiji, some of which have only recently come to light.

Fiji has now ratified all of the major global human rights treaties, including last year’s ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Environmental protection is essential to fulfilling many of the rights recognized in these agreements.

Mr Speaker, Sir, my following comments therefore should not be taken by the Minister responsible as an attack on his or government’s competency. Rather, because I offer feedback, observations and suggestions after having consulted with stakeholders from Environmental Law, from Civil Society and environmentally-minded members of the public, I hope the Hon Minister will take on board the points I highlight as I lobby for more resources for the EIA Unit, as we are all stakeholders in this plight.

The report by the UN Special Rapporteur for Human Rights and Environment, Dr David Boyd at the end of his visit to Fiji last December made a number of significant observations regarding the Environment Management Act and in particular the EIA process.

For the information of Honourable Members and the public, Sir, Dr Boyd is an Environmental Lawyer and an internationally renowned expert on human rights and the environment, who was appointed by the UN Human Rights Council last year.  I accompanied Dr Boyd and his colleague, Ms Soo-young Hwang on several site visits in Suva during their stay here.

In his report Sir, Dr Boyd said it was clear that the Ministry of Environment is seriously under-resourced. For example, according to the Department of Environment website, under the heading Challenges, the website says “One of the major challenges is the lack of financial and technical resources; currently there are only “5-6 staff who handle waste and pollution related matters Fiji-wide” as part of the Waste Management and Pollution Control Unit.

The report goes on to recognise Fiji as a regional leader in recognizing the right to a healthy environment, having ratified multilateral environmental agreements, as well as the human rights treaties I mentioned earlier.   BUT the report stressed that We must have a strong Ministry of Environment to fulfil those commitments.

An issue Dr Boyd said had been raised repeatedly with him were problems with Environmental Impact Assessments, with members of the public expressing to him frustration with their inability to gain easy, timely and affordable access to important information, the lack of adequate consultation, constraints on the public’s ability to participate in assessment processes, the poor quality of some EIA reports, and the lack of access to remedies. Examples cited include proposed mining projects and the raising of the Wainisavulevu weir in Naitasiri by EFL.

Sir, Dr Boyd had heard from landowners about extensive mineral exploration activities affecting their lands without consultation and before the completion of any environmental assessment.

Dr Boyd agreed with me and many, many others and called the fee of $4.85 per page for an EIA report excessive, suggesting that it be waived for individuals and groups seeking to protect the environment and human rights.  I think EIA reports should be public documents, available to the public free. This is basic transparency and good governance.

Sir, The Environment Management Act 2005 provides for the appointment of an Environmental Tribunal, but there is no publicly available information regarding its members, procedures, or decisions. Rules governing the tribunal were published in 2013, but the absence of other public information makes the process as clear as mud.

Dr Boyd made an excellent suggestion in encouraging Fiji to consider creating an online environmental registry that would make extensive information publicly available, including permit applications and decisions, pollution data, and enforcement actions taken. Such a registry would enhance the public’s ability to participate meaningfully in environmental decision-making in Fiji.

Mr Speaker, Sir.  The following are comments gathered from my consultations with environmental law experts and conservationists working in and around Fiji and based on a number of cases reported to them by the community;

They all agree that the DoE does not have enough expertise, capacity or resources to adequately implement EMA and the EIA.  

Also highlighted, Sir, was an apparent lack of proper and meaningful consultation.  Two cases from Lautoka are prime examples; Field 40, Lautoka where a cement factory is placed right on the edge of the large community, with only a road separating the community from the cement factory.   Here families have been complaining about health, noise and many other issues associated with having such a factory placed in your backyard.   In Vakabuli paipai River between Lautoka and Ba representatives of a community complained about gravel extraction affecting all aspects of their livelihood.  Sir the extent of extraction has left the river and its banks with nothing but mud.  The human cost is also high, generations of families have lived in the area and have lost livelihoods.  In these communities, residents complain about the lack of consultation, lack of information and lack of knowledge about developments that occur in their backyards.

If I may dwell briefly on Terms of Reference, Sir.  In some instances the TORs , which guide the content required of the EIA have tended to be generic, rather than specific to the proposed development. Case in point – building a jetty at Maui Bay had same TOR as Magma Mines for mining in the Sigatoka river.

The TOR must be developed to reflect not only the specific requirements of the law, but also to ensure that it is relevant to the type of development, so that risks that are specific to certain developments are properly assessed. 

This requires persons with relevant expertise and or knowledge about the type of development and able to provide relevant input to the TOR. 

The observation is that DOE staff don’t seem to be able to critically review EIA reports – often times the TORs are not fulfilled though the EIA was approved, and the reports are largely desktop surveys rather than new data. If we don’t have suitably qualified people in Fiji; can we not ask our friends Australia and in particular NZ to second us personnel with experience in their much more robust environmental regulation space?

My consultations found issues with the way in which EIA Consultants are hired, Sir. 

The roster of Department of Environment (DoE) approved EIA Consultants continues to include some that have undertaken, and been allowed to undertake, their EIA consultancies with disregard to their TORs, contrary to the EIA procedures.

[Example if required – We have experienced where an unethical “consultant” failed to reveal to folks in an informal settlement that a development would result in their homes in the settlement being removed and then asked them to sign a document that they have no objection to the development].

Sir, the DoE must, in accordance with the Environment Management Act, be equipped, and be allowed, to fully manage the whole EIA process which appears not to be the case at present. The extent and manner in which the critical “public consultations” are to be conducted is ill-defined. The DoE fails to accompany and monitor the manner in which a consultant conducts an EIA in particular the extent and integrity of the public consultations. Currently the DoE frequently appears limited in its ability to monitor environmental issues; to take proactive measures to mitigate against environmental degradation; and also to respond when members of the environmentally concerned public draw its attention to cases of environment degradation and seek its intervention

Public Consultations are frequently not properly advertised, held during working hours, not minuted, and not attended by the relevant town council nor by senior DoE personnel suggesting that they do not take the development and the EIA process seriously. At times it appears as though the public is only included in a “box ticking” exercise in a pretence of a “public consultation” process when in reality the decision has already been made that the development will proceed irrespective of the concerns of the potentially effected community*. There still remains the ludicrous notion that only those living within a 1 kilometre radius of the proposed development may be subject to its environmental impact.

*[In the case of the Tengy Cement factory an EIA consultant held a charade of a public consultation after the construction of the factory was near completion].

Currently, Mr Speaker Sir, it is the developer that pays the EIA consultant which obviously risks a potential, or actual, conflict of interest. It is not in the commercial interest of an unethical EIA consultant to reveal to the public what they may know to be the full extent of the potential negative impact of a development. It is proposed therefore that the developer should instead pay the DoE who then pays the consultant who is then directly answerable to the DoE in terms of the manner in which he/she complies with the TORs and conducts the EIA.

In addition, the EIA study must be reviewed after it is completed.  This is mandatory under section 30 of EMA.  The review must be conducted by an independent consultant or by a review committee appointed by the EIA Administrator or the approving authority.   After the review the report should be available for public inspection. There is little to no information about the review of any of these reports however the review process is a very important part of the EIA process. 

Sir, the first case we are aware of that was prosecuted under EMA is indicative of the lack of awareness and knowledge of EMA by both the Prosecutor and the Courts. In the DPP vs China Railway First Group (Fiji) Limited CR 788/2017 the China Railway Company was charged with one count of Undertaking an Unauthorized Development contrary to section 43(1) of EMA. A penalty of $10,000 (from a possible or maximum fine of $750,000) fine was given to the Company for the development of an asphalt plant that was 90% completed without a proper EIA.  The sentencing remarks by the Magistrate Court indicated a lack of understanding of the EIA process and EMA as a whole given that there were no remedial actions ordered and the magistrate accepted the lack of evidence of environmental impact as a mitigating factor.

I beg the Hon Minister to find out if the DOE has been requiring environmental bonds from projects, including those that may be at high risk of damaging the environment (i.e. dredging, mining). If the answer is no, it means the law is not being used to its full capacity.

To quote Dr Boyd again, Sir, Fiji faces major challenges related to the implementation and enforcement of the commitments made in its environmental laws, regulations and decrees.

EIA unit of the dept of the environment needs teeth, sharp ones.

As I wind up, Sir, and in case I have not yet convinced the House; here is a short story of my own;

  1.  Last year, some friends of mine in Nadroga needed my help to file a complaint to the Dept of Environment about some dredging equipment which had come lose during a storm and had been thrown onto the reef just outside the mouth of the Sigatoka River.  These friends had called the Dept, which had informed them that they had to fill out the complaints form.  Which is NOT available on their website!  So in order for these environmentally-minded friends in Nadroga to file a complaint to the Dept, I had to go to the Dept office on MacGregor Road for a hard copy of the form, scan it and email to Sigatoka, for them to download, print, fill out, scan and email back to the Dept!  This was a small inconvenience for me, but would be virtually impossible for many in rural and maritime areas, where much of the environmental degradation occurs out of sight and out of mind as it were.
  2. I asked a question in the comment section of the Dept’s website on April 17, 2018.  Yesterday, February 14th, 2019, some 10 months later, my comment was, and I quote from the website,  “still awaiting moderation”! 
  3. My comment on the website was to request that the complaint form be made available on the website.

I hope Sir that the EIA Unit of the Dept of the Environment gets the urgent support and resources that it so desperately needs to carry out the work it is supposed to do under the Environmental Management Act of 2005.  And I hope Sir that the Unit is allowed to do this work independently, within the bounds of the law and without any meddling.

Mr Speaker, Sir, I end by registering my appreciation to the Parliament of Fiji, which I dare say, took note of my sentiments in my December Maiden Speech and earlier social media comments in regards the number of single-use plastic bottles used in this chamber.  It was pleasing to find this note on my desk on Monday; it is a step in the right direction. 

Change is indeed coming.

Thank you, Mr Speaker, Sir

IMPORTANCE OF HINDI CONFERENCE TO FIJI

Monday 4th February 2019

The National Federation Party believes Fiji’s hosting of the first ever regional international Hindi conference next month provides a platform to local participants to reinforce the importance of the Hindi language and not conversational Hindi as prescribed in the 2013 Constitution.

NFP Leader Professor Biman Prasad says the Party welcomes Fiji’s hosting of this international conference and its inauguration by India’s Minister for External Affairs Sushma Swaraj.

“And local Hindi scholars, religious and cultural organisations who participate in the event should raise concerns on how the 2013 Constitution would undermine Hindi language”.

“Section 31(3) of the Constitution prescribes the compulsory teaching of conversation and contemporary i-taukei and Fiji Hindi languages in all primary schools”.

“Fiji Hindi is not a language. Fiji Hindi is a dialect. Similarly, conversational i-taukei is not the official language of our indigenous community”.

“A few years ago religious organisations made an attempt with the then Education Minister to formalise the teaching of formal Hindi language in all primary schools but this never eventuated”.

“During last year’s election campaign, the Attorney General who was also the Education Minister said the Constitutional provision did not prevent the teaching of formal Hindi in primary schools but this too disappeared into thin air”.

“Therefore the 2013 Constitution quite erroneously prescribes both dialects as languages to the detriment of the rich traditions, culture and unique languages of the two major communities”.

“This will in the long term result in loss of both formal Hindi and i-taukei as the official languages. This must be prevented at any cost because of its catastrophic consequences on religion, tradition and cultural values”.

“It must be noted that Hindi scholars in Fiji were renowned for being extremely proficient in Hindi language – not conversational Hindi. They all spoke, taught and preached Hindi language. This uniqueness found in Fiji, and now in our regional neighbours Australia and New Zealand due to migration from Fiji and India, is a pride of the Indian diaspora”.

“All scriptures and religious discourses are in Hindi language. Tradition, culture and customs were preserved and basis of consolidation of Indians after the end of Indenture or Girmit because of the Hindi language”.

“The 2013 Constitution should not be allowed to destroy this rich history”.

The conference to be held from March 15-17, is being organised by the Government of India in partnership with the Fiji government and close cooperation with the University of the South Pacific.

Authorised by:

Prof. Biman Prasad

Leader of the National Federation Party

Code of Conduct Bill 2018 – NFP Submission to the Standing Committee on Justice, Law and Human Rights

Thursday 10th January 2019

Submission to the Standing Committee on Justice, Law and Human Rights – Code of Conduct Bill 2018 (33 of 2018)

Thank you very much Honourable Chairman for allowing the National Federation Party to make submissions on this very important piece of proposed legislation.

We regret that, as usual, we have been given a short time to make submissions – and even then, the time for our appearance before this Committee has been moved forward by a day. This means that we have less time to consult our members and advisers. If consultation is to be meaningful, the Committee has to review its process to allow sufficient time for clear thought to be given to submissions.

NFP agrees that a Code of Conduct is needed for officers such as the Head of State, Prime Minister, Cabinet Ministers, Assistant Ministers, Speaker of Parliament, Members of Parliament and heads of organisations as listed in Schedule 6 of the Bill. We will come later to the need for more inclusions. We believe in the principles of transparency and accountability, and it is our belief that a proper legislative framework is key to achieving these.

However, we have strong reservations about the Bill in its current form. In short:

  • the rules governing the Commission mean it will be anything but accountable or transparent. Everything it does will be shrouded in secrecy
  • the possibility that a complainant can be punished for filing a “malicious complaint” means that people will be discouraged, not encouraged, to lodge complaints

What this means is that the Code of Conduct Act (as it will become) will be an exercise in window-dressing. It will look good on paper – but in practice it will be a toothless tiger against the people it should control, while being a threat to the people who complain.

Some of our concerns are set out below: –

  1. Appointing authority

The definition of “appointing authority” is vague. It is not clear, for example, who is the “appointing authority” for MPs. Who is the “appointing authority for Ministers? Is it the Prime Minister, or is it the President?

Submission:   

The person who is the “appointing authority” for the purposes of each Schedule should be stated in the Schedule.

  1. Anonymous Complainants[Section 10 (3)]

Owing to Fiji’s complex political climate, the majority of people are afraid to lodge complaints against people in positions of authority for fear of victimization and prejudice. Even in the course of the election campaign we came across several people who witnessed breaches of the Electoral Act but were too afraid to come forward “on the record” to give evidence about them.

It is true that, if an anonymous complaint is received, it is sometimes hard to investigate if the complainant will not identify himself or herself to give the relevant evidence. But that is not always so. Sometimes the truth of a complaint can be established through other sources.

Section 10(3) operates as an absolute bar against anonymous complaints. That is unnecessary. The Commission should not be restricted from investigating a complaint merely because it is anonymous. If an anonymous complaint cannot be investigated for lack of evidence it can be dismissed. But it should not be dismissed just because it is anonymous.

Submission:

We submit that s.10(3) should be deleted so that the Commission has the power to investigate anonymous complaints if it wishes to do so.

  1. Grounds on which the Commission will not investigate a complaint[Section 12 (1, 2)]

This section discourages transparency. It does not encourage it.

Clause 12(1)(b) allows the Commission to dismiss “malicious” or “politically motivated” complaints. If a complaint is “malicious” that means it is not made in good faith (see s.12(1)(a) so there is no need to for reference to a “malicious” complaint.

The suggestion that a complaint should be dismissed because it is “politically motivated” is unusual. There is no need for this.  This means, for example, that if there is a clear complaint that a Minister has been, say, acting inappropriately with a lobbyist, even if the evidence is clear and the matter easily capable of investigation, it can be dismissed because, say, an Opposition Member of Parliament or a person who is a member of an opposition political party made the complaint. Worse, after making the complaint, that person can be prosecuted!

The same is true about complaints which are allegedly made for the purposes of “discrediting” or “causing reputational damage” to the subject of the complaint. There seems to be a disconnect with clause 5 of the Bill that requires the commission to conduct its “investigations in private”.  If this is the case, the only way that a complaint to the commission will cause “reputational damage”, is if there was public disclosure.

The motivation for the complaint is irrelevant. The substance of the complaint is what is important.

Next, (s.12(1)(c)) the Commission will not investigate a complaint which has been disclosed to any other person or entity apart from the Commission. This means, for example, where a complaint has first been aired in the media, the Commission will then say “I cannot investigate it”.

This section also means that even if an allegation is raised in Parliament – the people’s house – the Commission can say “I cannot investigate it.”

This is the opposite of transparency.  Institutions like the media and Parliament should play a critical role in monitoring the accountability and transparency of public officials. If a complainant chooses to go to the media to highlight a complaint, the Commission should not be barred from investigating it.

Finally, the suggestion that the Commission cannot investigate because an investigation would be “inappropriate or inexpedient” leaves wide open the circumstances in which the Commission can ignore complaints.

  1. Section 13

The Government continues to be obsessed with “political motivation”. We have seen from its many public responses to criticism the accusation that critics are “politically motivated”.

The Government changed the rules to prevent an Opposition MP being the chair of the Public Accounts Committee of Parliament because it accused the then chair (our leader, Prof Biman Prasad) of “political motivation”.

Now this obsession is finding its way into laws about transparency and accountability.

Now a person can actually be prosecuted because the Commission forms the view that a person’s complaint is “politically motivated” or designed to discredit or defame the subject of a complaint.  There is no need for this because, according to the Commission’s own rules, nothing will become public anyway. So if a complaint is made, no-one else will hear about it. How can a person be “discredited or defamed” except to the members of the Commission?

So this section will achieve the exact opposite of transparency. It will make people fearful of making complaints.

Part 5

The whistleblower protections in Section 13 Part 5 are meaningless. They should, for example, protect civil servants who witness and wish to report on unlawful actions of Ministers.  In theory that civil servant is protected from dismissal or demotion.

In practice, however, all that has to happen is for the Commission to find that a civil servant’s complaint is “malicious” or “politically motivated” and the civil servant loses all protections under s.24.  Then the civil servant can be prosecuted under s.13!

The tone and content of these provisions are a painful example of how legislation has been framed in this country for the last 12 years, with the sole objective of discouraging genuine public dissent within the legal framework, as well as acting as a Sword of Damocles and a deterrent for raising genuine grievances for fear of victimization.

Submission:

The above provisions need to be comprehensively reviewed, having regard to the need for genuine transparency and accountability.  The Government needs to go “back to the drawing board” and re-think the purpose and effect of these provisions.

  1. Disclosure of the outcome of investigations

If the Commission is to be truly transparent and accountable, it must disclose the outcome of its investigations. It is fair that any such disclosure or reporting should balance the rights of an individual against the public’s right to know about matters under investigation.  There should not be an absolute bar on disclosure.  The Commission should have the right to report on the outcome of investigations having regard to the above factors.   See for example, the rules for disclosure of investigation outcomes in Australia:

  1. Extension of Code of Conduct[Schedule 6]

Schedule 6 omits very important taxpayer funded organisations such as the Chairs and Chief Executive Officers of Fiji Sugar Corporation and Fiji Broadcasting Commission. These are either fully owned Government Commercial Companies or continue to be funded by taxpayers. For example, FSC, to all intents and purposes is now fully controlled by Government. FSC owes over $170 million to Government that was guaranteed by Government. Under FSC’s 2018-2022 Strategic Plan (not yet made public) FSC is seeking the conversion of loans into shares – in other words, writing off the debt.

Similarly, Fiji Broadcasting Commission is given $11.3 million annually as a so-called “Public Service Broadcast” grant. So, whatever these entities may be called, they are in reality no different from publicly-funded statutory authorities.

Submission

To review schedule 6 to include Commercial Statutory Authorities and Government Commercial Companies who receive significant funding from Government. In essence, an extension of the Code of Conduct Bill to include people who are charged with managing large sums of taxpayer money to fund their organisations.

  1. Lobbyists[Schedule 1 (9)]

The provisions in relation to “lobbyists” seem to be an afterthought. First of all, there is no definition of what a “lobbyist” is.  This could be an NGO representative seeking law changes, or a business seeking incentives for a particular industry.  Lobbyists are therefore not necessarily a bad thing. But the provision is meaningless until the law defines what a “lobbyist” is.

Submission  

The Bill must define the term “lobbyist” to give this provision any meaning.

References to Code of Conduct for Lobbyists in other jurisdictions:

  • Australian Government, Department of the Office of the Prime Minister—Lobbying Code of Conduct (2013) in which the Major Learning was that a Registry for Lobbyists was established containing their names, contacts and the company/entity that they represent.
  • In the State of Alabama Title 36 Section 21 Part 1 in which they provide a proper definition of the word “Lobbyist”.
  • New Zealand study on the dangers of unregulated lobbyists (Tyler, 2015).
  1. Declarations to be made public

We strongly recommend that the declarations made by the Executive and Members of Parliament are registered with the Secretary General and made public.

In essence, this would limit what this Bill would deem as “frivolous” or “politically motivated” complaints, as having access to information such as this, complainants are able to fairly adjudicated the authenticity and correctness of a claim before bringing it before the Commission.

Conclusion – a toothless tiger

The end result of the Code of Conduct is that the Government will promote the Commission as an example of so-called transparency and accountability. However in reality the Commission will be a toothless tiger – and will be seen as such.  This will only encourage greater cynicism about transparency and accountability, which is dangerous in a country such as Fiji where democracy, good governance, accountability and transparency are not well-established concepts.

The Commission has few powers against those it is supposed to watch.  Complaints can be easily dismissed. Worse, complainants can be prosecuted or victimised.

A Code of Conduct law, and an Accountability and Transparency Commission, should set the standard for good governance. The people should be confident that there are laws and institutions that promote good governance. This law will promote the exact opposite sentiment. No-one will report anything to the Commission for fear of being victimised.

It will mean that complaints about public officials will continue to find their way to what is left of the independent media or to unregulated social media where important information on corruption and abuse of power are mixed with half-baked rumours and untruths. So, in short – no change.

With that, we thank you Honourable Members for your time and we hope that our concerns are taken into consideration and are reflected in the Committee’s Report.

Vinaka.

Presented by:

Hon. Pio Tikoduadua – NFP President

Seni Nabou – NFP Vice President

Kamal Iyer – NFP Administrator

Apenisa Vatuniveivuke – NFP Youth

Dylan Kava – NFP Youth

 

Electoral Petition Withdrawal

December 21st 2018

Joint Press release by NFP and SODELPA:

Nearly half of Fiji’s voters supported our parties in the 2018 election. This statement is issued to explain to them why we withdrew our election petition this week, after the ruling of the Court of Disputed Returns on our evidence.

The Court would not allow us to call 6 of our proposed 8 witnesses. Without that evidence, most of our case could not be proved. We would then be going into court to lose, risking a substantial order for costs.

What the Petition was about

Our petition claimed breaches of the Electoral Act by some Fiji First Party members. This included specific instances of campaigning in breach of the Electoral Act. We will now pursue these matters with the Fiji Independent Commission Against Corruption (FICAC).

We also wanted the Court to rule on the legality of the so-called “small business grants” scheme. The Fiji First government gave away more than $4.4 million to more than 4,000 people in the three weeks before the election.

Our petition also wanted to clarify the legal right of the Supervisor of Elections to re-count (or partially re-count) the contents of 27 ballot boxes, and the process he followed to verify postal ballots.

Court rules

The Electoral Act permits the Chief Justice to make rules for how the Court of Disputed Returns will operate. Two general elections have now taken place without any rules.

Where there are no rules, the High Court Rules must be followed. But those rules are not clear for electoral petitions. This is what led to yesterday’s ruling.

The 2013 Constitution says that an electoral petition must be decided in 21 days. So it was important to settle the procedure quickly. On the day we filed the Petition, we sought directions from the Court. As we know, the process was famously delayed by the 48-hour Fiji First Party “strategic workshop” when all Fiji First Party MPs avoided service of our petition.

Evidence

When they finally came to Court, the Fiji First Party argued that an electoral petition must be supported by affidavits (sworn statements). Our lawyers pointed out to the Court that this is not a requirement of the Electoral Act.

The Court ruled that only certain witnesses were allowed to give oral evidence. Based on our legal advice, we respectfully disagree with that ruling and the reasons for it. Unfortunately, the law gives us no right of appeal.

Effect of the ruling

The ruling means that there will be no clarity on the important legal issues that we raised. We urge the Chief Justice to now make proper rules for the Court of Disputed Returns. The legal process for challenging election results should be transparent and clear. Elections belong to the people. All electoral processes – including court challenges – should be clear.

Because we are commenting on legal issues and on legal advice, this will be our last official statement on the case.

The memory of “Level 9”

Fiji’s people will always remember this electoral petition, not for what was in it but for how the Fiji First Party responded to it. This may be the first time in history that a whole government would not come out of a room for two days to face a bailiff.

Authorised by:

Sitiveni L. Rabuka                         Prof. Biman Prasad

Leader of SODELPA                     Leader of NFP

Fiji more polarised than ever before

December 5, 2018: On the Occasion of the 12th year anniversary of the 2006 Military Coup

The National Federation Party says the country is more polarised than ever before 12 years after the 4thmilitary coup because of compartmentalisation of the two major ethnic groups due to racial bigotry used by the ruling Fiji First party during general elections campaign.

NFP Leader Professor Biman Prasad says the myth from Government that the 2013 Constitution promotes common and equal citizenry has been destroyed as clearly seen from the results of the recent general elections.

“We recovered from the past coups. 10 years after the first coup in May 1987, the much acclaimed 1997 Constitution was passed by the House of Representatives, Senate and the Great Council of Chiefs”.

“Six years after the May 2000 coup a genuinely multiracial Cabinet based on power-sharing was appointed but overthrown on 5thDecember 2006 by the then military commander who is now Prime Minister”.

“Commander Bainimarama and his interim military Cabinet promised to return Fiji to normality and parliamentary democracy no later than 2009 but never did. Instead, it disregarded the rule of law by trashing a Fiji Court of Appeal ruling declaring the coup illegal and for elections to be held by August 2009”.

“They re-appointed themselves, imposed Public Emergency Regulations and violated all norms associated with a democracy. They abrogated the 1997 Constitution. Their decision to formulate a new Constitution through a participatory process turned out to be a cosmetic exercise when in December 2012 they burned a draft constitution formulated by the Ghai Commission”.

“Instead they imposed the 2013 Constitution with a view to entrenching their rule”.

“12 years later, their actions, both under the military regime and the Fiji First government, have resulted in compartmentalisation of the two major ethnic groups, resulting in a polarised nation”.

“This is the painful reality facing Fiji. The only way to restore harmony and peaceful co-existence is for all leaders to work together and for government to embrace bipartisanship in Parliament”.

 Authorised by: Professor Biman Prasad, Leader of the National Federation Party