Making a Mountain Out of a Mole-Hill

By Crosbie Walsh

Bruce Hill

ABC Pacific Beat's radio journalist Bruce Hill's recent interview with former Fiji Constitution Commission chairman Prof Yash Ghai, published below, makes interesting reading, not only because of what Prof Ghai said about the police confiscating 599 copies of the draft constitution on Saturday December 22, but also because it reveals something of the emotional states of mind of both Prof Ghai and the police at that time, and because it shows how a supposedly neutral interviewer reveals his true colours. 

 A year ago Bruce Hill interviewed me and later phoned to ask how I thought the interview went. He asked whether I could detect his opinions on the Fiji situation. I clearly surprised him by saying yes. He was anti-Bainimarama government. Asked how I knew, I said because of the questions you asked and did not ask. 

Prof Yash Ghai

No one could possibly be in doubt about his feelings during the Yash Ghai interview. There was no attempt at neutrality. He provided a grossly inadequate background, did not challenge Prof Ghai on some matters that should have been questioned, and towards the end of the interview when talking about the "burning" incident he asked a string of heavy loaded leading questions 

This article does not purport to support or denounce the actions of Government, the police or Professor Ghai. It is written to correct misunderstandings and interpretations of the facts. Only when a fact is established can its causes and consequences be considered, and only then can one take up a position on the fact.

My reading of the relevant decrees and several incidents leading up to the confiscation of copies of the draft constitution (readers will remember I was privy to the PM's thoughts immediately after he has seen the commissioners, and my impression then was that there had been a fundamental breakdown of trust by both parties) tells me that the "confiscation" may have been undesirable but it was not in fact illegal. however much it added further to Prof Ghai's frustrations over recent weeks. 

There seems little doubt, from reading Prof Ghai's interview by Bruce Hill that both he and the policeman at the "burning" incident became over-excited and said and did things they would not normally do. There is little doubt also that the way Bruce Hill conducted the interview further inflamed the incident, creating what a wisecracker could say was Hill making a mountain out of a molehill. Two puns intended.

I republish the interview below with parenthesised notes in:

• italics questioning Prof Ghai's statements,
  
• underlining where I think there were errors in fact or omission, and in
  
• bold where I think Hill's questions inflamed the situation. No pun intended.

The Radio Australia Report

The outgoing chair of the Constitution Commission, Yash Ghai, has told Radio Australia Fiji police illegallyconfiscated printed copies of the draft constitution, and set some of them on fire.[the police took 599 copies of the draft . It was the galley proofs that were burnt.]

Ghai says all 600 copies of the draft document were seized from the printer three days before Xmas, on Saturday the 22nd. He also told Pacific Beat he was abused by the police officerin charge of the operation when he tried to tell them their actions were illegal. Predictablythe regime has not responded to the allegations. [Note: See my 'Nit-picking' article. The word 'predictably' was not in the ABC release.  It was added by one of the anti-government blogs and copied in error by me. ] 

Ghai told presenter Bruce Hill he was called when police arrived at the printers to confiscate the copies of the proposed new constitution.

GHAI: Well I decided that I would go to the printers and talk to the police and tell them that the copies of the draft constitution belonged to the commission and we had ordered the printing, we had done the report, therefore they should desist from confiscating those copies.

[Correction. With the presentation of the draft constitution to the President the previous day, the Commission ceased to exist and Prof Ghai was no longer a commissioner. The copies therefore belonged either to Government or to the Commission Secretariat that continues to exist until the convening of the Constituent Assembly in the second week of January, in which case Keshwa Reddy of the Secretariat had responsibility for the draft copies and not Prof Ghai.]

HILL: What was the response of the police when you went down there and remonstrated with them about this?

GHAI: Well there were 12 policemen there who had been sent to collect the boxes, and they didn't really know how to respond to me. And I said the police had always to act according to the law and the documents belonged to us.But they were a bit embarrassed and they didn't know what to say. Then after a while they rang someone and they told me that the officer in charge of the particular operation was going to come and explain to me the reasons. Well it took about half an hour, a bit more, before that officer came, and he seemed very angry with me and was quite rude to me. But I explained to him the background of the printing of the documents. He used language I can't repeat on the phone … and sort of brushed me aside and ordered the staff to, or the police to upload the boxes in the truck they had brought for this purpose.

HILL: Presumably the police don't make this decision by themselves. Did the officer in charge tell you had ordered this?

GHAI: No, he said he had his orders. I told him that I'd be trying to call the Commissioner of Police as soon as I heard that the police were at the printers, but I could not reach him. I wrote a letter when he I couldn't reach him setting out the circumstances of the printing and saying that he should instruct his police not to confiscate them. And I showed him that letter and said if he were to take the copies, I would be grateful if he could sign that letter so that … but he took it knowing that I thought it was illegal. 
[If the copies did not belong to the defunct commission, Prof Ghai was exceeding his responsibilities.]

HILL: So was this in any sense legal? Was there a warrant to take these? Was this simply as you say a confiscation of what was officially the Constitution Commission's property?

GHAI: No there were no instructions, no written instructions. In the beginning he just said this printing is illegal, and I said under what law? He said under the decree, he meant the decree which governs the process. And I said no, on the contrary, we are completely independent and we decide how we distribute our documents.Then I said he contradicted me, abused me, then I said are you a lawyer? He said no. I said well I am, and I've been working under the decree. And then it seemed that it was a bit pointless, so then I stopped trying to persuade him.

[Correction. There are two decrees on the 'process'. The first, passed in July, set up the Commission and defined its roles. The second, passed on 31 October, amended the earlier decree and expressly forbade the Commission from distributing the draft prior to its receipt by the Constituent Assembly. The amendment was a result of increasing Government concerns that the Commission had not maintained its neutrality as required in the original decree. I shall address these concerns in a later article. I am surprised that a lawyer of Prof Ghai's calibre chose deliberately to not distinguish between the two decrees and used the original one to claim ownership of the draft copies.]

HILL: Now I understand that there was another incident just on the tail end of this in which some shredded copies of the final document the printers had used for proofing, were actually piled in front of you, soaked in kerosene and set on fire? [The general impression is of multiple copies of the draft going up in smoke when only galley proofs, that would have no further use unless a further reprint was required, were involved.]

GHAI: Yes exactly and I was saying why are you setting it on fire? You have shredded it, nobody can put it together or you can just take it with you and you can cut up a bit further, but they insisted on, they brought a tin of kerosene and spread all the papers, brought some stick with a flame at the end and started the burning of it, and every few minutes or seconds they would come and put another dose of kerosene, so the flames would rise up again until everything was reduced to ashes.

HILL: As you were watching this draft constitution that you've been working on for months, what was going through your mind?

GHAI: Well I was of courseextremely upset and I thought that this was some sort of symbolic act on the part of whoever gave the orders to tell me that this is how we will treat your work. And I felt extremely sorry, not for myself, but for the people of Fiji,if this was indeed an order from the governmentthen it shows such contempt for our work, and in turn contempt for the people who had come out in their thousands and thousands to give us their views, participate in the process. And I felt really not just a betrayal, I just felt will Fiji ever have a democratic constitution. 
[The copy presented to the President the day before was well received. Prof Ghai had no reason to assume Government was behind the burning; that the act was anything more than at act of frustration and annoyance by one police officer, possibly in response to his own emotional demeanour, or that the work of the Commission was held in contempt. He knew the draft would be subject to amendment by a five-person Tribunal (that will include two international experts) as permitted under the original decree before it is presented to the Constituent Assembly.]

HILL: Given that this has happened, what do you feel now about the government's publicly stated commitment to return Fiji to democracy in a fair and transparent process? [The event is of little national consequence and will have no impact on the previously-stated requirements of the two decrees or the Constituent Assembly.]

GHAI: Well I hope that the government will ensure that the Constituent Assembly that it proposes to establish will really be representative of the people.

HILL: Given however that they quite literally made the constitution go up in flames in front of you, can you really have confidence that this government will actually do that?
[Hyperbole! That's telling them! "Quite literally" the constitution did not go up in flames?]

GHAI: Well I have to say this is very discouraging. 
[An understandable emotional, but not particularly reliable,  reaction to Hill's prompting.]

HILL: Do we know where the actual physical printed copies of the draft constitution were actually taken away to by the police?

GHAI: Well they didn't tell me. I heard some people say it will go to the Attorney General's office, some saying it'll go to the police station. And I had wanted to know because I had this letter they had signed saying they were taking it, but they won't tell me where it was to be taken. 

HILL: Given that this whole process is not your process, you were the chair of the commission, but it's very much everyone's process, a lot of people and groups in Fiji took part in this. What message do you think the people of Fiji should take from what's happened?

GHAI: Well I don't know, I think they should continue to take part in the remaining stages of the process, which is the next one is convening of the Constituent Assembly. The government has said those who wish to be on the assembly should express their interest through a letter to the PM's office. And I believe that people should participate in the process despite their scepticism. 
[He must know they will participate and that only some are sceptical.]

HILL: Well given what you've just said they would have a right to be sceptical wouldn't they?

GHAI:Well they indeed have a right to be, [See above, ditto]but I think institutions like this one has to do one's best to participate. I think people should participate even though they have reservations about the process.

HILL: You've done this sort of thing all around the world, you've been involved in similar activities in Kenya, in Cambodia, you've guest lectured in Sweden and America and all over the world. Have you ever faced a situation like this where something this bad has happened and you've been personally abused by a police officer? 
[As bad as Cambodia? Didn't he walk out of that process? Verbal abuse? Unpleasant but not really threatening.]
GHAI: No not really. I've had hard times in many places, but not quite to this extent, and I have never been in a process where there has beensuch an attempt to hide the recommendations of a body which was setup by this very government, which was encouraged to have a completely participatory process, which was assured they'll be completely independent. 
 [Not hide. Delay public participation until the Tribunal has commented and passed the draft to the Assembly where it will then be fully discussed in open forum.]
And if this is the draft to be discussed by the Constituent Assembly, I would have thought that in keeping with good process people should have had a chance to read and discuss this, which indeed was what we had agreed, and that was what was in the decree which started the process.

[This is only partly true. The original decree (Part 3) stipulated that the Commission's draft would, after presentation to the President, be considered by a Tribunal (see above) and, if necessary, referred back to the President, before being referred to the Assembly. Recommended changes by the Assembly must then be referred back to the President and Tribunal for approval before final adoption by the Assembly. It was hoped that most Assembly decisions would be agreed to my consensus. Prof Ghai casts an unfair light on this part of the process to which he agreed in taking up his appointment.

One suspects Prof Ghai's frustration is due to his not being able to distribute the draft publicly after it had been presented to the President on Friday 21 December. But he would have know this was prohibited under the amended 31 October decre,  with which he disagreed but  had legally to heed.]

HILL: Is there anything that we haven't touched on in this interview that you'd like to mention about what's happened and what it means for Fiji?

GHAI: Fiji cannot go on like this. Fiji has to return to some normality, but above all it has to make decisions about the future, about working and living together, creating national unity around certain common values, which are sketched out in great detail in the draft constitution, and which we believe is what people wanted. This is what we gathered from our discussions with them. I'd very much like to be able to encourage all the sides to work together. This is not a question of party politics, this is a question of the national interests and a constitution has to be a consensus document, otherwise it fails to perform its essential function of a kind of social contract. I have done the best I could, I'm an outsider, I was privileged to be asked to chair it. I was able to look at all points of view with some objectivity, and to suggest a compromise, not even a compromise really because I think it's in the interests of all the groups that institutions, procedures, values we have recommended should become the foundation of Fiji. 
[The Commission virtually ignored the RFMF submission and may have gone too far on consensus but that will have to be the subject of a later article.]