# YASH GHAI: EMOTION BEFORE REASON

Professor Yash Ghai (Photo:UN)

Like many people, Grubsheet has been perplexed by the behavior of the recently-departed Chairman of the Constitutional Commission, Professor Yash Ghai. Almost as soon as he left the country after handing his Draft Constitution to the President, Professor Ghai launched an extraordinary attack on the Fijian authorities. He claimed that the police had illegally seized 600 copies of the Draft Constitution from the printers and had burnt some documents in front of him in an act of willful destruction. It allegedly happened when the police intervened to prevent the distribution of the draft that Professor Ghai had printed without the authority of the Government and – as we now know -without the knowledge of at least one of his fellow Commissioners.

Grubsheet was stunned to hear Professor Ghai tell Radio Australia that the confiscating police had used kerosene to set fire to some of the proofs and had showed contempt for both the constitutional process and the Fijian people. Our immediate reaction was to accept without question the account given by such an eminent global authority and to wring our hands with despair about the behavior of the police. It took a couple of days to discover that the story wasn’t quite the way it had been portrayed, and especially by the anti government blogs. Elements of the mainstream international media have also been guilty of misrepresenting the story. The Australian newspaper carried an article by its Asia-Pacific Editor, Rowan Callick, that was headlined “Fiji cops torch constitution draft”. It said the police had seized and burnt copies of the Draft Constitution. The story is wrong. It didn’t happen as reported. And yet such accounts are bound to trigger uproar in countries such as Australia and fuel their hardline stance on Fiji.

The “burning document”, according to Coup 4.5

Certainly, no copy of the actual Draft Constitution was set alight. What was burnt were some uncorrected printer’s proofs that had been shredded – yes, cut up into little pieces – and that the police feared may have been reconstituted had they not been destroyed. Their orders, after all, were to secure the document and prevent its dissemination. The anti-government website, Coup 4.5, has published photographs of what it claims to be the actual fire itself, a very small affair that even it says lends weight to the notion that this was a printer’s proof, not the actual draft. It also shows a distressed Yash Ghai being comforted by one of his staff.

The truth is that all copies of the Draft Constitution survive and are now under lock and key. As the Government originally intended, they will be handed over to the proper authority when the time comes – the yet to be chosen Chair of the Constituent Assembly. It is then that public discussion on the contents will begin.

All along, it’s been the Government’s position that Professor Ghai’s duty – when he and his team had completed the Constitution – was to formally hand it to the President. Indeed, the relevant decree states that the Professor’s commission as Chair ended the moment that handover occurred at Government House on Friday, December 21st. So a significant question arises. What was Yash Ghai doing presiding over the printing of almost 600 copies a day later on Saturday December 22nd? He no longer had any legal authority to do so. He was in breach of the law. And yet it was Professor Ghai who accused the Police of acting illegally when he gave his Radio Australia interview six days later. By now he was safely out of Fiji and intent on what looks very much like a petulant act of revenge – pointing a finger of blame at the police when it was he who was actually in the wrong.

Professor Ghai “in tears” at the police action (photo:Coup 4.5)

We now know from his fellow Commissioner, Professor Satendra Nandan, that Professor Ghai had the draft copies printed without informing him. In other words, it was a unilateral decision of the Chairman’s to make the document public, not the Commission’s as a whole. This raises some serious questions about Yash Ghai’s conduct. First, he defies the law by continuing to perform his duties after his job has formally concluded.  Then he secretly presides over the unauthorized printing of 600 draft copies with the intention of disseminating them to selected members of the public in defiance of the Government’s wishes and the process it had set in train.

Professor Ghai keeps saying that the Fijian people have a right to see what’s in the Draft Constitution, with the less than subtle implication that the Government is intent on suppressing it. Yet the Government says it wants the Constituent Assembly – which will be broadly representative of the Fijian people – to be the vehicle to release the document, not the consultant whose sole task was to formulate it and then get out of the way.

Incredibly, Professor Ghai then appears to have taken it upon himself to leak the Draft Constitution and bastardise the entire process. The first leak – from an unnamed source – was reportedly sent by email to a string of recipients including Fijileaks – an anti-government website operated by Victor Lal, a former Fijian journalist now resident in Britain. Lal claimed a world scoop when he released the document and sparked widespread media and cyber debate in Fiji and the Fijian diaspora. But then came another posting on Fijileaks declaring that what was originally published wasn’t the final version handed to the President after all. Now it was publishing the real Draft Constitution – containing some minor amendments – and it was being released by none other than the Great Man himself under his own name.

The actual document plus the explanatory notes were accompanied by a self-serving statement from Professor Ghai that tried to justify his extraordinary behavior. It was notable for being riddled with the words “I” and “me” as if it was his Constitution, not the Commission’s, and certainly not the Fijian People’s. The whole thing reeked of hubris. And like his aforementioned interview with Radio Australia, the statement also carried a distinct tone of petulance. The Professor said he had taken it upon himself to release the Draft Constitution because the Government had refused to do so at the time of his choosing. So much for due process.

Some of the police who seized the draft copies (Photo:Coup 4.5)

It now transpires that there’s a reason that all this showed up on Fijileaks. Victor Lal and Professor Ghai have known each other for years. Lal – who is based in Oxford and nowadays passes himself off as an Oxford academic – wrote a treatise on the Indian diaspora that included Indians living in Kenya, where Professor Ghai was born. According to a source who knows both men, the Professor helped Lal with his work and the two men have remained friends ever since. So much for a journalistic scoop. Leaking the Draft Constitution was as simple as picking up the phone to a mate.

For its part, the Government appears to have been no more than mildly annoyed that the ordered process it envisaged has been breached. It was certainly only a fraction of the annoyance felt when the actual document passed over the desks of senior government figures in the days before Christmas and they began to read the Commission’s work. Because it’s a deeply flawed document on several fronts and none more so than its failure to establish parliament – the people’s elected representatives – as the supreme and sole authority in the new Fijian democracy that will come into being next year.

Now that it’s been unilaterally released to the world by its principal author, we know that the Draft Constitution provides for 71 elected individuals in the new national Parliament plus another 144 individuals in what’s called the National People’s Assembly, which includes the President, the Prime Minister and cabinet ministers. Its job is to meet once a year to discuss matters of national interest and make recommendations to the parliament. Strangely, this body gets to choose the President, not the parliament. Seventy two members  of the National People’s Assembly are unelected members of  “civil society groups” (read NGOs). Then we have the restoration of another group of individuals in the form of the Great Council of Chiefs who are also unelected, though without their previous political power. The GCC was abolished by the Bainimarama Government specifically to transfer power to ordinary people in the vanua and endow them with the lease proceeds that used to go to the chiefs. So you can be certain that it’s none too pleased to see new life being breathed into the notion of inherited privilege.

Yet the overwhelming reason that the Ghai blueprint is causing such consternation in official circles is because it is such a patently flawed formula for achieving genuine democracy. If you dissect its provisions, Fiji would wind up with an elite of non-elected representatives and hereditary chiefs whose numbers would far exceed those directly chosen by the people. And what – pray tell – is democratic about that? As Grubsheet has already told Victor Lal in a scathing missive, this might be OK for the Kumbaya crowd of NGOs and tenured academics who appear to make up the Ghai glee club – none of whom have been elected to anything either – but the Fijian people deserve better.

As it happens, most of the Government’s critics have some very strange attitudes towards democracy. They oppose Frank Bainimarama for smashing the racist paradigm that gave the votes of  i’Taukei more weight than the votes of other Fijians in previous parliaments. Now they object to him insisting that an elected parliament based on equal votes of equal value be the supreme and sole authority in the country. In other words, a genuine democracy in which the people’s representatives have the final say. As Grubsheet also fumed to Victor Lal:  Is is too much to expect that you might give this a fleeting thought next time you rail against the “dictator”?

Yash Ghai seems to regard himself as some kind of latter day Moses coming down from the Mount with his opus etched in stone. How else to explain his insistence that a two-thirds majority vote be required in the upcoming Constituent Assembly for any clause to be overturned. Yet instead of exiting Fiji gracefully and leaving Fijians to work on their Constitution in their own time, he staged a world-class tantrum because the Bainimarama Government doesn’t share his own high opinion of himself. The net result is an atmosphere of crisis when there should have been calm and which arguably makes the formulation of the next phase of constitution building – the Constituent Assembly – that much harder.

Why was Yash Ghai so determined to get his own way, to bring the public consultations forward when they were going to happen anyway? The Professor keeps talking about the public’s right to know. Yet an old friend believes that there were clearly other, more complex forces at play. He thinks that when it comes to the Draft Constitution and his handling of the events around it, Yash Ghai’s emotions may well have got in the way of his better judgment.

Among some valuable and hitherto unpublicised insights, this friend – who naturally wishes to remain anonymous – points out that the Professor has had a much longer association with Fiji than most people realise. He was an advisor to the Labour/ National Federation Party Coalition that won the 1999 election and, as such, had plenty of experience of Fijian politics. And he also had plenty of local contacts, ranging across the political spectrum from Akuila Yabaki at the Citizen’s Constitutional Forum to Attorney-General Aiyaz Sayed -Khaiyum. Yash Ghai supervised a younger Khaiyum’s masters thesis at the University of Hong Kong and it was the AG who eventually invited him to chair the Constitutional Commission. It’s a decision he now regrets.

When he arrived in the country – according to this friend – Yash Ghai had a distinctly romantic notion about finally being able to resolve the intractable “Fiji Problem”. Indeed, he apparently came to believe – in the words of this person – that he was “just as big a saviour for the Fijian people as Frank Bainimarama”. With his vast experience in greater world trouble spots than Fiji such as Somalia , Professor Ghai can perhaps be forgiven for being overly optimistic. But he clearly saw himself as far more than a run-of-the-mill international consultant paid to do a job. He seems to have regarded himself as an active peacemaker, someone capable of reconciling the various races and political factions and setting them on the path to a glorious future under his new prescription for a workable democracy.

According to his friend, Professor Ghai was stung when he arrived in Fiji to find that far from being universally welcomed, he was pilloried on anti-government blogs as a stooge of the Bainimarama Government and a lap dog of Aiyaz Sayed-Khaiyum. So he consciously set about to correct that assumption by actively courting those elements known to oppose the Government. It was a well-meaning but ultimately misguided attempt to be even handed because those anti-government elements were all too keen to exploit the opportunity for their own purposes. This is what the military Land Force Commander, Colonel Mosese Tikoitoga, means when he refers to Yash Ghai “ falling in with the wrong crowd”. The eventual outcome – according to his friend – was that Yash Ghai got caught in the middle. He alienated the Government by actively pursuing some of these associations. It began to get reports of him fraternising socially with some of its most prominent opponents. And eventually, the relationship broke down altogether when the Government discovered that Professor Ghai had secretly engaged the deposed vice president, Ratu Joni Madraiwiwi, as a paid consultant.

It is on the public record that the Government forced Yash Ghai to back down and terminate the Commission’s association with Ratu Joni. What hasn’t been disclosed – according to our source – is that the Professor canvassed resigning as Chair in response but was talked out of it by his local friends and associates. It suited nobody for him to leave at the eleventh hour, least of all his new anti-government companions. So the Commission defused the crisis itself by eschewing Ratu Joni’s services and threw itself into the task of presenting Fiji with what Ghai termed its “Christmas present” – a new Draft Constitution.

Regrettably, the standoff left a bitter legacy on both sides that never healed. Ghai appears to have become convinced that Bainimarama simply couldn’t be trusted to uphold democracy and Bainimarama became convinced that Ghai was a turncoat who’d been irredeemably seduced by the Government’s opponents. It’s against this sorry backdrop that Yash Ghai seems to have decided to “go rogue”, to thumb his nose at due process in the form of the Government’s timetable and strike out on his own. He simply dumped his blueprint for the future directly onto the cyber pavement off the back of Victor Lal’s truck.

How history will judge this unfortunate episode remains to be seen. But there’s yet another disclosure from the Professor’s friend that gives a telling insight into the depth of Yash Ghai’s bitterness. It’s not professional but personal. After a long career of playing constitutional midwife to a string of developing countries, the scholarly Professor had developed a deep love of Fiji and its people. At one stage, he had plans to eventually settle here and build a house at Vuda Point, living out his retirement under the Pacific sun. Alas, it seems, that plan has been abandoned.

As his aircraft thundered down the runway at Nadi Airport in the week before Christmas, what would have been going through Yash Ghai’s mind? Undoubtedly the same career-long determination to preserve his international reputation. By all accounts, it means more to him than anything else. Yet he was also clearly consumed with anger and a burning conviction that he was right and the Government was wrong. How else to explain why he would so comprehensively put that hard-won reputation at risk with a clutch of inexplicable lapses of judgment when he reached his destination? First, he told a radio interviewer that 600 copies of the Draft Constitution had been illegally seized and some of the proofs burnt when the unlawful act was his. Then, he took it upon himself to dump “his” Draft Constitution into the public arena – in the form of a leak to a minor anti-government website – in defiance of the wishes of his client, the Fijian Government. It all smacks of emotion triumphing over reason. And a legacy in the form of a Draft Constitution that the Government is deeply disenchanted with because it isn’t as genuinely democratic as it should be and requires major revision by the Constituent Assembly in the weeks ahead.