Saturday, July 28, 2007

Mahogany in Fiji-Growing Weary?

Fiji Buzz article uncovers the depth of in-grown problems surrounding the issue of Mahogany plantations in Fiji.

This is the excerpt of Fiji Buzz article:

Exposé: Fiji's Mahogany Forests
Written by Wendell Archibald

Mahogany Fiji

[Right Image: Typical Mahogany Forest in Fiji]

Exotic forests are not a new phenomenon and in the parts of the world where they do exist forest harvesting scarcely gives rise to difficulty.

This is not the case in Fiji. There are about 40,000 hectares of native land in Fiji which has been planted in mahogany. These forests are the result of an afforestation initiative led by the British Colonial government in the 1950's.

In the course of implementing the scheme the Colonial government put leasing arrangements in place over the native land concerned. The leases were to the government for 99 year period at a rental of sixpence per acre (13c per hectare).

The land rentals were of course adjusted periodically for inflation so that by the new millennium the return to the land owners was in the region of $2.00 per hectare.


In a modern tree or timber “crop lease” provisions exist whereby the owners of the land are to be paid “stumpage” when time arrives for crop harvest. The stumpage payments are normally calculated on the basis of the metric volume of timber taken from each tree stump.

Some leases, put in place by large public companies, have been known to contain provisions for stumpage to be paid in advance of the harvest date. In these cases the basis for payment is a periodic assessment made as to the current value of the trees growing in the ground. The “mahogany leases” by the Fijian landowners to Government contained no such provisions.

The Resource Grab

As harvest time approached, the current value of the mahogany tree crop became evident. A row of enormous proportions then began to fester between the landowners and the Government.

The row had all the hallmarks of a shameless struggle to obtain ownership and control of an economic resource. Neither side has emerged from the argument with credit.

On the one hand the land owners claimed the reward from the mahogany harvest was theirs. Government's position was that they owned the leases and therefore the right to the crop.

Despite the existence of locally owned and operated wood processing capacity both sides contended that they needed an overseas investor to help them maximise the value of the timber. Both sides then proceeded to negotiate with interested overseas parties.

By the 1999 elections the Rabuka Government had established a Government owned entity called Fiji Hardwood Corporation to manage its “mahogany interests.” George Speight, who had been appointed its Chairman, had begun to make firm 'Investor” arrangements with an American company. Something called “Fiji Mahogany Unit Trust” was also registered overseas but locally its details were never revealed.

It is well documented how the Chaudhary Government following the 1999 elections queered the pitch by contracting in a British “investor.” In some quarters it was openly stated that the disruption so caused to George Speight's plans formed the real reason for the coup of 19 May 2000.

The Suva headquarters of Hardwood Corporation were razed to the ground by fire during the course of the 2000 coup.

The Qarase Government

The Qarase Government came to effective power in July 2000, as the interim government appointed by the Commander of the Fiji Military Force. One of the persons appointed was Apisai Tora who took office as the Minister of Agriculture.

The appointment was surprising in that on 19 May 2000 it was Apisai Tora who had led the protest march which preceeded the overthrow of the Chaudhary government. He was also well known as one the protagonists and architects of the 1987 coup led by Sitiveni Rabuka.

With an election scheduled for September 2001 the new government which was later to be reformed as the “SDL party” immediately announced a “blueprint” whereby soft loans were to be provided to indigenous Fijians for the formation of businesses.

With the benefit of hindsight it now seems that funds were needed by the interim government for electioneering purposes and direct handouts designed to curry favour with the indigeneous Fijian electorate.

When the Fiji Development Bank proved slow to respond Tora immediately proceeded to bail out the Treasury by using funds at the disposal of the Department of Agriculture for such purposes. The move was a resounding success resulting in the September 2001 election of SDL to the treasury benches under the leadership of Qarase.

Some 63 months after the event Tora's permanent secretary Peniasi Kunatuba was jailed for his part in the affair. Tora and his cohorts have never been charged.

The Fiji Mahogany Act

In its first term of office the Qarase led government revitalised Fiji Hardwood Corporation by injecting $3.5 million (FJD) into the company as working capital, installing a new board of its own choosing and an ex-patriate Chief Executive Officer.

A former Chairman of Fiji Development Bank (FDB) numbered among the directors. He used his influence with FDB to obtain finance for the acquisition of the wood-working machinery of a small/medium sized wood processing plant which the High Court in Suva had wound up in April 2003.

By 15 July 2003 the Government had introduced a bill called the 'Fiji Mahogany Act' into Parliament. It was passed into law on 6th November 2003.

The preamble to the Act states it is :

“An act to make provision for the development of the mahogany industry in Fiji including harvesting and processing to allow landowners participation in the industry and for related matters”

The text of the Act does not reveal the the manner by which its objectives are to be achieved. The real purpose of the Act seems to be contained in section 3 which is an empowering provision allowing Government to inject public funds into Hardwood Corporation.

The Fiji Mahogany Trust

Otherwise section 4, and the remainder of the Act concerns the establishment of a trust called the “Fiji Mahogany Trust”
A peculiarity is that in law, there are three elements which must be present before a trust can be said to exist. These are that there must be

1. at least one beneficiary (or cestuis que trust);
2. some defined property which is the subject of the trust; and
3. a trustee who is obliged to deal with the property for the benefit of the cestuis que trust.

With the Fiji Mahogany Trust none of the required elements of a trust are able to be discerned..

Processing in the West

Shortly after the Fiji Mahogany Act was passed the wood processing plant which had been purchased with FDB assistance was moved westwards on Viti Levu from Suva to Lautoka. There it began processing mahogany supplied by Fiji Hardwood Corporation.

In a short space of time the company was achieving exports of containerised dressed mahogany timber. According to certain members of the company's staff 6 containers were exported every week.

On the basis of these reports Fiji Hardwood Corporation should have been enjoying an income stream of at least $12 million (FJD) annually. In reality it ran out of funds before the end of 2005.

A new CEO for Hardwood Corporation was brought in mid 2006. He found the root cause of the company's problems to be “transfer pricing".

That is the timber exported was returning $400 (FJD) per cubic metre whereas the costs of production were far in excess of that amount. The profits on sales in the country of destination were not of course being repatriated to Fiji Hardwood Corporation.

The Police were informed but the previous holder of the CEO's office fled the country. An investigation was reported to have been commenced into the activities of the board members and staff of Hardwood Corporation who were involved.

When the health of the new CEO deteriorated 6 weeks ago the board of Fiji Hardwood Corporation took the opportunity to terminate his appointment (and presumably the Police enquiry).

In its 2006 budget the Qarase government voted that a further $5 million FJD of Public funds be injected into Fiji Hardwood Corporation.

RESOURCES: Fiji Mahogany Act 2003

Mahogany plantations misappropriation involve NLTB and has a connection with Qarase and the mysterious bail out of Fiji Hardwoods Corporation with funds sourced from Fiji Development Bank according to a Fiji Times article.

This is the excerpt:

$5.8m granted in mahogany bailout

Friday, December 22, 2006

FIJI Hardwood Corporation was granted $5.8million by the Laisenia Qarase-led government to bail itself out of debt.

This was confirmed by Fiji Hardwood chairman Winston Thompson yesterday.

He said the money was received from the Fiji Development Bank (FDB).

"Earlier arrangements were made by the government with the FDB about the issue and that is where it is at the moment," said Mr Thompson.

He said the corporation received the fund weeks ago and hoped to change its image.

Parliament had approved a government request to guarantee a $5.8million loan by Fiji Hardwood.

Ousted finance minister Ratu Jone Kubuabola approved the loan in February as the company experienced cash flow difficulty. In 2003, the government bailed the company with a $7million loan from Fiji National Provident Fund.

Mr Thompson said he was aware of roadblocks in Tailevu by two landowning units claiming compensation.

The mataqali Rara of Naimasimasi Village in Tailevu wants back the land because according to them, it was reserved for them by their forefathers.

Clan spokesman Jovilisi Kedrayate said Fiji Hardwood needed to return 38 acres of land where the company planted mahogany without permission.

Lawyer Tevita Fa said his clients would not change their stand on the decision.

The land is part of an 86-acre spread of which Fiji Hardwood has a lease on 48 acres.

All this talk about Mahogany is perhaps an extension to the infamous Wall Street Journal article published on September 13th 2000, regarding Mahogany negotiations involving the pre 2000 coup dealings with George Speight, the former Executive of Fiji Hardwood Corporation and subsequent convicted coup leader.

This is an excerpt:

Fiji Mahogany Incites Lawsuits,
Resource Battle in Troubled Region

September 13, 2000

SUVA, Fiji --

On a mountainside deep in the jungle of Viti Levu, Fiji's principal island, Alisi Marama digs for one of the world's most coveted commodities.

"This is what everyone is fighting over," says the 52-year-old prawn farmer's wife, holding up a mahogany sapling. "We never knew these trees were worth so much money."

Fijians call them "white people's trees." On plantations started by the British, the tall, gray trunks rise from the jungle in neatly planted rows, covering more than 80,000 acres. To logging companies, they're "king mahogany," used in everything from boardroom paneling and yacht decks to furniture. Through a strange confluence of history, geography and an environmental movement thousands of miles away, Fiji's mahogany farms, believed to be the world's largest, have placed this remote archipelago at the center of a global business storm.

What began as a bidding competition for timber rights between a U.S. company and a British firm has come to involve government officials from the two countries, as well as Price Waterhouse Coopers, a Seattle entrepreneur and a former timber executive named George Speight, who staged a coup against Fiji's government in May. Billions of dollars are at stake and lawsuits are flying from Suva to Seattle.

Waves of Unrest

The coup, which battered the South Pacific's most promising economy and set off waves of unrest throughout the region, also has links to mahogany. Weeks before the attack, protests were mounting against the government for its decision to accept the British company's lower bid and for its treatment of landowners. Leading the charge was Mr. Speight, who had been ousted by the government from a top timber job and who had received consulting payments from the U.S. company that lost the bid. Three days before he stormed Fiji's Parliament, the coup leader took out a dramatic advertisement in a local newspaper stating that he was "not on the take" from the U.S. company.

Fijian police have set up a special unit to investigate the mahogany deal, and a former police chief, Isikia Savua, said last week that there are "possibilities of linkages" between the mahogany and the coup. Whatever the investigation reveals, Fiji's mahogany trees are likely to kindle even more unrest, as tribal chiefs, giant timber companies, government agencies and even rural farmers begin staking claims.

"We have this asset that people learn has tremendous value," says Charlie Walker, a timber executive and former Fijian congressman and diplomat. "I'm afraid that unless we get a solution that's agreeable to Fijians, it's going to create more instability."

Other issues have contributed to regional turmoil, such as land rights, ethnic strife and widespread corruption, but at the heart of the violence are battles over natural resources such as oil, natural gas, gold and timber. A struggle between rival tribes over land in the Solomon Islands has sparked an attempted coup and widespread killings and kidnappings. Papua New Guinea continues to fight with Bougainville separatists over minerals, while the French are battling native Melanesians in New Caledonia over nickel. As colonial influence and financial aid recedes in the region, Fiji's lucrative mahogany trees are becoming the next explosive commodity.

In the early 1900s, as part of a global forestry experiment, the British government shipped a bundle of mahogany seedlings to Fiji from the rain forests of British Honduras, which is now Belize. The aim was to expand the economy of the Britain outpost in the South Pacific and create a new source of mahogany for British furniture makers. The seedlings flourished, and in the 1960s the Fiji government started regular plantings to ensure a steady crop.

The trees grew largely unnoticed until the late 1990s, when several factors put them on the world stage. Most of the world's mahogany, sold mainly to the U.S. and Britain, comes from the rain forests of South America, primarily Brazil. With overlogging and growing pressure from the environmental movement, timber companies were suddenly forced to look for "green" alternatives.

Enter Fiji. More than 2,000 miles from the nearest continent, Australia, the group of 300 tropical islands is far removed from the insects that plague mahogany in other countries, specifically a type of shoot borer that cripples young trees. With its steamy climate and volcanic soil, Fiji is the only place where mahogany plantations have taken hold on such a large scale. Analysts say the country could supply up to two-thirds of world demand within the next 10 years, yielding between $50 million and $200 million a year in revenue and offering a new source of growth for the tourism-based economy. Since the trees grow on plantations, rather than wild in forests, they're considered ecologically correct.

In 1998, as overseas interest grew, the government hired Price Waterhouse -- now PricewaterhouseCoopers -- to search for a foreign logging partner. Bidders were asked to take a stake in the state-owned mahogany company, Fiji Hardwood Corp., and to help build the roads, sawmills and sanding and furniture plants needed to process the wood. Within weeks, Price Waterhouse had narrowed a list of six candidates to two finalists: Britain's Commonwealth Development Corp. and the American-led Timber Resource Management.

CDC, an investment company owned by the British government, offered $68 million for the stake and certain cutting rights -- a sum many in the Fijian government considered far too low. TRM, a newly created consortium led by Marshall W. Pettit, a businessman based in Bellevue, Wash., entered a bid of $110 million. The deal involved a complicated bond offering, a Cayman Islands holding company and millions of dollars in banking and transaction fees. TRM is 65%-owned by Washington-based Anglo-Pacific Resources, which is controlled by Mr. Pettit, a financier who has interests in real estate and natural-resource projects. The remainder of TRM is held by various New Zealand and Australian timber companies.

'We Were Terminated'

After weeks of analysis, Price Waterhouse recommended CDC, saying the company was more established than TRM and would provide more direct benefits to Fiji. For reasons still under dispute, the government challenged the recommendation. In a crowded conference room in February 1999, government ministers cut short Price Waterhouse's presentation and fired the company, saying they could handle the mahogany deal themselves.

"We were terminated at the meeting," says Gary Butler, Price Waterhouse's lead manager on the project.

With the government taking over the deal, a new player emerged in the talks: Mr. Speight. A Fijian insurance executive with a flair for sales, an M.B.A. from Andrews University in Michigan and close ties to the government, Mr. Speight was chairman of Fiji Hardwood Corp. and a leading member of the government's mahogany steering committee. At the meeting with Price Waterhouse, Mr. Speight led the attack on CDC's proposal and charged that the bid "didn't meet the government's requirements."

Another Interest

Mr. Speight, however, had another interest. In the spring of 1999, just after the February meeting, Anglo-Pacific Funding wired two payments of $5,000 each to Mr. Speight's Australian bank account, according to bank statements. Anglo-Pacific Funding is also controlled by Mr. Pettit. When the payments were disclosed on a Fiji television program just before the coup this past May, the news unleashed allegations of influence peddling and corruption in Fiji's press.

Both Mr. Pettit and Mr. Speight confirm the payments, but say they weren't related to the mahogany deal. Mr. Pettit says the fees were for office space and insurance-consulting work that Mr. Speight performed for Anglo-Pacific in 1997 and 1998 -- well before the mahogany talks began -- as part of a pine-logging deal that was later canceled. Mr. Pettit says he thought the payments were being made to an insurance company managed by Mr. Speight, not to Mr. Speight's personal account. Mr. Pettit adds that he knew nothing about Mr. Speight's coup, and that allegations of influence peddling were manufactured by Mr. Speight's political rivals.

"George Speight didn't do us any favors," Mr. Pettit says. He notes that the association with Mr. Speight worked against TRM during negotiations, "since other people involved were in effect constantly inferring that Mr. Speight was carrying our banner."

In an advertisement in a Fiji newspaper just three days before the coup, Mr. Speight stated that he was "not on the take" from TRM and that he had acted during the mahogany negotiations "in a responsible manner with absolute integrity." Neither Mr. Speight nor his attorney could be reached for comment on the mahogany deal.

Timber Talks Reopened

Mr. Speight's influence, however, was overshadowed by larger events in May 1999, when Fiji elected a new government and Mr. Speight was swept out of his timber positions. The new government, led by Prime Minister Mahendra Chaudhry, launched a widespread investigation into fraud and corruption and reopened the mahogany talks. In July 1999, Mr. Chaudhry settled on CDC, stating in a letter to CDC that the British company was the "preferred bidder" and that the government "wishes to proceed to complete the negotiations." The letter's existence, however, didn't emerge until months later.

TRM, meanwhile, continued to pursue its bid, having spent more than $2 million on legal fees and other deal-related costs. Mr. Pettit and Fahnestock & Co., a New York-based securities firm that was organizing the bond involved in TRM's bid, arranged to fly four Fijian government ministers to New York last September in a final push to promote the bid. Since the Foreign Corrupt Practices Act prevented TRM from paying for the trip, the U.S. Trade and Development Agency agreed to be the sponsor. The agency paid $25,000 in air fare, hotel and travel costs for the ministers.

Months after the delegation returned home, TRM learned of the July 1999 letter and the Fijian government's commitment to CDC. Mr. Pettit and the U.S. ambassador in Fiji, Osman Siddique, were furious, charging that the Fiji government had accepted the trip in bad faith and wasted U.S. taxpayers's money. "We feel thoroughly taken advantage of," Mr. Pettit says.

This past April, Mr. Siddique charged into Prime Minister Chaudhry's office and said: "No more excuses. You can do what you want with your f---ing forest."

Mr. Siddique, a travel-agency owner from Virginia, confirms the account and adds that he was simply supporting the commercial interests of a U.S. company.

'A Slap in the Face'

As the deal slipped away, TRM turned to lawsuits. The company has filed nine suits in Fiji -- four against a former consultant and a former equity holder, two against the government and three against various Fiji newspapers and newspaper columnists, because of what Mr. Pettit says were libelous and false reports about TRM and the company's bid. The reports, earlier this year, questioned the reputation of TRM and detailed the payments that TRM would receive from the mahogany deal in addition to conventional revenue.

"All I want is an apology," says Mr. Pettit, adding: "We were trying to do something good for the people of Fiji, and all we got were lies and a slap in the face."

Mr. Speight has his own legal troubles. Imprisoned on an island off Suva, he faces charges of treason for leading the May coup, in which he and 16 other rebels took the entire government hostage and then turned the country over to the military.

With Fiji's economy in crisis, the mahogany trees are becoming even more important -- and controversial. Entomologists at a forestry station outside Suva have received reports of a population of mahogany shoot borers on the island of Espiritu Santo, about 900 miles away.

Meanwhile, Fiji landowners are staging protests in a bid to take back the trees -- which are growing on land largely owned by local tribes but leased by the government -- while several government agencies are also staking claims. TRM and CDC both vow to continue fighting for a deal, and several new competitors from Europe and Canada have also approached the government and landowners.

"We took care of these trees all our lives," says Mrs. Marama, standing at the edge of a lush mahogany plantation on land owned by her tribe. "Now we want something in return."

Write to Robert Frank at

The negotiations for the same Mahogany plantations continued after the 2000 coup with Interim Prime Minister playing a leading role; which landowners feel weary of, as an article in Pacific Magazine outlines.

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Friday, July 27, 2007

Fiji Media Resists Oversight.

Following up
on an earlier S.i.F.M post on Fiji Media; the proposed inquiry into Fiji's media as reported by Stuff article, was scuttled by a combination of factors which include clash of schedules for the New Zealand consultant reported by a Fiji Times article corroborated by Dominion Post and predictable belligerence by the cartel of leading media outlets in Fiji.

Kiwi pulls out of media inquiry

Friday, July 27, 2007

A New Zealand consultant approached by the Fiji Human Rights Commission to conduct an inquiry into the extent of media freedom and independence in Fiji has indicated his unavailability.

Greg Fortuin was one of the individuals approached by the commission to help the commission in identifying ways in which it could promote media freedom and independence in the interest of the public and the profession.

Commission director Doctor Shaista Shameem said Mr Fortuin had indicated he had a personal commitment in Australia during the period they needed him.

She said they needed the inquiry to get underway next month.

Mr Fortuin is only one of the people on a list. We hope to engage another person from New Zealand. The inquiry is going ahead, she said.

Fiji TV news segment had aired footage of correspondence signed by the heads of Fiji TV, Fiji Times, Fiji Sun and Communications Fiji respectively. This marks yet another entrenched turf defense by this media cartel, who have escaped any independent assessment for years. It is this cartel who control the Fiji Media Council and have always resisted outside scrutiny into their empire.

Fiji has seen the dangers of media disinformation leading up to the 2000 coup, as well as the slanted editorial opinions and selective coverage. What is really disturbing, that this media cartel has labeled this inquiry on Fiji TV, as "selective" and highlighting a hypothetical risk that, Fiji Human Rights Commission could "invoke causes of Human Rights to control the media", according to the Fiji TV report.

How can the media be in an impartial position, when elements within itself is resisting any resemblance of oversight?

Unfortunately, this media cartel have often used the fear of control to wriggle itself from any independent review of their operations. This 'Red Herring' is designed to obfuscate attention from the putrid state of affairs in the news room. Fiji deserves a free-press and holding them accountable makes the industry more dynamic and independent of gate-keeping by the media owners. Fiji will never quantify this component, if the media companies refuse to have checks and balances on their own affairs.

Sadly, the arrows of dictatorialism launched by the same media cartel at the Interim Government in Fiji, pales in significance to their own dogmatic principles.

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Thursday, July 26, 2007

Forging a New Direction in Native Administration?

In a follow up the S.i.F.M post on the debate on NLTB. There have been developments in NLTB; as a Fiji Live article outlines. Fiji Times article reports that the 3 boardmembers were on the Standing Committee which deliberated on the contract negotiations for MySAP software with Pacific Connex. Some reactions to this news story was posted on a Fiji blog- Hyde N Ceek.

Fiji Times article also covers a discourse on native administration, which was held in University of South Pacific (USP) and the speech circuit rider, Ratu Joni Madraiwiwi addressed the issues of leadership and change in Fiji.
This is the excerpt of Madraiwiwi's speech:

Accept changes: Chief

Friday, July 27, 2007

[Guest speakers, from left, Eci Nabalarua, Dr Wadan Narsey and Ratu Joni Madraiwiwi at the public lecture on organised by the Queen Victoria School Old Boys Association on Wednesday]

Indigenous Fijians should be more broad minded and accept changes, former Vice-President Ratu Joni Madraiwiwi believes.

Answering questions at a public lecture on Challenges facing indigenous leadership at the University of the South Pacific's lower campus on Wednesday night, he said Fijian leaders were reluctant to acknowledge changes happening around them and allow that to dismantle their traditional way of life.

Fijians have a responsibility to invite other communities to participate in a continuing dialogue about the values and the principles which they value, Ratu Joni said.

He said what was most pressing was articulating an inclusive vision for indigenous and non-indigenous people alike.

It must be one that embraces all the communities of this country and in which no one is made to feel they are an afterthought, as in the Fijians and the rest of the others. As the majority, it is not a contest or a competition.

To see it in those terms would be a futile exercise. It is seeking to build on what we have in common, in order to create a concept of nationhood and sovereignty that we can all share in as well as fitfully participate.

Ratu Joni said among Fijians, the economic imperative appears to have engulfed indigenous people to the exclusion of all else. I do not deny its importance and the profound effect it has in shaping the character of Fijian culture. However, I wonder whether we have reflected sufficiently on notions of Fijian identity, he said.

They are inextricably linked to the Fijian language and to the existence and survival of Fijian villages from which our social structure in a large part derives. Rural-urban migration for education and employment is a staple of modernising societies.

Fiji is no different.

Without sustained and creative approaches to reinvigorating both cultural icons, their decline would leave adverse implications for the manner in which Fijians regard themselves. Ratu Joni said the worry was the increasing prospect that a signification portion of Fijians in the villages may be caught in circumstances of poverty and disadvantage and aside from this was the redefining of notions of Fijian identity. Fijians have always responded to firm leadership. There remains a place for that quality in the present day. What is meant is not dictatorial in nature, he said.

Another interesting perspective was from local Economist, Dr. Waden Narsey appeared in Radio Fiji website, a view which the Fiji Times failed to cover.

This is the excerpt of Narsey's remarks:

Warden Narsey Questions the Role of GCC in helping their people
Thursday, July 26, 2007

Economist Dr. Wardan Narsey has questioned the role of the Great Council of Chiefs in helping their people who work overseas and remit money home.

Dr. Narsay told a panel discussion at the USP last night that individual chiefs and provinces may be helping, but not the GCC as an organization.

“Sound, timely guidance and assistance for their people of an opportunity in terms of earning income overseas. This has come up in the last five, six seven years as the largest foreign exchange earner for Fiji. Kind of things security guards, nurses, care givers, seasonal labor schemes and all that. Individual chiefs, individual provinces may be doing all kinds of things. But what has the GCC as an entity been doing about this very, very powerful avenue for improving the living standards of our people.”

Narsey said that remittances offer huge potential for the indigenous people, but the role of the Great Council in this area remains questionable.

“You read the household survey report that is put out by the Bureau of Stats, you will see that this remittance money goes throughout all our provinces, far more money going out there that in fact all, all the loans provide by all our commercial banks despite all their advertisements. So this is a massive area. What has the GCC been doing about this area?”

Other voices are now being raised, questioning the wisdom of the Great Council of Chiefs(GCC) new complex when compared to the poverty in the grassroots. Interesting enough, it took 6 years for Radike Qereqeretabua to speak out; since the GCC complex started under the SDL Government, a party which he was a sympathiser of and also Qereqerenatabua being a frequent invitee to the cocktail party circuit.

A monumental folly of our time

Tuesday, July 24, 2007

Work continues at the GCC complex at Draiba near Nasova in Suva

Since the announcement by the ousted government of the approval to construct a $20million meeting venue for the GCC, a couple of years ago, I have been questioning the rationale and the wisdom of such a decision given the comparative disadvantaged position we Fijians find ourselves in today, in general terms.

The TV footage on the GCC complex tour by the PM on Sunday, July 8, has prompted me to voice my thoughts on the matter for what they are worth. The TV item said the complex will be opened later this year, and it will now cost $30million. Yes, $30m. Our chiefs, and top government officials are well aware of the grand expensive buildings that have been built around the country in the last few years for the specific purpose of hosting GCC meetings.

And we, the tax payers, have funded these buildings to the tune of millions of dollars. When this type of decisions are made by our Fijian chiefs, and Fijian-led governments, I wonder whether they are aware, I mean truly aware of the plight of the Fijians.

In the rural areas: The poor dilapidated villages; the hardships that Fijian women have to endure to get their root crops on Friday to the markets; the level of anxiety they suffer late Saturday afternoons when they sit on the hard concrete floors of the markets, faced with the prospect on taking their unsold bags of tavioka, and bundles of dalo back home, or give them away for nothing at close up time.

Hard work, sweat and hopes down the drain. Some of the women I interviewed at the markets travel on horse back for miles with their produce before they can reach rural roads where they can hire a vehicle to bring them to the market.

Most are just so disillusioned and disappointed at the lack of concern for them by Fijian authorities. For us from the outlying islands, life becomes harder and harder with the continuing increase in price of outboard motor fuel, to get us to Suva or Lautoka with our produce without an assured market which can guarantee us a fair profit.

What our disadvantaged rural Fijians need is an effective agency that buys produce from the village rara with hard cash. Our chiefs and Fijian government officials should be made duty bound to provide such an agency.

I say an "effective agency", since the National Marketing Authority had failed for whatever reason, and, I believe the newly formed Agro Marketing Authority (AMA) is failing since it is trying to muscle in on territories successfully serviced by established buyers instead of servicing neglected rural producers who desperately need assured markets.

The benefits of such a scheme are manifold: It should help attract Fijians with idle land to return to their villages to make productive use of them in the knowledge that a reliable agency is going to buy the results of their labour at the end of the day; it will reduce the squatter population in the urban areas thus freeing government (and taxpayers) funds to cater to other legitimate, pressing needs.

But the most important benefit would be in the restoration of self-esteem and national pride values that are fast becoming increasingly lost in Fijians today hence the increasing incidence of assault on persons and property, and the high Fijian prison population today.

In the urban scene, I wonder whether our chiefs and our Fijian government leaders are aware, I mean truly aware of the plight of the thousands of Fijian families that now make up a large portion of Fiji's squatter population. With all our mataqali owned land, Fijians should be the most well off and happiest race in Fiji, yet we are not.

I wonder whether, in deciding to spend $20-$30m on the GCC complex, they are remotely aware of the prevailing poor conditions of Fijian educational institutions in their own tikina and provinces. What educational facilities such as vocational education centres are provided out in the provinces for school drop-outs, to assist them find their feet in this increasingly competitive, and confusing world.

Are primary and secondary schools in the rural areas up to par with urban schools to help curb urban drift, and prepare Fijians for a better tomorrow. Successive Fijian-led governments in the last two decades or more have highlighted the need for Fijians to catch up to, and even emulate the academic successes and high standards reached in general by our Indian brothers and sisters.

We, commoners and ordinary Fijians could perhaps be excused for thinking that all this talk by our chiefs and political leaders for substantive advancement in Fijian education is just pure lip service when concrete evidence shows that while our Indian brothers and sisters establish the University of Fiji, our chiefs and political leaders propose, and agree to the construction of a $30m GCC complex.

Yes, thirty million dollars. The $30m could have gone a long way in improving Fijian educational facilities in the villages and provinces. This $30m of taxpayers funds have gone into the complex, while millions of dollars worth of GCC meeting facilities funded by taxpayers stand idle, or at best grossly underutilised around Fiji.

While Prime Minister, Bainimarama might have been a trifle flippant when he suggested that he "wished he could convert the GCC complex to the RFMF headquarters, but couldn't afford the rent the point he made was abundantly clear, and I agree totally with him the funds could have been better used if applied towards more deserving causes for the enhancement of the Fijian people.

I believe that what the Fijian people deserved, and needed from the GCC and our political leaders was not a monumental building complex that is now being built, but monumental decisions guided by the traditional, inherited wisdom with which our chiefs are supposed to be imbued towards improving the lives of the Fijian people.

And I sincerely believe that had our chiefs and political leaders made such monumental decisions in the past to have brought the Fijian race out of the depth of nonentity most Fijians find themselves in today, in their own land, Fijians wherever they are in the world would have been proud to freely contribute $50m or more towards a truly magnificent monument in honour of the GCC worthy of their true status, without touching a cent of taxpayers funds.

I commend the Prime Minister and the Minister for Fijian Affairs in their efforts to improve the lot of the Fijian people for the sake of all the Fiji Islanders in our nation today and tomorrow.

For that, I wish them all the success.

The only thing generic now in the eyes of the Fijian landowners, is whether criminal charges will be filed through FICAC (the corruption unit) or if any landowners who have been affected by NLTB's abuse, would even consider filing civil suit against these former board members for failing in their fiduiciary duties as well as leveling breach of trust charges, as a representative of the Native Lands Trust Board. This Case Law analysis of other notable cases using "Breach of Trust" involving Solicitor's liability.

The definition according to Lectric Law Library's Lexicon:
BREACH OF TRUST - The wilful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence.

The distinction between larceny and a breach of trust is to be found chiefly in the terms or way in which the thing was taken originally into the party's possession; and the rule seems to be that whenever the article is obtained upon a fair contract, not for a mere temporary purpose or by one who is in the employment of the deliverer, then the subsequent misappropriation is to be considered as an act of breach of trust.

[Above Image:Interim Fijian Affairs Minister announcing the resignation of 3 Native Lands Trust Board (NLTB)board members on Fiji TV.]

The question remains of what liability does NLTB have, since these abuses are no longer allegations but proven according to Court testimony heard in Nukurua Landowners Vs NLTB and the more recent case involving Fulton College. What is ironic is that the Mahogany plantations in Tailevu may have been a catalyst for the 2000 putsch in Fiji, according to a Times Magazine article.

This is an excerpt of the Times article:

August 20-27, 2001 | NO. 33

With the decimation of tropical rainforests driving up the price of hardwood, Fiji's mahogany plantations are more valuable than their British founders ever dreamed. So why can't the cash-strapped nation convert its green wealth into gold?

Slicing away leafy obstacles with deft flicks of his cane knife, Kalipate Daunikuco hikes through the forest. Here and there, a pink ribbon nailed to a tree trunk marks the trail, but Daunikuco can do without such hints. After nine years as manager of the Nukurua mahogany plantation, 30 km north of Suva, he knows its tracks and trees as well as most suburbanites know their backyard. He's climbed fissured gray trunks to collect seed pods; carefully removed the winged brown seeds; weeded around saplings until they can fend for themselves, and scrutinized his charges for pests and disease.

Daunikuco says he likes it in the cool, dim forest, where the only sounds are the soft rustling of leaves and the whooping and trilling of birds. But he longs for the sound of chainsaws. The trees are ready to be felled, he says. "It's what we have all worked for."

After 30 years of tending, Fiji's 40,000 hectares of mahogany forests have matured into a potential goldmine. The hardwood they contain is worth billions of dollars; harvested sustainably, it could bring in

$40 million a year in perpetuity for the government, which inherited the plantations from the British colonial administration in 1970. Unlocking that bonanza should be as simple as cutting down the trees: all that's needed is an overseas investor with the money for logging equipment and sawmills and the expertise to process and market the hardwood. But two years after cutting was due to begin, Fiji's rich legacy has become a national ulcer, inflamed by greed, ambition and mistrust. And while landowners, bureaucrats and speculators jostle for a piece of the action, the country's 14 mahogany estates remain as quiet as ever.

There's not much bustle, either, in the handful of shabby hamlets that dot the road along Nukurua's jungle-clad eastern flank. In Naimasimasi village, three young men chat idly near the dusty co-op store; a squatting woman pokes at her garden plot. In his one-room house, 69-year-old Ratu N.D. Tawakelevu is adjusting the new wick on his kerosene lamp. There is no electricity or phone here, and the only reminder of the consumer culture is the Pepsi sign at the store. But the white-haired chief and his neighbors in this and nearby villages are rich in one thing: the plantation's 7,000 hectares-the floor beneath the vast green carpet that ripples across the adjacent valley-belong to them.

Sitting cross-legged on the grass mat that serves as his lounge suite, Tawakelevu explains that in the 1950s, local clan chiefs leased their unused land to the colonial administrators for 99 years, at "about sixpence an acre a year-now it's about two dollars." (Ninety percent of Fiji is owned by indigenous people, but the land parcels are held by clans, not individuals, and cannot be sold.) At first, says the chief, there was work for the villagers, clearing and planting. After that petered out, they didn't give the forests much thought. They didn't even have to collect the rent-that was done for them by the bureaucrats of the Native Land Trust Board, the state-appointed guardian of indigenous landowners.

But in the mid-'90s, says Tawakelevu, "we found out that this mahogany is very valuable." And he and his neighbors resolved to get a share of the treasure.

It's "for our young people," says the one-eyed chief, smoothing his Wesley Mission sulu skirt over his knees. "They should have something for the future."

The idea that landlords are entitled to a stake in their tenants' business enterprises might seem outrageous in the developed world. But in Fiji, where indigenous people's monopoly on land has failed to lift rural dwellers out of poverty, politicians are increasingly sympathetic to any scheme that might help them without the humiliation of handouts. In 1999, when the Labour government began preparing to harvest the mahogany, it embraced that view. "Our approach was that it would be a joint venture," says then Prime Minister Mahendra Chaudhry, "between the government, the landowners, and the investor."

The only questions were what kind of stake the landowners should have, and who the outside investor would be. But on the last issue, Chaudhry's sober plans collided head-on with the ambitions of George Speight. As chairman of Fiji Hardwood Corp., the state enterprise that runs the mahogany plantations, Speight aggressively promoted the cause of a newly formed American company with no apparent ties to the timber industry. When Chaudhry's government sacked Speight for alleged bribe-taking and picked a British company that was already harvesting Fijian pine, Speight-whose family has a farm near Nukurua plantation-told the mahogany landowners they were being cheated and that, as Ratu Tawakelevu still believes, "the government was trying to harvest the mahogany by itself." The ensuing alarm brought several landowning chiefs to Speight's side when he invaded Parliament and took Chaudhry and his government hostage; three nights later, a group of Speight supporters burned Fiji Hardwood's offices to the ground.

In the lush, church-studded hill country where Nukurua and a cluster of other plantations are located, life today seems peaceful to the point of inertia. But beyond the grazing cattle and the roadside taro stalls, the mahogany issue smolders like a slow fuse. With Chaudhry's government deposed and any harvesting deal on hold pending new elections at the end of this month, the nation's mahogany landowners have split into several groups whose allegiance is being anxiously courted by lawyers, government officials, bureaucrats, would-be investors and powerful chiefs.
Tawakelevu's group, the Mahogany Landowners Association, was the first to move. In March, it signed a deal with a four-month-old Californian company to recover mahogany leases from the government and run the plantations in a joint venture.

At wailevu village, beside idyllic blue Savusavu Bay on Vanua Levu island, Ratu Kinijoji Maivalili is the high chief of 38 clans, many of which own mahogany land. "I have met some people who talk big, in millions and billions," he says. "but when I ask them simple questions [about their business plans], they can't answer them. This indicates to me that they're fly-by-night people."

Caretaker Prime Minister Laisenia Qarase has pleaded with villagers to resist eye-popping offers. "You must not look only at this first harvest," he told the Mahogany Landowners Association in May. "You must consider this treasure a future, a permanent source of income if we do the right thing." But his predecessor Chaudhry fears that wise counsel is no match for greed: "Nobody thinks about sustainability and adding value by processing the timber," he says. "They just look at the trees, do a quick calculation and say, How much can I make out of this? Here we go! And in five years there will be no mahogany left."

It was to save indigenous Fijians from exploitation that the British colonists in the 1940s set up the Native Land Trust Board. Housed in a spruce white building opposite the decaying gray concrete of Suva's government offices, the board is the custodian of all indigenous land in Fiji. It has plans of its own for the mahogany plantations, and they don't include letting village bumpkins run their own show. The board hopes to buy back the leases on all Fiji's plantations and find its own investment partner to cut and market the timber.

"It's all for the landowners. We are fighting for them," says general manager Maika Qarikau, a prominent supporter of Speight's coup.

The stocky, gray-bearded Qarikau doesn't understand why some groups of landowners "seem to say we are against them." They need the board's protection more than ever, he adds: "With the troubles at the moment, there are a lot of sharks about."

But many landowners would rather swim with sharks than trust their official godfather. In recent years, complaints have multiplied about inefficiency, secretiveness and indifference to landowners' wishes. The way the board distributes income from leased land also grates: after it extracts a 20% administration fee and pays the local chiefs 25% of what remains, ordinary clan members-who could number 60 or more-are often left with a pittance.

Grassroots view of the NLTB

Unlike the land bureaucrats, high chief Maivalili is known for his scrupulous attention to the views of his people. "We are not happy with the way the nltb is running things," he says. "How can we move forward if the official people aren't looking after us? I feel we should do our own negotiations, because these people are sleeping-they are sitting on their backside." Chief Tawakelevu is just as wary of the board's protective hand. "Most of the top chairs, they just want to fill their pockets," he says. "That's why we decided to kick out those people and go with the American company ourselves."

The government and the board can quash any deal the landowners make, but the landowners hold a trump card: they can keep the trees in the ground. "We will just block the road to the plantation," says Tawakelevu with a grin. "Without an agreement with us, nobody will be able to get in to cut the mahogany-unless they have helicopters." But "there must be a peaceful way to solve it," he adds, "so everybody sits down for their piece of cake." Age has made him optimistic. "The Bible says we have three score and ten years," he says. "That gives me one more year. This mahogany will definitely be harvested before I die."

High chief Maivalili isn't in a hurry. "It is a resource," he says. "It can be left out there for 10 years and it will still be there. What would upset me is if people try to exploit it without the landowners." Fijians are proud of their traditional consensus-based culture, in which everyone comes together to talk out problems. But the mahogany issue is so highly charged that getting all parties to agree could take years. Still, any amount of talking is better than violence. And while it goes on, Kalipate Daunikuco will go on planting mahogany.

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Wednesday, July 25, 2007

Fiji's Fourth Estate Touches The Third Rail.

The proposed inquiry on media independence brokered by the Fiji Human Rights Commission, was considered a threat by Fiji Media Council, prompting the refusal of its Chairman Daryl Tarte to get with the program, as a Fiji Sun article reports.

This is the excerpt:

Media council shies from inquiry
Last updated 7/25/2007 7:41:08 AM

The Fiji Media Council has refused to be involved in an inquiry commissioned by the Fiji Human Rights Commission. Council chairman Daryl Tarte said the FHRC had been planning the inquiry for some time but had not contacted the media council for its contribution. Mr Tarte said he would not comment on the inquiry itself.

FHRC director Dr Shaista Shameem said the FHRC was an independent commission and did not need to consult anyone before it undertook its powers and functions. She said the Media Council and other stakeholders had all been invited to make submissions to the independent consultant.

“This is an inquiry into whether the Fiji media are free and independent and we would like submissions from everyone associated with the media.”

"I hope this puts to an end the baseless speculation in the media of the use of drugs within the national team management," FRU chief executive Timoci Tavanavanua said.
"Several officials have been severely hurt by these false allegations," Tavanavanua said. "I hope those media that helped spread this grog-bowl gossip will have the decency to come clean and apologise."

To date no apology was forthcoming by any media outlets which covered the story. Complaints into the media coverage was exacerbated with this story published by Fiji Times and other leading dailies regarding allegations of drug abuse by certain officials within Fiji Rugby Union. The story of the drug test was featured in
the Guardian article.

The proposed scope, is as follows:

The media inquiry will seek;

  • - To provide a historical overview of
    the range of media available in Fiji,
    including ownership and scope of

  • - To review human rights and other laws
    and policies with respect to freedom and
    independence of the media and
    assess Fiji's compliance
    with them.

  • - To review whether the Fiji media comply
    with international standards of corporate
    responsibility for media freedom and

  • - To review laws and policies on the right
    of the public to information.

  • - To review the extent to which the public's
    right to accurate, balanced and up-dated information
    is protected in Fiji.

  • - To review current systems in place to protect journalists and other media personnel from violations of their rights.

  • - To review whether work conditions of media personnel comply with Constitutional provisions on fair labour relations.

  • - To review whether journalists have freedom internally and externally to exercise their functions in the public interest to the extent required by international human rights law

  • The inquiry into whether the Constitutional right of every person to vote was fully protected in the 2006 elections. It will seek;
  • - To provide an overview of international human rights laws on the right to register and vote by secret ballot and review whether laws, policies and institutions of Fiji comply with them.

  • - To receive submissions from members of the public, including those in the minority and disadvantaged groups, on their experiences of voting in elections prior to 2006 as well as in 2006, and any recommended improvements.

  • - To receive submissions on whether the current voting mechanisms and practice are effective and to make recommendations for review.

  • - To make recommendations on required policy and law changes to ensure that the right to register and vote by secret ballot is fully complied with.

This inquiry is welcomed by S.i.F.M as an independent assessment of the media and the nation of Fiji deserves nothing short. This in-depth study should include stories of censorship and gate-keeping by the Editorials, the coverage of breaking news and the impartiality of those observing.

Sadly, these basic parameters have escaped scrutiny of the Fiji Media Council and Fiji Media Watch, both self-declared media watch dogs; realistically both organizations display traits that are usually associated with lapdogs-Silent, Timid and Obedient when called by the public, to sniff out the sins of their masters.

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Sunday, July 22, 2007

Who Among You, Said Nothing, Did Nothing?

The remarks of FLS member Isireli Fa at the recent Fiji Law Society convention appeared in a Fiji Times article, alluding to the structural deficiencies of Native Lands Trust Board (NLTB).

Fa's comment on the issue of NLTB's recent track record and the increasing complaints from landowners, seemed to be dismissed and down played by two flamboyant chiefs, Joni Madraiwiwi, Filimone Ralogaivau as well by the NLTB's Deputy General Manager, Semi Tabakanalagi.

This is the excerpt:

Lawyers attack lands body

Monday, July 23, 2007

Isireli Fa and Dr Shamsud Dean Sahu Khan at the Fiji Law Society Convention (L)

THE Native Lands Trust Board came under a barrage of attacks from lawyers during the Fiji Law Society's 51st Convention that ended in Nadi yesterday.

Suva lawyer, Isireli Fa said there was a general agreement the NLTB had failed to handle land issues in an appropriate manner. Mr Fa said even though the Fijian community owned 80 per cent of the land in the country, they were still among the poorest.

Meanwhile, Ratu Joni Madraiwiwi said the structure of the NLTB had to be more flexible to empower Fijians while strengthening the legal and economic base that would take the country forward. Ratu Joni said the NLTB had the pivotal position of controlling Fijian land since its establishment in 1940.

"There is a real debate going on quietly about how we deal with the NLTB and the issue giving landowners more autonomy in order to make up their own minds about the economic use of their own land," he said.

Ratu Filimone Ralogaivau said many Fijian people wanted to look after their own land rather than having the NLTB. Ratu Filimone said many were educated and could handle negotiations regarding the use of their own land.

NTLB assistant general manager, Semi Tabakanalagi said they were always open to landowners wanting to be involved in the process.

However, Mr Tabakanalagi said the problem was getting landowners to actually participate. He said many lacked the capital or skills to be part of the process.[Tabakanalagi] said if they had the necessary skills and capital then the board would be glad to have them involved.

NLTB Deputy General Manager Semi Tabakanalagi's cookie-cutter outline of the problems of Fijians, in the context of the development of native land needs to taken with a grain of salt. Tabakanalagi speaks of the lack of capital and the necessary skills, as if this was a new phenomenon. Perhaps it is true that, the landowners lack the necessary skills; it doesn't mean they can't be taught. Should landowners even trust Semi Tabakanalagi, who even defended Keni Dakuidreketi's conflict of interest at the beleaguered Natadola project, as published in an earlier S.i.F.M post which was sourced from a Fiji Times article:

Copy of the Fiji Times article on the issue.

Landowners query board loyalty
Monday, July 24, 2006

THE Native Lands Trust Board was last week required to provide landowners of one of the country's largest tourism developments the reassurance that they are committed to protecting landowners' interests.

NLTB's Deputy General Manager Operations, Semi Tabakanalagi was swamped with concerns regarding the loyalty of the board during a meeting with landowners from Sanasana Village in Sigatoka.

Seven landowning units from the village own the land on which the Natadola Marine Resort project is currently being developed. A delegation led by Mr Tabakanalagi traveled to the village on Thursday to address grievances raised by landowners.

However, during the meeting Mr Tabakanalagi and his team were bombarded with claims that the board was working more with the project developers and either ignoring or sacrificing landowners' interests.

Landowners' spokesman, former cabinet minister and senator, Apisai Tora said the four units he was representing were concerned about their rights and interests being sacrificed to ensure the project continued.

Mr Tora said a major concern of landowners was Keni Dakuidreketi's position with NLTB while being the main developer for the project. "This is a clear case of conflict of interest and this has raised a lot of eyebrows within the landowning units of Sanasana."

"Since Mr Dakuidreketi is the main developer, we are concerned that all decisions made by the board would be made to see that the project went ahead regardless of whether our rights were sacrificed," [Tora]said.

"Even though NLTB is our trustee, it seems that it is pushing the company's interests," said Mr Tora.

"We have some grievances with several works that the developers are carrying out so how do you expect us to trust that the board will address our concerns when the developer is sitting on the board," Mr Tora asked.

Attempts to contact Mr Dakuidreketi yesterday were unsuccessful.

"You do not have to worry about Mr Dakuidreketi because that is our job to see that he carries out his duties properly. NLTB is always for the landowners and your rights and interests are always our priority," Mr Tabakanalagi said.

But Mr Tabakanalagi said there was nothing to worry about because the board always fought for the rights and interests of landowners. He promised that no decision would be made in favor of the developers because Mr Dakuidreketi was a member of the board

The public now knows that, Tabakanalagi's reassurance was as genuine as, the gold paved streets of Suva. Keni Dakuidreketi, APRIL's CEO and NLTB Board Director has since been removed from his post, pending an in-depth scrutiny and overhaul into native institutions.

Was it appropriate for the NLTB representative to talk about the lack of capital with landowners; yet refuse to inform grassroots landowners about the secret slush fund NLTB has siphoned from, to loan out millions to a hotel developer in Denerau, a story published by Fiji Live. It is true the landowners don't have capital because they have been paid a pittance, compared to what the NLTB charges as fees.

Tabakanalagi's assertions that, NLTB wanted more landowners to "come forward" is misleading at best, bold-faced lying at worst. The case of Nukurua, Tailevu shows that NLTB had in fact, stonewalled the aspirations of this group of landowners. The land in question, has since been returned to the landowners; after several court cases lasting decades; as a Fiji Live article reports.
Although, Land is a subject which many native Fijians hold close to the heart; some Fijians hold it close to their hearts, yet refuse to address the underlying flaws in the system.
Bua chief, Filimone Ralogaivau is among that faction. His response was accurate, but belated nonetheless. Ralogaivau, being a senior member of the GCC for years, one wonders why he or the GCC did not attempt to change this archaic legislation of land, he now considers should be changed.

Sadly, the muted responses of these chiefs and many others, have irreversibly dogeared this chapter in Fiji history. Their chiefly inaction and hollow rhetoric in solving the decades old cases of injustice, underscores this dichotomy.

Time to put things in their proper perspectives

Monday, July 23, 2007

(Opening remarks to the Fiji Law Society Convention 2007 at the Sheraton Fiji Resort, Denarau, Friday July 20)

I THANK the president and the Council of the Fiji Law Society for the invitation to speak at the opening of its annual convention.

These are difficult times. There is no more potent sign of the divisions in our midst than the absence of the interim Attorney-General and the reasons he has given.

The coup of December 5, 2006 continues to sunder the profession and the judiciary.

However, the parallel paths we have respectively followed must not only be bridged but pointed in a common direction one that strengthens respect for, and adherence to, the rule of law.

It calls for engagement and dialogue in good faith and integrity. The process must begin with the restoration of the Hon Chief Justice to his position. Six and a half months after his arbitrary removal and suspension without charge, the members of the tribunal established to investigate his alleged misconduct have yet to be appointed.

The impasse has continued for long enough at incalculable damage to the judiciary. The Executive has demonstrated how fragile the concept of the independence of the judiciary is. Its actions in suspending the Chief Justice on January 3, 2007 without cause assumed guilt without more.

Although His Excellency has extended the period in which to find suitably qualified members of the Tribunal, the interim Government's inability to find appropriate persons in the first six months does not augur well.

It is now time to revisit the issue and return to the beginning. However, there can be no return to the status quo ante prior to December 5, 2006. The divisions within the judiciary date back to May 2000. They must be dealt with because they re-emerged in January of this year with a vengeance to compromise the good standing of the courts.

Consideration must be given to establishing a commission with broad terms of reference. It would inquire into the state of the judiciary and the role, if any, played by judges in the events of May, 2000 and December, 2006.

It would also make broad recommendations for the future, including sweeping changes of personnel if necessary. While the time to move on is now perhaps appropriate, the commission would assist in giving some directions to the judiciary and the profession.

In looking back on the operation of the High Court, one is non-plussed at the extent to which the protagonists have pursued conflicting agendas and motives oblivious or uncaring about the common weal. There is no place for such sentiments in the courts because the dispensation and delivery of justice require focus and attention to detail.

Lest it be thought that I am being disrespectful of His Excellency, that was not intended. The decision to remove the Chief Justice on January 3, 2007 was made by the Commander as Acting President.

It has been widely denounced because it violated the independence of the judiciary and the sanctity of the courts. This was compounded by the absence of any charges.
So, were the Chief Justice to be reinstated, it would be seen as a placatory and conciliatory gesture by the interim Government's opponents and the international community.

To charges that the interim Government has retreated' from its clean-up campaign', it could point to the Presidential Commission with its broad terms of reference as taking forward that task in relation to the judiciary.

A transparent, accountable and efficient court system serves the interest of the country and all its people. The recommendations of the commission would then be considered for implementation by the next elected government.

What personnel changes, if any, were recommended could be effected immediately as part of the process of rebuilding. In the interim, the plethora of cases challenging the validity of the events of December 5, 2006 and its related consequences must be allowed to continue without interference.

In the event, the decisions are adverse to the military and to the interim Government, we must not expect them to return to barracks or expect latter to resign.
These are the compromises that we will need to entertain if the deadlock is to be broken.

It is hoped that the process of consultations and dialogue the interim Government has envisaged would by then have delivered some results. Chief among these is an acceptance by all political parties and groupings that they await the next general election whenever that is called. The declarations made by the courts would have moral and historical value and remind us that coups, by definition, are extra constitutional in character.

The issue of amnesty is critical to any political settlement, although this may be anathema to the purists in our midst.Of necessity, it would have to be broadly cast to provide protection to the considerable members of soldiers and civil servants having participated in potentially treasonous conduct.

This will have to be incorporated as part of any political settlement and given some constitutional validation to confer the level of immunity that would be considered adequate.

There are parallels which have already been enshrined in the 1990 and 1997 Constitutions. The implications this has for condoning and extending the coup culture are self-evident. However, this initiative needs to be seen as a mechanism for furthering the political process.

Those adverse consequences would have to be dealt with by the Government, the military, civil society, the private sector, the faith communities and the vanua in moving forward. Coups are, by their very definition, divisive and destructive events, bespeaking a basic failure in dialogue.

Institutions such as the Independent Commission Against Corruption (ICAC) must be disbanded on the understanding that its proper establishment would be a priority of an elected government.

We have seen the breathtaking sweep of its powers and it is frightening. The end never justifies the means unless it is in accordance with due process and the rights of those affected are assured. The military personnel who are appointed to the commission must be returned to the barracks post haste. The combating of graft and corruption require highly specialised skills that the military simply do not have.

Let us all agree that suitably qualified and experienced personnel will be part of the commission when circumstances permit. The commission's misapprehension of its power may already have cost the Chief Executive Officer of FIRCA his position. He was well within his professional expertise to defend the confidentiality of FIRCA records as a matter of law.

The legislation establishing the commission is open to legal challenge.

Not being part of the Constitution, the commission is in no position to assert its legal primacy over FIRCA when its very existence is legally dubious. Another institution that has asserted centre stage since the events of December 5, 2006 is the Fiji Human Rights Commission. This has been purely because of the position adopted by its director, Dr Shaista Shameem.

I make no comment on the propriety or otherwise of her actions. Suffice it to say that it probably warrants an inquiry or investigation by an appropriate authority as to whether they did not compromise her position.

At a time when wide-scale human rights abuses of intimidation, thuggery and even murder were committed by the military, the position articulated by Dr Shameem can best be described as perplexing.

Her recent appointment as Ombudsman and chair of the Fiji Human Rights Commission is a slight to the many people who have been detained and ill-treated by the military. It reflects adversely on the credibility of both institutions and raises serious questions about the suitability of the appointment.

This is not about personalities, it is about preserving the integrity of the institutions concerned. Beyond that, the legal profession and the judiciary must rediscover their sense of inter-dependence and mutual reliance.

There appears to have developed a distance between the two where the courts have been left on their own to resist the manipulations and machinations of the Executive.

In the period after December 5, 2006, there was a sense of drift and disconsolation. The suspension of the Chief Justice was met with little reaction.

To be fair, most of the profession had little or no contact with him and while respectful were not attached in any degree. This relationship must become more dynamic, meaningful and reciprocal.

We are a small profession and the judicial officers in our midst constitute an even lower figure.

The point about a deeper and closer partnership is its efficacy when the rule of law is threatened. That was absent in present circumstances because neither side had invested much to nurture the process.

Let that be a lesson to all of us for the future.

And what of appointments made by the Judicial Services Commission (JSC) since December 5, 2006? I have already foreshadowed the restoration of the Chief Justice. The other decisions by the JSC must be assessed on a case by case basis as in whether the criteria for judicial appointments have been met.

If so, then there should be no attempt to rescind those made after December 5, 2006 on that basis alone. There must be recognition and acknowledgment of merit for its own sake and avoidance of arid legal technicalities that may complicate already fraught relationships and connections.

This would be without prejudice to the inquiry to be conducted by the presidential commission on the state of the judiciary. It is envisaged that this commission would be empowered to make recommendations concerning current appointments as well.

The relationship between the Director of Public Prosecutions (DPP) and ICAC must be more clearly defined. Under the Constitution, the DPP has conduct of all criminal prosecutions.

If ICAC is now to play a part in that process to be able to confront corruption graft directly, then there must be a demarcation of responsibilities. Left to its own devices, ICAC risks becoming a law unto itself with few checks on its considerable powers.

It is not in the draconian powers of search and arrest alone that the eradication of corruption lies.

It is rather in the careful and painstaking preparatory work of sifting through files, accounts and information, making the appropriate connections and forming conclusions that is critical. Unless these aspects are carefully analysed and remedial measures taken, the eradication of corruption will become bogged down in meaningless bureaucratic infighting.

In terms of institutional strengthening and reinforcement of the rule of law, those are issues for the bench and the bar to consider carefully.

However, the time has come for us to draft protocols that set out very clearly the appropriate conduct expected in extralegal situations. The purpose of the protocols would be to remind all of us about what is expected from the courts and practitioners.

As for the judiciary itself, the advantages of our relative size have not been fully taken advantage of. In a system which allows personal contact and familiarity, its sense of collegiality and unity must be enhanced.

The reality of judicial officers being masters of their own courts has too readily encouraged a discrete sense of autonomy that has not been countered sufficiently.
In times of crisis, there is a heightened disconnection caused by the lack of a greater sense of the whole. When solidarity and closing ranks is called for, it is not readily apparent.

What we need to reflect upon is whether the modus operandi in times of normality have a bearing on times of upheaval and instability. What is offered here is a few thoughts on how we might begin to narrow the divide. The starting point in my scenario is the restoration of the Chief Justice.

The interim Government's concern will be loss of face. As against that, the profession must be prepared to allow the establishment of a presidential commission with wide ranging terms of reference into the judiciary and possibly the legal profession itself.

Its focus will include judicial conduct in May 2000 and post-December, 2006. A wide-ranging amnesty is contemplated in the context of acknowledging the realities on the ground and the demand for engagement.

Many of you will oppose the principle. What alternative is there? Unless there is an accommodation, we persist on our parallel paths. The importance of political engagement on the part of the interim Government and its opponents will need to be considered in the context of legal rulings against the interim Government.

Last, the removal of certain people and the sending into abeyance of particular institutions have also been mooted. It is an untidy picture but we must begin somewhere if we are to restore confidence in our legal institutions and the rule of law. It is a duty we owe to the principles that we have sworn to uphold and the people whom we serve.

Where was the learned scholar of law and chief, Joni Madraiwiwi when his fellow Tailevu landowners were struggling to repatriate their native land?

Is this a measure of a man who read law and hails from the same province called Tailevu, yet never took on a case
( pro bono)on behalf of abused Tailevu landowners, who were challenging NLTB?

Although, the former Fiji Vice President, Joni Madraiwiwi has been quite vocal recently about putting things into perspective, which he addressed in his opening remarks to the Fiji Law Society convention and eagerly published by the Fiji Times; Madraiwiwi's silence on the gross and wilfull abuse of native lands legislation by the Native Lands Trust Board is deafening, notwithstanding embarrassing in the eyes of any kai Tailevu.

One would think, as a chief from the province of Tailevu and a legal expert, Madraiwiwi would be a leading advocate of landowners. Or to be bold enough to establish legal tools for native landowners in Fiji.
In fact, Maraiwiwi's repeated silence on these matters should only remind the grassroots that, legality is a convenient topic to preach about, but not followed.

What is concerning is that, seldom has Madraiwiwi used his legal abilities to contest NLTB"s abuse or represent landowners. The case of Fulton College in Tailevu reported by a Fiji Times article, bears yet another testimony to the history of lip service by countless chiefs; an institution to which Madraiwiwi and Ralogaivau are pillars of.

If pillars were to symbolize strength, pillars also represents an unmovable entity. An entity that was unaware, unmoved and unhelpful to the concerns of their own people, who took upon themselves to legally challenge this status quo in Fiji's land tenure system; a system which Madraiwiwi and the likes in his social strata, are benefactors of.

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Friday, July 20, 2007

Down Under Logic from Alexander Downer.

Australia's Foreign Minister, Alexander Downer has revealed a superior application of hypocrisy, in his latest interview reported by Radio Fiji.

This is the excerpt:

Fiji and Solomon Islands two major issues at the PFL meeting

AUSTRALIAN Foreign Minister Alexander Downer believes Fiji and Solomon Islands will be the two major issues at the Pacific Forum Leaders meeting in Tonga.

A Tongan Broadcasting Commission report carried by Pacnews says Downer told reporters in Tonga he didn’t think the Tongan situation was going to be at the forefront of the leaders' discussions.But, he said the Forum must focus on Fiji and Solomon Islands.

[Downer] said the reform process in Tonga was underway and there appeared to an emergence of consensus about where Tonga wants to go, Downer emphasised Tonga could not have foreigners come in to tell them exactly how to do this and that they had to do it themselves.

Obviously, Downer's comments seem to run against the grain, for Fiji and Solomon Island's case. If Tonga does not need foreigners to tell them how to run their monarchy, cloaked under the veneer of democracy; why can't Fiji or Solomon Islands be treated the same way.

Inextricably, these comical double standards of Australia and New Zealand, have placed their own foreign policies in the South Pacific, in an untenable position from a Melanesian perspective. It is certainly not surprising that China has been courted by Fiji and Solomon Islands, both of whom grown quite tired of this Nanny like diplomatic posture adopted by the ANZUS alliance; reflecting their dwindling influence in Melanesian regional politics.

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