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
TIMOTHY NAIVALUWAQA
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
RATU JONI MADRAIWIWI
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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