COMMENTARY: By Richard Naidu in Suva
Breakfast they say, is the most important meal of the day.
But last Wednesday it was possibly also the most dangerous. Because that’s when many people were likely to be reading The Fiji Times and choking over their corn flakes.
They could have been reading more pontification from the former attorney-general Aiyaz Sayed-Khaiyum about “constitutionalism” and “rule of law” and “the embodiment of the values and principles surrounding constitutions” . . . etc.
I am not often at a loss for words. But the sheer brazenness of someone who, in the course of nearly 16 years in government, paid little regard to any of these things, brought me pretty close.
Last weekend Aiyaz Sayed-Khaiyum gave a rambling press conference complaining about all manner of things the new coalition government was doing. I was so irritated I put out a long statement debunking the so-called “breaches of the Constitution” he was alleging.
But the man doesn’t give up.
He is clearly unmoved by any embarrassment he may feel about having first accepted a Constitutional Offices Commission appointment that got him kicked out of Parliament under the Constitution he drafted; and then resigning the COC position when he realised he could not do that job and also be the FijiFirst party general secretary.
All in the space of three days. That’s the legal equivalent of shooting yourself in both feet.
So let’s begin by talking about “rule of law”, because I am beginning to wonder if anyone in the FijiFirst party even understands what it means.
Rule of law
Let’s begin with what it does not mean. Rule of law does not mean “I made the laws, so I rule”. Rule of law is a much more complicated idea than that. Many people have tried to define it, in many different ways.
For those of us who are interested in it, it’s one of those things you sort of know when you see. But a central point of it, I think, is the idea that the law is more important than the people who make it or exercise power under it.
So that means that our rulers — like the people they make the rules for — must respect it in the same way that we have to. Lord Denning, a famous British judge (millennials — look up his role in Fiji’s history) repeated (and made famous) the words of the 18th century scholar, Thomas Fuller: “Be you ever so high, the law is above you.”
For more than a decade, the government of which Aiyaz Sayed-Khaiyum was part of, paid little heed to this idea. It followed the law when it suited them, but ignored it when it didn’t suit them.
Let’s assume, for the moment, that he believed that the 2006 military coup (which the grovelling Fiji Sun once memorably described as “a change in direction of the government”) was lawful, together with the military government which followed.
That government continued to tell us it would follow the 1997 Constitution. But in April 2009 Aiyaz Sayed-Khaiyum could no longer believe that the military government was lawful. Because, in a case brought by deposed by deposed Prime Minister Laisenia Qarase, the Fiji Court of Appeal clearly told him that it wasn’t.
If you believed in rule of law, you would accept what the court had told you, quit your post and allow the lawful government to return, as the court required. He did not. Instead, he and his government decided that the 1997 Constitution had become inconvenient.
So they just trashed it. This was not rule of law. Aiyaz and the then government had instead decided that they were above the law.
The new constitution
Fast forward to 2012 and the process of a new constitution. We were told (in a pompous government media statement on 12 March 2012) that the then government was “looking to the future of Fiji and all Fijians”.
“During the process of formulating a genuine Fijian constitution,” we were told, “every Fijian will have the right to put their ideas before the constitutional commission and have the draft constitution debated and discussed by the Constituent Assembl . . .
“As the process continues with the Constitution Commission and the Constituent Assembly all Fijians will have a voice.”
What actually happened?
The well-known constitutional scholar Professor Yash Ghai was flown in to chair a new constitutional commission. His commission travelled around the country, gathering the views of the people on what a new constitution should say.
Hardly a perfectly democratic process, but better than nothing. The Ghai Commission drafted a new constitution. But the government didn’t like it. So much for the “voices” of Fijians. Out it went — constitution, commission and all. Six hundred printed copies of the draft constitution were dumped into a fire.
Professor Ghai was sent packing. Instead we were handed the 2013 Constitution, pretty much from nowhere. No “Constituent Assembly”. Nobody “had a voice”. So, was that all a process Aiyaz Sayed-Khaiyum might call (his word) “constitutionalism”?
Did things get any better?
So, at least the new Constitution, and the elections of 2014, were a new start. Maybe we could expect the new elected government, of which Aiyaz Sayed-Khaiyum was chief legal adviser, to begin thinking about “rule of law” and “constitutionalism” and “embodying values and principles surrounding constitutions”?
Here’s one more important point about rule of law. It’s not just about the laws which tell you what to do and what not to do. It’s also about the law protecting your rights and freedoms — and protecting what you are allowed to do.
Your rights and freedoms under the 2013 Constitution include your rights of free expression, your rights to assemble and protest, your right to personal liberty — yes, the right not to be locked up at whim — among many others.
They even include the right to “executive and administrative justice” — that is, to be treated fairly by the government and its institutions. So a government that is applying the laws of the land ought to, while applying them (in the words of Aiyaz Sayed-Khaiyum) “embody the values and principles” of that Constitution.
How, then, were the “values and principles” of our Constitution being embodied when unions were repeatedly being denied the right to assemble and protest? How were they being embodied when under our media laws, journalists were threatened with jail for writing stories which were “against the national interest” (whatever that meant)?
How were the “values and principles” of our Constitution being embodied when public servants lived in permanent fear of arbitrary dismissal?
How were the “values and principles” of our democratic Constitution being embodied when the government passed important laws in Parliament, affecting things like our voting rights, citizenship, our rights to a fair trial and the regulation of political parties, all by surprise, on two days’ notice?
No cell time
There was an outcry earlier this week when police, over two days of questioning our former attorney-general, did not put him in a cell overnight. After all, former opposition politicians such as Sitiveni Rabuka, Biman Prasad and Pio Tikoduadua, when taken in for questioning for objecting to bad laws, were not so fortunate.
They got to spend a night in police custody. Why, people asked, was Aiyaz Sayed-Khaiyum getting special treatment? The answer? He was not getting special treatment. What was actually happening was that — for the first time in many years — the police were applying the law correctly.
If the person you are questioning is not a flight risk, there’s no need to lock him up. He is innocent until proven guilty. His personal freedom is more important than the convenience of the police.
He can sleep in his own bed and come back for more questioning tomorrow.
That would be, in Aiyaz Sayed-Khaiyum’s words, “embodying the values and principles of the Constitution”. But that is not something his government appeared to extend to its opponents when the police came calling. So I think we all deserve to be spared his lectures on “constitutionalism” for a little while.
Perhaps instead our former attorney-general might find it more valuable to take some time to quietly reflect on how well the governments of which he was part “embodied constitutional values and principles”. He has a total of nearly 16 years to reflect on — and not all of us have forgotten.
That ought to take a little while. And a few of us might then be able to enjoy more peaceful breakfasts.
Richard Naidu is a Suva lawyer and former journalist (although, to be honest, not a big breakfaster). The views in this article are not necessarily the views of The Fiji Times. Republished with permission.
Gavin Ellis: Communication lessons from the Great Flood
COMMENTARY: By Gavin Ellis
It is unlikely that the Mayor of Auckland, Wayne Brown, took any lessons from the city’s devastating floods but the rest of us — and journalists in particular — could learn a thing or two.
Brown’s demeanour will not be improved by a petition calling for his resignation or media columnists effectively seeking the same. He will certainly not be moved by New Zealand Herald columnist Simon Wilson, now a predictable and trenchant critic of the mayor, who correctly observed in the Herald on Sunday: “In a crisis, political leaders are supposed to soak up people’s fears…to help us believe that empathy and compassion and hope will continue to bind us together.”
Wilson’s lofty words may be wasted on the mayor, but they point to another factor that binds us together in times of crisis. It is communication, and it was as wanting as civic leadership on Friday night and into the weekend.
Media coverage on Friday night was limited to local evacuation events, grabs from smartphone videos and interviews with officials that were light on detail. The on-the-scene news crews performed well in worsening conditions, particularly in West Auckland.
However, there was a dearth of official information and, crucially, no report that drew together the disparate parts to give us an over-arching picture of what was happening across the city.
I waited for someone to appear, pointing to a map of greater Auckland and saying: “These areas are experiencing heavy flooding . . . State Highway 1 is closed here, here and here as are these arterial routes here, here, and here across the city . . . cliff faces have collapsed in these suburbs . . . power is out in these suburbs . . . evacuation centres have been set up here, here, and here . . . :
That way I would have been in a better position to understand my situation compared to other Aucklanders, and to assess how my family and friends would be faring. I wanted to know how badly my city as a whole was affected.
Hampered by deadlines
I didn’t get it from television on Friday night nor did I see it in my newspaper on Saturday. My edition of the Weekend Herald, devoting only its picture-dominated front page and some of page 2 to the flooding, was clearly hampered by early deadlines. The Dominion Post devoted half its front page to the storm and, with a later deadline, scooped Auckland’s hometown paper by announcing Brown had declared a state of emergency.
So, too, did the Otago Daily Times on an inside page. The page 2 story in The Press confirmed the first death in the floods.
I turned to television on Saturday morning expecting special news programmes from both free-to-air networks. Zilch . . . nothing. Later in the day TV1 and Newshub did rise to the occasion with specials on the prime minister’s press conference, but it seems a small concession for such a major event.
Radio fared better but only because regular hosts such as NewstalkZB’s All Sport Breakfast host D’Arcy Waldegrave and Today FM sports journalist Nigel Yalden rejigged their Saturday morning shows to also cover the floods.
RNZ National’s Kim Hill was on familiar ground and her interview with Wayne Brown was more than a little challenging for the mayor. RNZ mounted a “Midday Report Special” with Corin Dann that also tried to break through the murk, but I was left wondering why it had not been a Morning Report Special starting at 6 am.
Over the course of the weekend the amount of information provided by news media slowly built up. Both Sundays devoted six or seven pages to the floods but it was remiss of the Herald on Sunday not to carry an editorial, as did the Sunday Star Times.
It was also good to see Newsroom and The Spinoff — digital services not usually tied to breaking news of this kind — providing coverage.
“Live” updates on websites and news apps added local detail but there was no coherence, just a string of isolated events stretching back in time.
Inadequate information
Overall, the amount of information I received as a citizen of the City of Sails was inadequate. Why?
Herein lie the lessons.
News media under-estimated the impact of the event. Although there were fewer deaths than in the Christchurch earthquake or the Whakaari White Island eruption, the scale of damage in economic and social terms will be considerable. The natural disaster warranted news media pulling out all the stops and, as they did on those occasions, move into schedule-changing mode (and that includes newspaper press deadlines).
Lesson #1: Do not allow natural disasters to occur on the eve of a long holiday weekend.
Media were, however, hampered by a lack of coherent information from official sources and emergency services. Brown’s visceral dislike of journalists was part of the problem but that was not the root cause. That fell into two parts.
The first was institutional disconnects in an overly complex emergency response structure which is undertaken locally, coordinated regionally and supported from the national level. This complexity was highlighted after another Auckland weather event in 2018 that saw widespread power outages.
The report on the response was resurrected in front page leads in the Dominion Post and The Press yesterday. It found uncoordinated efforts that did not use the models that had been developed for such eventualities, disagreements over what information should be included in situation reports, and under-estimation of effects.
Massey University director of disaster management Professor David Johnston told Stuff he believed the report would be exactly the same if it was recommissioned now because Auckland’s emergency management system was not fit for purpose — rather it was proving to be a good example of what not to do
Lesson #2: Learn the lessons of the past.
The 2018 report did, however, give a pass mark to the communication effort and noted that those involved thought they worked well with media and in communicating with the public through social media.
Can the same be said of the current disaster response when there “wasn’t time” to inform a number of news organisations (including Stuff) about Wayne Brown’s late Friday media conference, and when Whaka Kotahi staff responsible for providing updates clocked-off at 7.30 pm on Friday?
Is it timely for Auckland Transport to still display an 11.45 am Sunday “latest update” on its website 24 hours later? Is it relevant for a list of road closures accessed at noon yesterday to have actually been compiled at 7.35 pm the previous night? Why should a decision to keep Auckland schools closed until February 7 cause confusion in the sector simply because it was “last minute”?
Lesson #3: Ensure communications staff know the definition of emergency: A serious, unexpected, and potentially dangerous situation requiring immediate action.
There certainly was confusion over the failure to transmit a flood warning to all mobile phones in the city on Friday. The system worked perfectly on Sunday when MetService issued an orange Heavy Rain Warning.
It appears that emergency personnel believed posts on Facebook on Friday afternoon and evening were an effective way of communicating directly with the public. That is alarming because social media use is so fragmented that it is dangerous to make assumptions on how many people are being reached.
A study in 2020 of United States local authority communication about the covid pandemic showed a wide range of platforms being used and the recipients were far from attentive. The author of the study, Eric Zeemering, found not only were city communications fragmented across departments, but the public audience selectively fragmented itself through individual choices to follow some city social media accounts but not others.
In fact, more people were passing information about the flood to each other via Twitter than on Facebook and young people in particular were using TikTok for that purpose. Media organisations were reusing these posts almost as much as the official information that from some quarters was in short supply.
Lesson #4: When you need to communicate with the masses, use mass communication (otherwise known as news media).
Mistakes will always be made in fast changing emergencies but, having made a mistake, it is usual to go the extra yards to make amends. It beggars belief that Whaka Kotahi staff would fail to keep their website up to date on the Auckland situation when it is quite clear they received an enormous kick up the rear end from Transport Minister Michael Wood for clocking off when the heavens opened.
Or that Auckland Transport could be far behind the eight ball after turning travel arrangements for the (cancelled) Elton John concert into a fiasco.
After spending Friday evening holed up in his high-rise office away from nuisances like reporters attempting to inform the public, Mayor Brown justified his position with a strange definition of leadership then blamed others.
Sideswipe’s Anna Samways collected a number of tweets for her Monday Herald column. Among them was this: “Just saw one of the Wayne Brown press conferences. He sounded like a man coming home 4 hours late from the pub and trying to bull**** his Mrs about where he’d been.”
Lesson #5: When you’re in a hole, stop digging.
Dr Gavin Ellis holds a PhD in political studies. He is a media consultant and researcher. A former editor-in-chief of The New Zealand Herald, he has a background in journalism and communications — covering both editorial and management roles — that spans more than half a century. Dr Ellis publishes the website knightlyviews.com where this commentary was first published and it is republished by Café Pacific with permission.