A few months ago, international observers would have been delighted to see the front-page of the The Fiji Times headline (January 10, 2024) “Rabuka: No One Is Above The Law“.
Sadly, no one from the Fiji Law Society has pointed out that this statement was blatantly false in Fiji given that under the 2013 Constitution there are hordes of people to whom the law will never ever apply, whatever the crimes they may have committed.
Why are there no demands from the Fiji public to encourage the Rabuka Government to prioritise the re-establishment of a credible and consistent “rule of law” that can be built upon for their and their children’s future?
Perhaps the Fiji public is more interested in the alleged sexual antics of Cabinet ministers suitable for David Attenborough’s documentaries on the sexual behaviour of alpha females and males.
But the Fiji Law Society must surely see the urgent need for a new Constitution Review Commission (CRC) which can include nominees of the current Government and Opposition (hopefully including knowledgeable local experts like Richard Naidu and Daniel Fatiaki), and a constitutional expert each from Australia and New Zealand for greater credibility.
The new CRC will have a starting advantage in that it can (and should) draw on the considerable work already done by the Yash Ghai Commission after Fiji-wide consultation (which need not be repeated, a major cost saving).
This commission would begin by asking the elephant in the room question which the currently befuddled Rabuka Government is too busy to ask: what is the “Rule of Law” in Fiji” today? Is it the 2013 Constitution holus-bolus?
Is it whatever the current Fiji judiciary and legal authorities decide it is, as they dither around from day to day, picking and choosing the cases they wish to prosecute, in their own sweet time, but still using the flawed 2013 Constitution?
Or, will the CRC decide (as I humbly believe) that it is still the 1997 Constitution, which must be revised drawing on the Yash Ghai work, with a tweaking of the electoral system required before the next election)?
Above all, given that the legitimacy of the revised constitution must come from the people’s elected representatives, it must be approved by the current Parliament.
I remind that the United Nations states clearly that there where the rule of law is strong, so also is the economy, the country is more peaceful, more educated and has generally higher average life expectancies.
Sustainable Development Goal 16.3 Target is to “Promote the rule of law and ensure equal access to justice”.
I remind readers that my Volume 3 of community education articles Our Struggles for Democracy in Fiji: Rule of Law and Media Freedom (2022) and Volume 4 (Towards a Decent Fiji, Section I “The Changing of the Guard”) both available at the USP Book Centre, dealt with many of the issues discussed here.
Understanding the ‘rule of law’?
In this age of the internet, there is absolutely no excuse for any ordinary citizen to not know what is universally meant by “rule of law”.
A Google search of the words “rule of law” throws up more than two billion results. I recommend the following three sources: (a) Rule of Law Education Centre, an Australian treasure house of information; (b) website of the NZ Legislation Design and Advisory Committee; and (c) World Justice Project.
I believe that Australian and NZ theory and practice may be most useful for Fiji given our common colonial origins in British law (the Magna Carta), the importance of these two neighbours in our economy and our common geostrategic future.
Australia and NZ, Fiji’s most important donors, may also be able to assist the Fiji Government in resolving this vexatious constitutional issue, without any hint of political bias that will inevitably be made against nominees of the current Rabuka Government and current Opposition. I explain the World Justice Project Index separately as it can help ordinary Fiji people to understand how the “Rule of Law” (or its absence) affects their daily lives, how badly Fiji was under the Bainimarama/Sayed-Khaiyum regime and still is in some ways under the Rabuka/Prasad/ Gavoka Government.
Where did our constitutional mess start?
Sadly, Fiji’s political leaders (with perhaps the exception of the late Jai Ram Reddy) whenever they lost political power through elections, have been only too willing to trash the existing rule of law and create a new one, to suit their own personal ambitions and goals. Fiji’s post-independence 1970 Constitution unfortunately was designed to give an advantage to indigenous Fijians and “Others” (minority Europeans, Part Europeans and Chinese) over the majority Indo-Fijians. But when the 1987 Elections kicked out Ratu Mara’s Alliance Party, the result was the 1987 Rabuka coup and the abrogation of the 1970 Constitution. Mr Rabuka’s Manueli Commission then designed a new biased 1990 Constitution which brought in the SVT government led by Mr Rabuka himself. But a reformed Mr Rabuka and Mr Reddy then appointed the Reeves Commission (Sir Paul Reeves, Brij Lal and Tomasi Vakatora) whose report formed the basis of the 1997 Constitution approved by the Parliament. It’s only weakness was a total lack of proportionality which I pointed out while I was in Parliament (The Fiji Times, November 1 and 2, 1996) and that came back to bite Mr Reddy and Mr Rabuka. The 1997 Constitution also had an element not recommended by the Reeves Commission which was a multi-party Cabinet requirement, which the winning FLP in 1999 did not make use of and the result was a 2000 coup following which the RFMF refused to reinstate Chaudhry’s government. Some tried to abrogate the 1997 Constitution, but were denied by the courts. A new Qarase government was then formed after the 2001 elections which also failed to make use of the multi-party Cabinet provision. But after the 2006 elections Mr Qarase did form a multi-party government between SDL and FLP (except that Chaudhry strangely did not join). But by that time, Mr Bainimarama was under investigation by Police Commissioner Andrew Hughes for allegations of serious crimes, the then FLP presidentcalled on the RFMF Commander to stage a coup, and the 2006 coup occurred and strangely, FLP’s Parliamentary leader, Mr Chaudhry, soon joined the Bainimarama Government as Finance Minister. Mr Bainimarama also tried to abrogate the 1997 Constitution, but he was turned down definitively by the 2009 Court of Appeal. Mr Bainimarama went through two charades at drawing up new constitutions to suit himself. The Charter exercise with national consultations led by John Samy failed when the People’s Charter declared that the 1997 Constitution was supreme. Then there was a more credible Yash Ghai Draft Constitution (formulated by the Bainimarama appointed Yash Ghai Commission after massive public consultations). But that was also rejected by Mr Bainimarama and Mr Sayed-Khaiyum for reasons you can read about in my Volume 3 (Our Struggles for Democracy, Rule of Law and Media Freedom) (Reading 64 “Why the Yash Ghai was trashed” censored in Fiji) Then, out of nowhere, with no public discussions, appeared the 2013 Constitulaw” by Ratu Epeli Nailatikau, a nonelected President appointed by Mr Bainimarama himself. How farcical that no Parliament or Referendum has ever approved the 2013 BKC, but it states that any changes to the 2013 BKC must require a 75 per cent majority in the elected Parliament, and following that, a 75 per cent majority in a referendum. Animal Farm material indeed. But given our focus on Mr Rabuka’s statement “No one is above the law”, the 2013 BKC has astonishing “immunity” provisions which allegedly can never be changed by any future parliament: i.e. unknown hordes of people will never be subject to the “Rule of Law” for unknown crimes they may have committed!
The immunity provisions in the 2013 Constitution
Most members of the public quite incorrectly think that the immunity in the 2013 BKC only covers Bainimarama’s 2006 coup and events up to the 2014 Elections. But the immunity provisions ominously go further back and may be rearing their ugly head soon if there ever is a police inquiry into the request by the son of the late CRW soldier Kalounivale. The 2013 BKC restates the immunity granted by Decree 18 of 2010 (Limitation of Liability for Proscribed Political Events) covering the military, police and prisons staff for events associated with the 2000 attempted coup and mutiny, and also, “all dialogues, discussions, correspondence between the Fiji Military Forces and the Government between September 2001 to December 2006”. Wow. I remind, while hordes of people were allegedly above the law, the Bainimarama Government was jailing deposed Prime Minister the late Qarase for alleged crimes such as not declaring conflicts of interest twenty years earlier. Apathetic Fiji stood by and watched this gross injustice take place. A corporate giant was also jailed for minor conflicts of interest in his company selling a clock to Post Fiji of which he was chairman at the time, a challengeable conviction festering on to this day. Clearly, under the 2013 Constitution, the “Rule of Law” does not apply equally to all and still does not to this day, whatever Rabuka’s grandiose assertion as the following exposition of the Rule of Law Wheel and the Magna Carta illustrates.
Rule of Law Wheel and the Magna Carta
Any Google search will throw up a fascinating teaching and learning device: the “Rule of Law Wheel”, usually presented alongside the “Magna Carta” universally acknowledged in the West as the solid foundation of the modern concepts of constitutional Rule of Law (see diagram). The Rural of Law Wheel has in the centre what Prime Minister Rabuka said on 10 January 2024 “No one is above the rule of law” and that the law is applied “equally and fairly to all”- rulers and the ruled. i.e. there can be no immunity granted to anyone. The Magna Carta established, among other principles, that the despotic English King John was not above the Rule of Law and must follow it, as must the subjects under his rule. The Fiji Times readers can watch an excellent educational video at this site: https://www.ruleoflaw.org.au/ what-is-therule-of-law/ We can compare the 2013 Constitution and the 1997 Constitution as we know them in practice.
Comparing the 1997 Constitution and the 2013 BKC
You can examine the essential components around the “Rule of Law Wheel” All of which must be followed without any exceptions, if the wheel is to roll along smoothly. The Fiji Times readers can themselves compare the 1997 Constitution with the 2013 Constitution both as practised by the Bainimarama government between 2013 and 2022, and the Rabuka Government between December 2022 and today. The readers can decide for themselves, which genuinely represents the “Rule of Law” with a solid known foundation in the will of our people and their elected representatives in Parliament, and which is a farce building upon quicksands according to the hidden agenda of the Bainimarama Government in 2013, and continued today according to the agenda of unknown advisers to Mr Rabuka.
What to do?
Of course, Fiji’s legal experts can continue to offer amusing expert advice to the Fiji public, as Richard Naidu did over his breakfast cereals (“Rule of Law- Maybe a time for Aiyaz to reflect” (The Fiji Times January 28 2023). But the bread and butter issues for the nation and the future generations need something more than the satirical putdown of Mr Sayed-Khaiyum (the architect of the 2013 Constitution) and more from the Fiji Law Society whose responsibilities are broader than that of individual lawyers. The Fiji Law Society should be pushing the Rabuka/Prasad/Gavoka Government and the Parliamentary Opposition Fiji- First party for a bipartisan sponsorship of a new Constitution Review Commission (CRC). To ensure sustainability, it could draw upon nominees of the current Government and Opposition (hopefully including knowledgeable local experts like Richard Naidu and Daniel Fatiaki), and a constitutional expert each from Australia and NZ for greater credibility. The new CRC can draw also on the Draft Yash Ghai Commission Report. One element the new CRC will have to recommend is a revised electoral system which retains the current proportionality advantage, while going back to local constituencies, as exists in the New Zealand Electoral System. I have not only recommended such as system this in numerous The Fiji Times articles, but ran a practical workshop in 2012 for the Yash Ghai Commission described in my Volume 3 Our Struggles for Democracy in Fiji: Rule of Law and Media Freedom (Reading 60 “Narsey Electoral Proposal to Yash Ghai” (2012)) The huge problem has always been that narrow-minded politicians currently winning will craftily ask: why bother changing? And so the legal mess will continue for Fiji, the economy will stutter along, poverty will increase, foreign and local investors are discouraged, while the educated and skilled people will keep emigrating to greener pastures where there is a “Rule of Law” that everyone is genuinely subject to, without exceptions.
PROF WADAN NARSEY is one of the region’s senior economists and a regular commentator on political and economic issues in Fiji. The views expressed in this article are not necessarily the views of The Fiji Times.
