Fiji has had more than enough number of constitutions for a young democratic nation, in such a short span of time, since independence from Britain in 1970. We have had the 1970, 1990, 1997 and now the 2013 constitutions.
This exercise appears to be ongoing and is making our nation and its people appear to the international community — despite 55 years of independence for Fiji — that we are still searching for a soul and spirit for this nation and remain lost in the wilderness of time, not able to make our mind up as to the nature and content of our nation’s supreme document that is supposed to bind us as a nation, a community and a people living in harmony and with a national pride.
One would imagine that as a nation we as a people would be smart by now as to how we make one given such an experience. Anecdotal evidence suggests that this not the case. Fijians have many ideas about our present constitutional arrangements, but may not be sure of all aspects of the constitution making process.
One aspect they are sure about and is clearly articulated in our 2013 document is how we should go about making any changes to the 2013 Constitution legally. The framers have left no doubt as to the processes and procedures that needs to be followed for any amendments to the document, albeit not an easy task, is only possible if the entire nation is in support of such a scenario.
In this article we need to fully accept that there can be no argument as to the manner we proceed to make amendments. This issue is non-negotiable and a “done deal” and Fijians have to accept the fact that their fate in now fully intertwined with the provisions as legislated.
Today we re-visit the issue of constitution making and in so doing look at some of the problems and issues that we as a nation should have grappled with much better, than we did, when time and opportunity was given to us.
We also make general comments as to aspects of process and procedure that should be followed when a new constitution is made in any nation – not only Fiji – because at the end of the day the legislated provisions will impact directly on us – the people of the land.
This is the main reason why any nation needs a “people’s constitution”. Constitution-making process and procedure requires a national all-inclusive effort if we are to use the document as the supreme law of the land. It should fully address and allow for flexibility in its usage towards nation-building; be objective and fair; and one that is workable in practice, and easily amended upon national agreement.
A people’s all-inclusive and peoples-driven process allows for confidence-building, trust, faith and transparency between a nation’s citizens and allows for a sense of ownership and respect for any new constitution of the land.
We note that many opposed the document as it was pushed down the throats of people with malice and a complete lack of consultation and respect of the process that should have been followed. The Bainimarama regime self-imposed 2013 Fiji Constitution thus has been rejected by many and even the Rabuka government has decided that it needs to be reviewed, with due process of law. Fiji would not have been here at this crossroad had the Bainimarama regime not rushed this document and allowed the process to be followed and also allowed for community education in this area and let the 2012 Ghai Commission do its work with independence.
The in-house 2013 document written by the lawyers of the Bainimarama regime lacked an all-inclusive approach towards all facets and thematic areas, by the people, and they would probably have led to a greater acceptability of the document today. Without community education and proper direction for responses to all the facets of the thematic areas of the new constitution meant that the people’s voices were either absent or not forthcoming due to a lack of understanding of the constitution making process, institutions, legal framework and the needs for proper representations in Parliament.
Citizens, through participation, would ultimately have felt national ownership of the document. This would have guaranteed that the 2013 Fiji Constitution was respected and followed by all citizens in an inclusive manner, without the question or need of a review so early in its life cycle.
The 2013 Constitution is a product of the Bainimarama regime’s July 1, 2009 announcement towards a “Roadmap for Democracy”, that promised a transition to parliamentary democratic rule, by September 2014.
A Constitution Commission established, started work in July 2012 with a substantial program of public hearings and other chances for Fijians to submit their opinions to it. It was chaired by Professor Yash Ghai and included four other members: Professor Christina Murray, Professor Satendra Nandan, Penelope Moore and Taufa Vakatale.
The Constitution document in my opinion was completed with urgency to meet deadlines for the 2014 elections, with the draft documents subitted by the Commission literally burnt and trashed completely by the Bainimarama regime, and replaced with an in-house written document, with no relationship or similarities with the draft submission by Professor Ghai and his team.
Today no Fijian has an elected member in the Fijian Parliament, from their rural, urban, provincial, or divisional area, who represents the interest and issues from the people of the area. Despite a very large number of parliamentary representatives elected, no one person is responsible directly to the electorate and neither can Fijians go to their town and cities to a parliamentary representative, for advice, issues and problems.
Former prime minister Voreqe Bainimarama had described the country’s recent history as “a vicious pattern (of) elections followed by ineffective governance, followed by coup, followed by elections and then another coup, with the cycle continuing and Fiji’s overall situation regressing further and deeper”.
Fiji’s first two coups came in 1987 (May 14, 1987 and September 28, 1987) under a false premise by the present Prime Minister of Fiji Sitiveni Rabuka, stating that Indo-Fijians dominated the government, and that they would take away the iTaukei land; 93 per cent of which was owned by the iTaukei – despite its guaranteed security in the 1970 constitution at the time. He has promised to provide names of those behind the 1987 coup d’état, recently reported in the media, to the The Fiji Truth and Reconciliation Commission.
The first coup of May 14, 1987 disposed Timoci Bavadra and Mahendra Chaudhary — the former Fiji prime minister, led government. On September 28, 1987, Fiji’s second coup by Mr Rabuka, alias Rambo at the time, rejected the late Queen Elizabeth II as the Head of State of Fiji. Fiji’s long formed name changed from the Dominion of Fiji to the Republic of Fiji.
In 1990 the interim government promulgated a new constitution, which sought to further strengthen ethnic iTaukei control of the nation. Under this constitution the positions of President and Prime Minister could only be filled by iTaukei. Thirty-seven of the seventy parliamentary seats could only be filled by them. This meant that iTaukei retained a majority of seats in Parliament.
In 1992 the present Prime Minister, Sitiveni Rabuka, became the Prime Minister of Fiji again, under the 1990 Constitution. However, he could only do so with the aid of the Indo-Fijian dominated Fiji Labor Party (FLP) and later the National Federation party (NFP).
FLP and NFP exacted from Rabuka a speedy constitutional review, which the 1990 constitution mandated, leading to the 1997 Fiji Constitution, which was later abrogated by the former prime minister Voreqe Bainimarama in during his 2006-2007 coup.
In December of 2012, the Yash Ghai led Constitution Commission produced draft constitution intended to pave way for return to democracy with free elections in 2014, which was finally rejected by the Government on January 10, 2013, with the release of the Bainimarama government’s own in-house and without any public consultation, constitution draft, for public comment in March 2013.
This exercise was futile and just a token to show Fijians that due process was being followed, without the earlier promised people’s convention where all parties would convene in a constitutional conference.
Thus, in this manner, Fiji’s fourth 2013 Constitution was signed into law by President Ratu Epeli Nailatikau on September 6, 2013, coming into effect immediately. On a democratic framework, it is a copied document in my opinion from an African nation, with marked changes towards an improved blueprint towards democracy, like the incorporation of the Bill of Rights, one person one vote but the removal of constituency style of voting and a new style of elections, in which a person could go to Parliament with 100-200 votes compared to another person with 5000 votes, as long as his or her party managed to get that portion of the total votes cast during the elections.
Whatever the case, it is my view that the 2013 Fiji Constitution needs major overhaul and review with a complete rewriting, to incorporate further public inputs, to allow for its acceptance and respect by a wider group of Fijians; especially when we note that most Fijians failed to identify issues during their public submission to the Yash Ghai Commission, that a constitution should normally deal with.
During the Yash Ghai Constitution Commission public consultations, Fijians were unable to fully make submissions on most of the 17 required thematic areas. The Constitution Commission data base showed that though 82 per cent (82 in 100) of Fijians mentioned Human Rights in their submissions, only 6 per cent (6 in 100) mentioned Language.
80 to 99 per cent of the people (80-99 in 100) failed to mention constitution-making processes, citizenship and ethnicity, language, electoral system, leadership and integrity in public life, system of government, accountable government, great council of chiefs, iTaukei Affairs, military, coup culture, immunity/amnesty or transitional arrangements, in their submissions.
The above situation may also give traction towards an argument for the need of amendments to the present constitution, where deficiencies are being noted. Some deficiencies are due to the result of very limited public education, awareness or training, and thus the oral submissions made at the public consultation venues lacking substance.
Some research at the time with Fijians, who had made their submissions, revealed that many did not understand the role constitutions play in a society, and many had not even read the previous constitutions. Many people also appeared not to know much about the 2012 consultation process, and some said that they heard about the Commission’s visit to their community, in passing, through the media or from other people.
It was also noted at the time, that most of the oral submissions made by Fijians dealt with public policy issues such as access to water, roads, health, education, wages, work conditions, land and so on rather than institutions of the state.
It is sufficient to say that it is extremely important that any constitution making process places greater emphasis on citizen participation. Only after full civic education and awareness, should submissions be accepted, ideally to allow the people to be able to address all the 17 thematic areas 1.
This was not the case in 2012, and thus our “people’s constitution” – the 2013 Fiji Constitution – is probably that much poorer today from a lack of people’s input in most thematic areas. Not only this, but it also appears that the Bainimarama regime thought that they would be in power for life, as the 2013 Fiji Constitution written in-house, on a very close scrutiny of the Bill of Rights Chapter 2 for example, will show that our Constitution lacks an independent prescriptive approach, again and again, over the entire document, suggesting that its declared entrenched freedoms and rights, and other aspects of the law, has a caveat which negates all that it espouses to be.
The caveat being that terms like: (a) ‘Subject to the provisions of this constitution and such other limitations, as prescribed by law’ (b) A law may limit, or may authorise the limitations of, the rights and freedoms…’ (c) A written law shall prescribe..’ are used all over the 2013 Fiji Constitution, giving unfretted avenues of abuse of powers that may not be fair as the constitution remains silent, in many areas where it needs to spell out terms and conditions, so that no unfair legislations, can be passed by a rogue government in power, to take advantage of these types of free wheeling freedoms to write the law as they please, making a mockery of the document.
Any future changes should not ignore the great work done by the Ghai Commission and their draft copy submitted, but refused by the Bainimarama, should at least form part of the initial starting point from where future refinements can be canvassed with a much educated and alert public to all the issues, using a check list, where all members get a chance to address all the required aspects of the new constitution -thus not making the same mistakes of the 2012 exercise.
The inclusiveness in all facets and thematic areas of the people, during the process of constitution-making, will lead to greater legitimacy and to a feeling of national ownership of the document; therefore, guaranteeing that the Constitution would be respected and followed without the question of constant review, like the 2013 document.
Any amendments to the existing 2013 Fiji Constitution, needs to critically revisit, review, and reassess some of these issues:
(1) The refusal to allow our elected representatives to speak in Parliament in their own mother tongue and/or the main Hindustani and/or iTaukei language to express themselves, especially so for elected representatives who may not be able to express themselves clearly and eloquently in the English language.
Any constitution of the nation to disallow and take away the fundamental right of its people, and in particular its indigenous iTaukei people, to express themselves in their own iTaukei language in their own homeland and their own Fijian Parliament is a gross violation of their fundamental democratic rights, and against the spirits espoused in The United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the General Assembly on Thursday, 13 September 2007.
(2) The very high threshold of 75 per cent of vote count required from all the registered voters, and not 75 per cent of votes from the total votes cast at the referendum, is a major impediment towards any constitutional amendment bill ever being passed.
(3) The issue of proportional representation needs further scrutiny and public discussion after a full public awareness programme is undertaken, to choose the best method of electing our MPs to parliament. Presently people with 100-200 votes are sitting in parliament, when others with ten times more votes are excluded from entering the parliament under the proportional representation type of selecting our elected representatives.
(4) The lack of freedom of conscience and vote by our elected representatives, who presently have to be always “loyal to their party” and who can be removed from the Parliament for expressing their own democratic rights, if his or her views and vote are opposed to that of their party under which they were elected.
(5) The lack of representation to the parliament by the people who live in divisions, provinces, towns, villages to allow for people’s real and true representations of their issues and problems in parliament, with a lack of any district electoral office where the public can go to see their members of parliament, should they need help.
Presently the entire representatives can be allowed to stand for elections from any part of the nation, without regard to their area of residence and neither with any accountability to the people -the term a ‘Peoples Government’ is just a fallacy.
Fiji has had more than enough number of constitutions for a young democratic nation, in such a short span of time, since independence from Britain in 1970. It appears certain that we are at the cusp of the fifth constitution, with a new 2027 Fiji Constitution – which means one constitution every 11 years for our young nation. It is time for our young nation to learn from history and engineer a lasting document to the satisfaction of the nation at large.
n DR SUSHIL K. SHARMA is a former aviation meteorologist for the British Aerospace, Bahrain Meteorological Service and the Royal Saudi Air Force. He is a WMO accredited Class 1 professional meteorologist and a former Associate Professor of Meteorology of the Fiji National University. The views expressed are that of the author alone and not The Fiji Times