Analysis: Constitution of Fiji

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Coel Kirkby

Melbourne Law School

Fijians will enjoy their first Constitution Day on 7 September next year. The new holiday will commemorate the 2013 constitution, the country’s fourth since independence in 1970. Last year Fijians voted in the first credible democratic elections since 2006. Over 80 per cent of registered voters turned out and it was the first voting experience for most young Fijians. But celebration plans may be spoiled by a wave of arrests in the interior of Viti Levu, Fiji’s largest island. Police have arrested nearly seventy men on charges of sedition relating to military-style training and plotting to establish an independent Christian state. Prime Minister Bainimarama, the former military forces commander who led the 2006 coup, declared that ‘there will be no so-called independent states established in Fiji.’

The police have been assisted by 140 soldiers who were preparing to join the UN Disengagement Observer Force in Golan Heights. Commander Colonel Sitiveni Qiliho justified using soldiers in a civilian criminal matter by appealing to the new constitution. ‘Our constitutional role is clearly stipulated,’ he argued, ‘that […] the security and well being of Fiji and all Fijians is the responsibility of the [Republic of Fiji Military Forces] as in the constitution’. While the 2013 constitution contains both the promise of a harmonious future and the threat of an authoritarian govern, ultimately the future of constitutional government in Fiji will depend on the military’s tacit consent.

A brief history of coups and constitutions

The British ruled Fiji’s two main communities for a century. The ethnic Fijians (which I will refer to as ‘Taukei’), the smaller community until recently, dominated the Indo-Fijians, descendants of several waves of bonded labourers and other immigrants. The British governed the Taukei community through a form of ‘indirect rule’ by chiefs administering customary law and the communal ownership of land. The Indo-Fijian community, in contrast, were ruled in a subordinate position through a complicated system of communal representation skewed to over-represent Taukei and the economic necessity of leasing land for sugar cane farming from Taukei owners.

The Britain granted Fiji its first constitution in 1970. It was a standard Westminster-style constitution with a bicameral legislature and a bill of rights, but also contained distinct ‘communal’ features that perpetuated the colonial division. Most importantly, the legislatures were elected and nominated along ethnic lines. This system worked for nearly two decades until it was upset by an alliance between the National Federation Party (Indo-Fijian) and Fiji Labour Party (multi-ethnic). Three years later the government was overthrown by in two successive coups by the Taukei-dominated military, which then imposed the 1990 constitution to re-establish and intensify Taukei hegemony. The constitution also concentrated power in the office of prime minister and granted immunity to the military.

Five years later the government created a constitutional review commission to recommend a new document that would promote ‘racial harmony and national unity and economic and social advancement of all communities, and bearing in mind internationally recognised principles and standards of individual and groups rights’. The Reeves Commission made the key recommendation that the two communities should be equally represented in state institutions. The 1997 constitution did not go so far, but had three key elements that moved away from radical communalism. First, the legislature retained a strong communal bias. While the House included 25 open seats, the remaining seats were elected by communities: 23 Taukei, 19 Indo-Fijian and 3 ‘general’. The Senate also remained dominated by Taukei members. Second, in a new experiment, the executive was made subject to communal power sharing with cabinet ministries allocated in proportion to the number of seats a party held in the House. Third, the constitution introduced a strong bill of rights for all citizens, as well as retaining specific protections for Taukei land and custom.

The first elections under the 1997 constitution returned the Fiji Labour Party, an Indo-Fijian party, with an absolute majority in the House. Prime minister Mahendra Chaudhry tried to appease Taukei parties by awarding them 11 of 18 cabinet posts. A band of Taukei ultra-nationalists tried to oust the government in a third coup, but this was put down by the military under Bainimarama. New elections secured a Taukei majority under Soqosoqo Duavata ni Lewenivanua, a Taukei party. In constrast to Chaudhry, the new prime minister, Laisenia Qarase, refused to abide by the spirit of executive power-sharing and also pushed a strongly pro-Taukei program. In 2006 the military under Bainimarama ousted SDL in a fourth coup, eventually abrogating the constitution in 2009 after promising and failing to hold elections to return to democratic government.

The 2013 constitution

The 2013 constitution was enacted by the Bainimarama government after it had rejected an earlier draft constitution produced by its independent Constitution Commission chaired by Professor Yash Ghai. The new constitution was imposed without meaningful consultation. While it drew on the text of the 1997 constitution and the Ghai draft, it introduced four key new features. The first two were radical breaks from the past, but the last two intensified harmful colonial-era legacies.

First, the constitution abolished the Senate and instead created a unicameral legislature. The new Parliament was composed of 50 members elected by a system of open-list proportional representation from a single, national constituency. This abolished the long-standing communal principle in favour of a unified citizenry. In the 2014 elections, Bainimarama’s new political party, Fiji First, won nearly 60 per cent of all votes (Bainimarama himself secured an impressive 40 per cent), while SODELPA, the new Taukei party, came a distant second with 28 per cent. Professor Jon Fraenkel’s detailed analysis concluded that the elections radically altered Fijian politics. For the first time, nearly half of all Taukei voters have abandoned the main ethno-nationalist party, and Indo-Fijians also overwhelming left their old ethnic parties in favour of Fiji First.

Second, the constitution included an extensive bill of rights, including new socio-economic rights. However, these are hollow rights. Most rights contain specific exceptions and section 6(5)(c) is a general clause, which allows any restriction that is both ‘necessary’ and passed as law. More problematic is section 1703, which states that all decrees passed since 2006 will remain in force until repealed or amended, and are not subject to judicial review. In short, decrees as superior laws that trump other rights protected by the constitution. Since many of the decrees limit or deny specific rights, the effect is to nullify many constitutional rights.

Third, the constitution continued the trend to concentrate executive power in the office of the prime minister. The prime minister has extensive new powers to appoint, directly or indirectly, the top appellate judges and a majority of members in each of the ‘independent’ constitutional bodies entrusted with protecting the constitution (as well as remove and set remuneration for these office-holders). Thus the prime minister has become a super-office without meaningful checks. Even future elections will be controlled by appointees of the prime minister. Ultimately, the only check on the prime minister is an extra-constitutional one: the military.

Finally, the constitution continued the tradition of granting the military a special role as ultimate upholders of security and stability (as interpreted by it). Section 131(2) grants the military ‘overall responsibility … to ensure at all times the security, defence and well-being of Fiji and all Fijians’. Chapter 10 of the constitution also grants the military extensive and unamendable immunity for all coup related actions.

Fijian constitutionalism and its future

The 2014 elections raised both hopes and fears for the future of constitutional and democratic government in Fiji. Ratu Joni Madraiwiwi—a laywer, former vice-president and Roko Tui Bau (a Taukei chief)—reserves judgment on whether it marked the end of communalism. He reminds us that the results were as much a pragmatic calculation by Indo-Fijians and some Taukei as it was a belief in Fiji First’s mantra of development and ‘common and equal citizenry’. The new members of Parliament, most first time parliamentarians, have embraced their new roles. The new government appointments to the independent bodies have usually met with qualified approval. The bill of rights remains untested, especially the new socio-economic rights.

However the 2013 constitution creates the means for an authoritarian state run by the office of the prime minister (with the tacit support of the military). So far the Bainimarama government has not fully exploited these powers. For example, the government continues to tolerate some long-delayed scrutiny of government spending through a Standing Committee on Public Accounts controlled by the opposition parties—despite some fiery exchanges. The point is rather the worry that a future government that loses popular support well be tempted to prolong their rule by exploiting the constitution’s concentration of power—exacerbated by a practically impossible amendment procedure (three-quarters of MPs, and then three-quarters of all registered voters in a referendum).

Whether a future government will exploit the constitution’s authoritarian structure will ultimately depend on Fiji’s military. The 2013 constitution sought to break ethnic communalism and create a single nation, but the glaring exception remains the military: 99 per cent of its 3,500 active soldiers and 6,000 reservists are Taukei. Since 2006 military officers have also infiltrated the higher reaches of the civil service and retained their position (though after resigning their military positions) after the 2014 elections. Even more tellingly, one of every five MPs elected in 2014 were former military officers.

As Fiji’s first Constitution Day nears, the role of soldiers investigating alleged rebels approaches is a timely reminder that the military has not renounced its role as the extra-constitutional arbiter of Fijian politics. The future of the 2013 constitution will depend on if and when the military decides to intervene. As stated in its submission to the Ghai Commission, the military saw itself as ‘ the last bastion for law and order in Fiji’ with an extra-constitutional responsibility for ‘the governance of this country, ensuring that peace, prosperity and good governance is practiced and adhered to’. Unless it can be subordinated to constitutional rule, the Fijian military will perpetuate its schizophrenic identity as peacekeepers abroad (Lebanon, Sinai and East Timor) and coup-makers at home.

By Dr Coel Kirkby, Research Fellow at Melbourne Law School.