Date: January 05 2013
Just before Christmas, the Fiji Constitution Commission, chaired by Kenyan constitutional lawyer Professor Yash Ghai, submitted a copy of the draft constitution to Fijian President Ratu Epeli Nailatikau. The draft constitution is inevitably a compromise document, balancing a range of views and interests and concerns, but its overall direction is clear. It seeks to restore Fiji to full parliamentary democracy. It recommends the retention of the Westminster system, with a 71-seat parliament.
Like the 1997 constitution, which was abrogated by the Fiji military in April 2009, it recommends a strong bill of rights, an independent judiciary, freedom of the media, efficient and effective public service: things which would be unexceptionable in any democratic state.
But it also recommends a break from past practices. For example, it recommends the abolition of all racial representation in parliament and election from non-racial constituencies. A proposition which seemed beyond contemplation just a decade or so ago can now be entertained because of the profound demographic transformation which has taken place in Fiji. Indigenous Fijians, or iTaukei as they are now called, make up about 60 per cent of the total population and Indo-Fijians about a third, putting an end to racial fears and phobias which hobbled Fiji politics for a century or more. All citizens are now simply called Fijian, rather than classified according to their ethnic identity.
A closed List Proportional system of voting is recommended to replace the existing Alternative Vote system. Elections will take place from four national electoral divisions, not through constituencies. The draft constitution recommends a third of the candidates for parliament should be women. The term of the parliament would be reduced from five years to four, and the term of the prime minister limited to two (that is, eight years).
The president will be a nominal head of state, with a single term of five years, elected by an amorphous Peoples' National Assembly, though how this will work in actual practice will be debated. The Fijian military has already rejected this proposal.
A hand-picked and regime-friendly Constituent Assembly will soon approve the final constitution. To take Fiji to elections promised for next year, the draft constitution recommends a caretaker administration be installed six months before the election date, to be run by politically neutral experienced administrators. The military demurs.
All the major political parties have supported the draft constitution, putting aside for the time being their quite profound political differences. Returning Fiji to parliamentary democracy is their first priority. If fully implemented, the recommendations of the draft constitution will have the potential to revolutionise Fijian politics and cut it permanently adrift from its hobbled past and disastrous preoccupation with race politics.
In Fiji, unsurprisingly, what is good for the goose is not necessarily good for the gander. The military has taken strong exception to some recommendations of the report and has sought to discredit it. The spat between the military and the commission began soon after the report was submitted to the President.
Keeping his promise to the people who had appeared before the commission, and working within the framework of the decree which governed the commission's modus operandi, including the requirement for it to make the process of consultation as transparent and participatory as possible, Ghai ordered the printing of some 600 copies for distribution to key stakeholders. Then the drama started.
Twelve policemen, apparently on the orders of the Commissioner of Police, Brigadier General Ioane Naivalarua, and with the knowledge of the Attorney-General, surrounded the Government Printery and confiscated the printed copies of the draft document. An irate senior police officer verbally abused Ghai and ordered the unceremonious burning of three printer's copies of the documents in his presence. A clearly distraught Ghai wondered what this vengeful act of vandalism might portend for the fate of his work. The Fijian military argued that the professor was acting illegally in authorising the printing of the draft constitution as his tenure as commission chairman ended when the report was submitted to the President.
In a short note circulated on the internet on January 1, Ghai rejected the claim and held his ground. The military wants Ghai charged for breaking (some unspecified) Fijian law. The campaign to malign Ghai and his work is in full gear.
The question to ask is why is the Fijian military so obsessed with keeping the draft constitution secret from the Fiji public? Was it so naive to think copies of the document would not find their way into cyberspace sooner rather than later? What did they expect from an eminent constitutional lawyer? And why discredit a commission the Fijian regime itself had set up? Whereto from here?
The regime's anger and disappointment over the contents of the draft constitution are not hard to surmise. The draft is, after all, a democratic document, while the Fijian regime is anything but. The military could not have been happy with the recommendation that it return to the barracks and operate again under normal civilian oversight. The recommendation that the tenure of the commander be for one term only would not have found favour with the military hierarchy.
The Attorney-General would have been peeved by the commission's finding that many of the decrees he authorised were defective, arbitrary and in breach of fundamental human rights. Ironically, it was the Attorney-General who was instrumental in Ghai's appointment as law lecturer at the University of Hong Kong.
The course the Ghai commission recommends is at sharp variance with the narrative woven by the Fijian military -which is in effective control of the country. They see for themselves a supreme guardian role, over and above the normal institutions and processes of government in Fiji. They are there to stay, and they will not budge. There are many in Fiji who have ridden the gravy train for the past several years and they will not voluntarily step aside for institutions of parliamentary governance to take root once again. Power concedes nothing without a struggle, and there is very little sign of that in Fiji.
Not waiting for a new constitution to come into effect and for the parliament to convene next year, the military regime has embarked on a wide-ranging program of creating a new identity for Fiji. The Queen's image has disappeared from the Fijian currency (although her framed photos hang in government offices), and plans are afoot to change the national flag. The national carrier, Air Pacific, is now Fiji Airways. These are not signs the regime in Fiji is in a hurry to go anywhere, any time soon.
The battle is truly joined. The Fijian military will have a constitution that enshrines their vision for Fiji, not any other. They want a continuing role for themselves in Fijian affairs, not retreating to the barracks. For those who yearn for a timely return to parliamentary democracy in that sadly troubled nation, the road ahead is hard.
Brij V. Lal is Professor of Pacific and Asian History at the Australian National University.
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