The Fiji government on Thursday released a new constitution, which will come into effect in September paving the way for elections. The Prime Minister, Frank Bainimarama, also announced his intention to form a political party and stand for election. This will be Fiji’s fourth constitution since independence in 1970. The Bainimarama government has been flagging a new constitution since 2009, when it abrogated the 1997 Constitution, dismissed the judiciary, and committed to holding elections in 2014 (it had previously committed to hold election in 2009). Those actions were in response to a Court of Appeal ruling that the military had acted illegally in seizing power in 2006 (commentary on the new constitution from one of the Court of Appeal judges can be found here) .
A key reason given for delaying elections until 2014 was the need for a new constitution. The Bainimarama government established the Constitutional Commission to draft the new constitution, and appointed as its head a well-known international legal expert, Professor Yash Ghai. But the much-publicised consultation process led by Ghai was increasingly rebuked by Bainimarama, culminating in the public release of Ghai’s draft constitution against the wishes of the military in December 2012. The Constitutional Commission was subsequently dissolved and printed copies of the constitution burned.
The government on Thursday released the constitution that it has prepared. A draft [pdf] was distributed in March, and there are some notable changes in the latest version with respect to command of the military, protection of indigenous land, and the establishment of the Constitutional Offices Commission (described below). The new constitution is also very different to the constitution prepared by Yash Ghai.
Some key features of the constitution, and differences with earlier drafts, include:
Parliament – The new constitution establishes one electorate for all of Fiji (a relatively rare feature of democracies, but one that exists in Israel and the Netherlands). The Ghai constitution had proposed four electorates. The new constitution, like the Ghai constitution, is based on the principle of one-person, one-vote, and eschews the race-based electorates that had existed previously. Elections will be held every four years. Neither constitution made reference to the Great Council of Chiefs, an indigenous body that has held considerable power since independence, but which was abolished by the Bainimarama Government in 2012.
Military – The draft constitution distributed in March had appointed the Prime Minister as Commander-in-Chief of the military. This has changed in the constitution released on Thursday, in which the President performs a ceremonial role as Commander-in-Chief of the military. The President appoints the commander of the military forces, with advice from the Constitutional Offices Commission (see below). Both constitutions differ to arrangements under the Ghai constitution, where cabinet was to appoint a commander of the military for a single 5-year term.
Constitutional Offices Commission – The new constitution establishes the Constitutional Offices Commission, which will play an important role in appointing the head of the military, police, human rights commission, electoral commission, public service commission, and various other institutions. The Constitutional Offices Commission is unique due to its membership. It is chaired by the Prime Minister and includes various government nominees. But it also includes the leader of the opposition and an opposition nominee. This is reminiscent of provisions in the 1997 Constitution for cabinet to include members of opposition parties (a provision that was ignored for many years).
Land – The new constitution protects indigenous Fijian land. This is a notable change from the government draft that was distributed in March, which had no such provisions, and broke with both past constitutions and the draft prepared by Yash Ghai.
Interim arrangements – The Ghai constitution included a lengthy section on interim arrangements prior to an election, which would have involved the military (and Bainimarama) stepping down before elections are held. Not surprisingly, the constitution drafted by the Fiji government includes no such provision.
State of Emergency – The new constitution gives the Prime Minister power to declare a state of emergency at the recommendation of the heads of the military and police. Parliament must approve the state of emergency for it to continue beyond 48 hours (or 24 hours when parliament is sitting). Authorities have broad powers under a state of emergency; people can be detained without charge for 7 days and without legal review for one month. In contrast, the Ghai constitution limited the ability of authorities to breach human rights during a state of emergency; required emergency legislation to meet Fiji’s commitments under international law; and specified that a state of emergency could only be declared by the National Security Council, which included key ministers, heads of all security forces, and the opposition leader.
The following comment is not correct as regards the makeup of the government after the 1999 election: `This is reminiscent of provisions in the 1997 Constitution for cabinet to include members of opposition parties (a provision that was ignored for many years)’.
The provision was not ignored in May 1999 and for much of the following year. Prior to the election of that year the then PM and leader of the majority ethnic Fijian party, Sitiveni Rabuka said he and his party would not accept being a member of the governing coalition if his party was in the minority. That is, he would not accept the entitlement under the 1997 Constitutional Provision intended to have all parties represented in the government. When the SVT was decimated at the poll but retained a small number of seats Rabuka stuck to his pre-election statement. This lead to a fiery meeting of the SVT, with MPs led by now Foreign Minister Ratu Inoke Kubuabola arguing against Rabuka’s stance. (My source for this account was a student in a class I taught at USP, who was present at the meeting and holds a substantial position in the current regime.)
Rabuka was then kicked out of the party to a position in the Great Council of Chiefs. Kubuabola and others spent much of the next year – until early 2000 at least – trying to join the government and obtain key ministerial positions. Why their efforts did not succeed and when this continuing marginalisation became a factor which led to the takeover of parliament in May 2000 remains one of the most intriguing and under-examined matters of Fiji’s recent political history.
Thus far from the provision being ignored it played a major part in what occurred before and after May 1999, and arguably affected what now exists in Fiji. The moral of the story is that no matter how well drafted what constitutions intend to happen often does not do so. .
Scott – what your USP student told you was inaccurate. Rabuka’s party, the Soqosoqo Vakavulewa ni Taukei (SVT) did not demand to be granted a majority in cabinet but the party did make a series of rather extravagant demands as the price for inclusion in the cabinet that the Supreme Court later in 1999 judged to amount to a refusal to participate. The true story is told in the Supreme Court judgment on the case that was later brought by SVT party leader Inoke Kubuabola – see http://www.paclii.org/fj/cases/FJSC/1999/8.html. Also if you look at some of the later court judgments on breaches of the power-sharing provisions, they at one point revisited that decision and suggested that the court might better have ruled otherwise.
A very reasonable constitution. Lets road test it first during the 2014 Election. Minor adjustments could be made through new government of the day as the country progresses. All the best, love Fiji my beloved country.