July 20, 2012
Fiji Constitution Commission: Press Statement
19 July 2012
The Constitution Commission notes the promulgation of two Decrees relating to the process for drafting a new constitution for Fiji that was announced by the Prime Minister on 7 March.
The Decrees deal with the Constitution Commission and the Constituent Assembly and spell out their role and procedures. This is an important step in adding certainty to the process. The Preamble to each Decree reasserts the Prime Minister’s announcement of an inclusive, participatory and transparent process.
The Decrees give the Commission and public much greater clarity on the process.
In addition, the Decree on the Constitution Commission temporarily suspends the application of section 8 of the Public Order Act to meetings other than those held on public roads, in public parks or gardens and in sporting arenas. That means that while the Commission is doing its work people will not have to secure permits to hold meetings. Furthermore, the Constitution Commission Decree protects people who appear before the Commission to make a submission from legal proceedings against them for anything that they say that relates to the work of the Commission.
Nonetheless, there are a number of aspects of the Decrees about which we are concerned.
First, although the Constituent Assembly Decree lists some of the groups that will be represented in the CA (such as political parties, trade unions, women, the military, and civil society, etc), it gives the Prime Minister full control over the size and composition of the Constituent Assembly.
There is no indication of how many members will be drawn from each sector or what other sectors might be included. There is also no provision giving the groups that are to be represented a say in who should represent them in the Assembly. The Prime Minister will also appoint the Speaker of the Assembly.
These arrangements effectively mean that the essential principles of democracy are ignored and the independence of the Assembly is negated. In the light of the fact that members of the present government may wish to compete in the forthcoming elections, it is particularly important that they should not control the process that will, among other things, set out the rules for the elections. This will undermine the credibility of those elections.
Secondly, the Decrees require a broad immunity provision for the 2006 and earlier coups to be entrenched in the new constitution. Among other things, the new constitution is to grant the same, broad immunity for actions up to the first meeting of a new Parliament to members of the government, administration and security forces as was granted by decree in 2010. This type of prospective immunity is most unusual, perhaps unique, and, we believe, undesirable. The only exception is that the new constitution is not required to give immunity for common crimes (such as murder and assault) committed after the date of issue of these Decrees.
The Commission recognizes that immunity has been given in the past and that the immunity required in the new Constitution is similar to those immunities and it also understands that the issue of immunity must be considered in the process of transitioning to democracy. However, we are concerned that the people of Fiji have not been consulted in any way on this important matter.
We believe that a better approach would be for the question of immunity to be part of the constitution-making process. If immunity was part of the process, it could be discussed through submissions to the Commission and debate in the Constituent Assembly. Then a solution could be reached that citizens believe would promote the transition to democracy and contribute to a sustained democracy as envisaged in the Preamble to the Decrees.
Thirdly, although the temporary suspension of the requirement of permits for meetings is an important step forward, we are concerned that the current atmosphere in Fiji is not conducive to an open process in which Fijians can debate their future properly. Controls over the media and the wide reaching powers of the security forces in this regard are particularly worrying, as is the fact that generally people have no redress for actions taken against them by the state because the right of access to the courts has been removed.
An important part of the process for constitution making should be the bringing together of all the people of Fiji to discuss freely, and agree on, the future of their country. It should be an occasion for national reconciliation, acknowledging the violation of human rights and other abuses of power, and to commit the nation to a vision of Fiji based on democracy and respect for human rights, and a determination to overcome the divisions of the past. This task requires the full participation of the people in the process, and the freedom of their representatives in the Constituent Assembly to negotiate a settlement that enjoys wide support in the nation.
Yash Ghai (Chairperson)
Peni Moore (Commissioner)
Christina Murray (Commissioner)
Satendra Nandan (Commissioner)
Taufa Vakatale (Commissioner)