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Frank Bainimarama's government has scuttled a push for progressive constitutional reform in Fiji - a major setback in the country's return to free and fair elections, writes Nic Maclellan
In 2009, the military-backed government in Fiji led by Commodore Voreqe Bainimarama refused to hold promised elections and abrogated the 1997 Fiji Constitution. But last year the Bainimarama regime outlined a roadmap to prepare a new constitution to be adopted by a Constituent Assembly as a precursor to national elections in 2014.
Throughout 2012, a constitution commission led by Professor Yash Ghai held public consultations and received over 7,000 submissions. By year’s end, the Ghai Commission had prepared a new draft constitution to be submitted to a Constituent Assembly for scrutiny in March 2013.
But relations between the Ghai Commission and the Fiji military soured and the roadmap to a new constitution was abandoned by the regime. Police seized hundreds of printed copies of the draft constitution, reportedly ripping up the printing proofs.
The Bainimarama Government instead presented a new draft in March 2013, prepared by the Attorney General’s Department and drawing on elements of the submission from the Republic of Fiji Military Forces (RFMF) to the Ghai Commission. At the same time, the proposed Constituent Assembly was abandoned, with interim Prime Minister Bainimarama asking “the people” to pass judgment on the 2013 draft.
Initially, Fiji citizens were given just two weeks to submit comments on the draft by 5 April, with the Government announcing it would then finalise the Constitution within seven days. This timeline was later extended to 26 April, but still left little time for detailed consideration of the core document for the nation.
The whole process has been widely criticised by academics, women’s groups and opposition parties such as the Fiji Labour Party (which, like the National Federation Party, is still awaiting the outcome of investigations into their application to be registered as a party for the 2014 elections).
Critics are concerned that some of the best elements of the 2012 draft prepared by the Ghai commission have been watered down, including key rights such as freedom of expression and publication, assembly, fair employment practices and working conditions.
Many of these rights are included in the 2013 draft prepared by the Bainimarama regime, but are heavily qualified. Throughout the latest draft, basic rights can be overridden by laws which may limit the right “in the interests of national security, public safety, public order, public morality, public health or the orderly conduct of elections.” The leaves the authorities enormous sway to define “public order” in ways that would challenge core rights of assembly and expression.
A detailed analysis (pdf) of the 2013 government draft by the Citizen’s Constitutional Forum (CCF) notes that:
“The electoral system provides for a version of ‘one person, one vote, one value’ based on proportional representation for all Fijians 18 years and older and does away with communal seats. The Bill of Rights includes many rights (including non-discrimination) previously provided in 1997 and 2012, as well as some new social and economic rights. Corruption is tackled in various ways by measures like entrenching the Fiji Independent Commission against Corruption.”
However, the CCF report critiques a number of provisions in the 2013 draft that entrench the power of the military in Fijian affairs and constrain basic rights set out in previous Fiji constitutions.
The 2013 draft constitution concentrates nearly all executive authority in the offices of the Prime Minister and Attorney-General, who will control most appointments to the judiciary and key public service positions. The Prime Minister, rather than the President, would become Commander-in-chief of the armed forces and sole authority to appoint the army commander.
The draft limits the independence of the judiciary, with the Chief Justice and President of the Court of Appeal to be appointed by the Prime Minister after consulting the Attorney-General. Unlike the 2012 Ghai commission draft, the latest version removes the requirement that Fiji military courts be subject to judicial scrutiny by the Courts of Appeal.
To challenge Fiji’s “coup culture” that has seen coups d’etat in 1987, 2000 and 2006, the Ghai commission proposed that all members of the security forces must be required to refuse unlawful orders from their superiors. This provision is removed in the latest draft.
The 2013 draft also entrenches immunity for all people involved in recent Fiji coups, stating that immunity provisions “shall not be reviewed, amended, altered, repealed or revoked”.
As former USP academic Waden Narsey has noted: “People are still not understanding that the immunity being granted is not from 2006, but from 2000”, when the military stepped in after the coup led by George Speight.
In public statements, the regime has highlighted a number of progressive features of the new draft constitution, including a bill of rights that includes new social and economic rights as well as civil and political rights.
The 2012 draft included provisions that “Everyone has the right to full and free participation in the economic life of the nation” and “Everyone has the right to an adequate standard of living, which includes the right to work, and to a just minimum wage…”
However the force of these new rights is weakened in the latest draft, through the added statement that “The State must take reasonable measures within its available resources to achieve the progressive realisation of the right of every person to work and to a just minimum wage.”
Labour rights are severely restricted in the 2013 draft, which gives the government the power to limit freedom of association and regulate the registration of trade unions, collective bargaining processes, and essential services and industries.
The latest version removes a number of other progressive elements – for example, women are not mentioned once and the latest version deletes a section on “Women and Men” in the 2012 draft that set out rights to equal pay for work of equal value, appropriate paid pregnancy, paternity and maternity leave; and protections from dismissal from work during pregnancy, paternity or maternity leave.
With its emphasis on multiculturalism, the Bainimarama regime continues to oppose the re-establishment of the Bose Levu Vakaturaga (Great Council of Chiefs) and removes protection for the land and governance rights of Fijian, Rotuman and Banaban communities.
In coming weeks, the Fiji Government will reveal whether any of the critiques of the draft constitution will be taken on board. Even then, many locals are concerned that the roadmap towards “free and fair” elections can be overturned at the regime’s whim. With Bainimarama announcing that he will contest the 2014 elections (even though no political parties have yet been registered), there’s a long way to go before a return to parliamentary rule in Fiji.