Prof Wadan Narsey - Election issues, Bulletin 3: Constitution and contentious decrees

5 March 2014

The Bainimarama Regime has purportedly made numerous changes to the laws of Fiji, including the imposition of its own constitution, the 2013 Bainimarama/Khaiyum Constitution (2013 BKC).  These laws are “operational” (i.e. being implemented by the judiciary) in the absence of any significant physical opposition or popular uprising from the people of Fiji.

Many voters will however have strong views on some of the changes implemented by the 2013 BKC.  Voters and political parties should not waste their energies on  debating the many changes which a future elected parliament will have every moral and lawful authority  to change.

Voters simply need to know the stand of the political parties on the following:

Issue 1: Which constitution do we have now?
The average voters do not have a clue and probably do not care:  they will simply go along with the Bainimarama Government who control the judiciary, army and police.

The voters will take part in the elections under whatever electoral regulations this regime decides on.  This is the pragmatic position taken by the existing political parties who simply want the return of an elected  parliamentary government.

But the ultimate judge of the validity of a constitution has to be the judiciary, which has not made, or has not been allowed to make a  judgment, following the definitive 2009 Court of Appeal.

The current situation appears confusing partly because the Ghai Constitution Commission made the critical mistake of attempting to present a “new” draft constitution, rather than an “Amendment” of the 1997 Constitution.   Readers may wish to read the following which was part of my Final Submission to the Yash Ghai Commission.

Any constitutional revision, must itself abide by the “rule of law” already existing.  The public can recall the words of the current Chief Justice (Anthony Gates) in his ruling in the case Koroi v Commissioner of Inland Revenue (2001).

“It is not possible for any man to tear up the Constitution. He has no authority to do so.  The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji…  Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces .. and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”

Technically, the 1997 Constitution is still in place.  Therefore all contentious decrees or actions of the Bainimarama Government since December 2006 must be verified by a future elected parliament, or changed,  as explained in my Submission to the Ghai Commission here.

The issues discussed further in this Bulletin 3 cannot be decided by a military dictatorship, however “progressive” some changes may appear to be, to some of our citizens.

Voters need to ask political parties whether

(a) they support the 1997 Constitution;  and

(b) they believe that the next elected parliament will be free to examine any changes from the 1997 Constitution, implied by the 2013 BKC and any changes proposed by the Ghai Draft Constitution.

Issue 2: The special place of indigenous Fijians
The UN Declaration on the Rights of Indigenous Peoples, was verified by the General Assembly in 2007.

While accepting the fundamental equality of all peoples, the Declaration nevertheless noted that indigenous peoples the world over have suffered marginalization through colonialism and globalization.

The UN recognized the need to respect and promote the rights of indigenous peoples affirmed in historical treaties and other constructive agreements with the state.

The UN declaration encouraged states to enhance indigenous peoples rights through consultation and co-operation with them (and not by force).

Article 5 states clearly that  indigenous people “have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions”.

Just these few references suggest that the Bainimarama Regime, through the 2013 BKC and other decrees, is forcing many changes on the Fijian people and institutions in complete contradiction of the UN Convention: abolishing the GCC, removing the term “Fijian” from the indigenous people’s exclusive use, banning the use of Fijian names of political parties, etc.).

Voters may ask all political parties to declare their position on the UN Declaration on the Rights of Indigenous Peoples, and their relevance for indigenous Fijians in the laws of Fiji.

Issue 3: Great Council of Chiefs (GCC)
Some may argue that the GCC has not served either the interests of indigenous Fijians or Fiji as a whole, as well as they could have and that the Bainimarama Government was right to “close down” the GCC. The first part of this statement may well be correct, as is suggested in this article of mine.

However, an unelected military government has no moral or legal authority to close down an institution which was an integral part of the system of governance approved by all elected Fiji parliaments. The next elected parliament will be free to resuscitate the GCC in its former or any reformed form.

Votes may ask all political parties to declare their position on the Great Council of Chiefs, following an elected Parliament.

Issue 4: The Senate
The Senate was a useful “checks and balances” mechanism, to the elected House of Representatives- a useful “Upper House of Review” able to present a more mature perspective, less influenced by “populist” opinion. It was an integral part of the 1997 Constitution in many ways.  The next elected parliament will be free to resuscitate the Senate in its former or some reformed form.

Voters may ask all political parties to declare their position on the Senate following an elected Parliament.

Issue 5:  Changes to land and mineral resources legislation
It is not for the unelected Bainimarama Government to bring about any changes to Fiji’s land and natural resources legislation. These will all need to be revisited by the next elected Parliament.

Voters may ask all political parties to declare their position on all land legislation decreed by the Bainimarama Government, and their stand following an elected Parliament.

Issue 6: The electoral system to be used for future elections
The coming elections will be held under whatever regulations are issued by the Bainimarama Government.  Given the secrecy of the Bainimarama Government and non-accountability, the Fiji public still has no idea what the system will be.

However, the elected Fiji Parliament will be free to change the electoral system in way they wish. My submission to the Ghai Commission for a desirable electoral system may be read here.

Voters may ask all political parties to declare their position on their vision of a future electoral system, following an elected Parliament.

Issue 7: The common name to be used for Fiji citizens (“Fijians” or whatever)
For some Fiji citizens, one of the positive initiatives of the Bainimarama Regime has been the attempt to create a common national identity and common name for all Fiji citizens.

There is no dispute with the attempt to create a common national identity. However, the decreed use of the word “Fijian” to describe all Fiji citizens is contentious on a number of grounds, as I have attempted to explain here.

Such name changes must not only be left to Parliamentary majority, but should require some consensus from the indigenous Fijian community who have historically been associated with this name.

Voters may ask all political parties to declare their position on the use of the word “Fijian” to describe all Fiji citizens, following an elected Parliament.

Issue 8: Immunity for coup perpetrators and supporters
While immunity may be granted by an elected parliament, such total immunity may not be granted for the abuse of fundamental human rights.  The nature and extent of the immunity that the Bainimarama Government is granting itself may be read here.

The next elected parliament will need to revisit the entire question of immunity.

Voters may ask all political parties to declare their position on immunity provisions, following an elected Parliament.