From Paramountcy to Equality: Constitutionalism, Dialogue & Ethno-Political Conflict in Fiji

Rev. Akuila Yabaki.
CEO of Citizens’ Constitutional Forum

Introduction
Fiji has had a turbulent political history with five coups in just over 20 years. Conflict between the two major ethnic groups (Indigenous Fijian and indo-Fijian) has often been blamed for this instability, but the reality of the situation is much more complex. Broader social problems, such as poverty, access to education, lack of good governance and a struggle for wealth, land resources and power, have contributed to the political instability.



Religion has also played a role in the political instability, with certain Church leaders supporting coups in the interest of creating a Christian State. In addition, the structure of
government under Fiji’s three Constitutions has had a profound impact on ethnic division by encouraging segregation and discrimination rather than equality.

Colonialism largely contributed to the ethnic mix by introducing indentured laborers
from India in the late 19th Century, but there has been a continued failure to critically
address the issues which perpetuate the ethnic division. This division was encouraged by
the ‘divide and rule’ mentality of the colonial power. This attitude was designed for
effective administration of colonies rather than to promote racial harmony, and has left a
painful legacy for many countries that continue to struggle with these issues today. The
Fiji 1997 Constitution’s1 entrenchment of the principle of “paramountcy’ of Indigenous
Fijian interests (a remnant if the colonial era) and a distinctive lack of social understanding and acceptance of different cultures and ethnic groups ensure that this division remains today. The role of the military and its dominance by one ethnic group(Indigenous Fijians) has perpetuated the divisive political economy and the politico-administrative structures.

In order to break away from its history of racial politics, there is a need to address the
political and legal structure to ensure fair representation and participation in government
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1 Compact, Fiji Islands Constitution (Amendment) Act 1997. The 1997 Constitution was purportedly
abrogated by the President on 10 April 2009.

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for different ethnic groups. Likewise there is a need to deal with the social aspect (the
attitude or mindset of the Fiji people) that contributes to the division and conflict.
An ongoing national dialogue process could support and facilitate both aspects and is a
good starting point for reconciling the divide between ethnic groups. Once a truly
participatory and representative government is firmly established, a truth and
reconciliation tribunal could be used to further ease lingering ethnic tension and address
the problems of the past. A multi-dimensional approach which considers the need for
constitutionalism and the rule of law in addition to an open, inclusive dialogue is
essential if Fiji is to become a just, equitable and stable society.

Fiji’s System of Government
By the time of independence in 1970, the Fiji population was more or less equally
balanced between Indo-Fijians and Indigenous Fijians, 2 with a small percentage of other
ethnic communities (which included other Pacific Islanders, Europeans and Chinese).
The system of government inherited was based on the Westminster parliamentary system,
and included communal voting which encouraged each ethnic group to focus on their
own communities’ interests.

Over time, the system of government inherited or imposed by colonial rulers has been
modified by constitutional developments, but not all these changes have been positive.
There has been a systematic failure to embrace the substantial reforms required to
promote the principle of equality in the political arena. The 1997 Constitution has
perhaps been the closest to achieving this,3 however ethno-political conflict since the
Constitution has been adopted would suggest otherwise. The perception that equal rights
equates to the destruction of indigenous group rights has caused much of Fiji’s political
instability.4 In this sense, it was probably less of a failure in the politico-legal structure
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2 Parliament of Fiji, Parliamentary Paper No.32 of 1997, ‘The Fiji Constitution and the Commonwealth:
Final Report’ (1997) 3[6]; Demographically, Indo Fijians accounted for 51% of the population in 1970.
3 Y. Ghai and J. Cotrell, A Tale of Three Constitutions: Ethnicity and Politics in Fiji, Oxford University
Press, Oxford, 2007, CON, Volume 5, Number 4, 2007, pp639-669
4 Madraiwiwi J., Fiji 2001: Our Country at the Crossroads”, paper presented in the Ray Parkinson
Memorial Lecture Series, Suva, University of the South Pacific, 2001


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(or the Constitution) itself and more of a social misunderstanding that lead to the
instability in 2000.

A constitution may unite different ethnic groups for the common purpose of forming an
effective government, but it can also polarize division. Constitution-making in itself can
form part of a peace-building process5 between different groups and may encourage
dialogue or reconciliation. However, it is unreasonable to think that a Constitution alone
can address the simmering racial tensions of a nation.

Developing the 1997 Constitution
Perhaps the most redeeming feature of the 1990 Constitution was that it provided a
review clause that led to the creation of the 1997 Constitution. Politicians and civil
society collectively managed to persuade government to uphold its commitment to
reviewing the Constitution and in 1995 the Fiji Constitutional Review Commission (the
report of which is known as the “Reeves report”) was appointed and chaired by Sir Paul
Reeves (former Governor-General of New Zealand), Professor Brij Lal and Tomasi
Vakatora.

This was the first time that there were widespread public consultations before the drafting
of a Constitution in Fiji, and extensive submissions were received from local
organisations and individuals as well as international experts and officials from Australia,
New Zealand, Malaysia, Mauritius, South Africa, United States, and England. The
Commission made recommendations for “promoting racial harmony and national unity
and the economic and social advancement of all communities and bearing in mind
internationally recognized principles and standards of individual and group rights”6.
However, not all the recommendations in the Reeves Report were adopted in the new
Constitution. The Reeves Report recommended a gradual phasing out of all communal
seats so that eventually all seats would be open rather than ethnically divided. Instead, the
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5 Y. Ghai, The Constitutional Reform Process: Comparative Perspectives, “Towards Inclusive and
Participatory Constitution Making”, 3-5 August 2004, Kathmandu, Nepal
6 Terms of Reference of the Fiji Constitution Review Commission, issued by the President of the Republic of Fiji, 15 March 1995, as reproduced in P. Reeves, T. Vakatora, B. Lal, Towards a United Future: Report of the Fiji Constitution Review Commission, Government Press, Suva, 1996 (Parliamentary Paper No. 34 of 1996)


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1997 Constitution provided for a greater number of open seats than its predecessor but
the communal seats remained.

In 1992, parliamentarian Jai Jam Reddy commented that you could have multiracialism
in two ways:

You can…have multiracial parties… That kind of multiracialism is, maybe, a bit premature for
Fiji, perhaps we are not ready for it… The communal pools [sic – pulls?] are extremely strong…
we are locked into a situation where we will continue to look into the indefinite future in terms of
race… There is another kind of multiracialism… Let us each be in our separate racial
compartment… Let communal solidarity prevail… Let everyone be united, but from our
respective positions of unity, let us accept that we must co-exist and work together… It may be…
that that is a more realistic approach.7


Therefore, an attempt was made at the last minute to bring parties together through a
multi-party cabinet.8 This power sharing arrangement was flawed from the beginning.
One flaw was that they were unclear, resulting in subsequent litigation9 over the true
meaning of the power-sharing arrangement and the composition of Cabinet.
It also failed to recognize that, to make this system work, goodwill and trust between the
communities was needed, qualities that did not exist at the time. In South Africa, a
power-sharing arrangement was successful for a transitional period, but it may not be
sustainable or realistic in the long term. Power-sharing arrangements have had a
checkered history: there is evidence to suggest that such power-sharing arrangements can
work under a proportional representation voting system (for example, in Northern
Ireland), but not under the ‘majoritarian’ alternative voting (AV) system, as was adopted
in the Fiji 1997 Constitution.10

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7 Hansard Parliamentary Debates, House of Representatives, Suva, Fiji, 24 July 1992, pp 730-731, as cited
by Jon Fraenkel, The Triumph of the Non-Idealist Intellectuals? 46 AJPH 1 (2000) at p103. This
compartmentalizing of ethnic or racial categories is part of the problem. It ignores the class nature of Fiji
society, including the intra ethnic inequalities.
8 The Citizens’ Constitutional Forum supported the proposal of a multi-party cabinet in its submission to
the Fiji Constitutional Review Commission. These submissions are published in: One Nation, Diverse
Peoples: Building a Just and Democratic Society, A Submission by the Citizens’ Constitutional Forum to
the Constitutional Review Commission, Printhouse Ltd, Suva, September 2005.
9 President of the Republic of Fiji Islands v Kubuabola [1999] FJSC 8; Chaudhry v Qarase [2002] FJCA 2; In re the Constitution, Reference by HE the President [2002] FJFC 1
10 Jon Fraenkel, The Triumph of the Non-Idealist Intellectuals? 46 AJPH 1 (2000); and Y. Ghai and J.
Cotrell, A Tale of Three Constitutions: Ethnicity and Politics in Fiji, Oxford University Press, Oxford,


--------------------------------------------------
This alternative-vote (AV) electoral system, which was intended to promote moderation
and co-operation across ethnic lines,11 in fact resulted in greater polarization of political
interests. Instead of partnering with other moderate groups, preferences were allocated to
those parties perceived to be the least threat, promoting rather than tempering extreme
political views.

In addition to this, the Joint Parliamentary Select Committee that reviewed the Reeves
Report failed to consider that the recommendations should be taken as a whole with
various aspects of the political structure complimenting each other.12 The parliamentary
process used to implement the 1997 Constitution diluted the effectiveness of some of the
recommendations designed to promote racial harmony.

Ethno-Political conflict in 2000

In spite of some flaws, the 1997 Constitution was a comprehensive and advanced
document with a strong focus on human rights. The first true test for the Constitution
came not long after the first elections were held in 1999. An Indo-Fijian party13 led by
Mahendra Chaudhry won the elections. Some Indigenous-Fijians found this outcome
unacceptable and felt that they were deceived by the constitutional review process.
Old fears resurfaced and the Indigenous-Fijian community felt that their cultural
institutions were threatened by the election result. This perception seems to be
unfounded. Far from eroding indigenous rights, the 1997 Constitution provided a
protectionist approach to indigenous Fijian interests and tried to strike an acceptable
balance between individual and group rights.

The increased racial tensions following the election culminated in the 2000 civilian led
coup by George Speight. Due to the inability of the State to function whilst Parliament
was held hostage by Speight, the military assumed control of Fiji and advised the
-----------------------------------------------
2007, CON, Volume 5, Number 4, 2007
11 Y. Ghai and J. Cotrell, A Tale of Three Constitutions: Ethnicity and Politics in Fiji, Oxford University
Press, Oxford, 2007, CON, Volume 5, Number 4, 2007, p655
12 Y. Ghai and J. Cotrell, A Tale of Three Constitutions: Ethnicity and Politics in Fiji, Oxford University
Press, Oxford, 2007, CON, Volume 5, Number 4, 2007, pp639-669
13 The FLP started as a multi-ethnic party and the Chaudhry cabinet was comprised of ministers of varied
ethnicity. However, it was strongly influenced by Chaudhry’s leadership style and the attempts to
undermine it by its enemies and came to be perceived as an Indo-Fijian party.


-----------------------------------------
President14 to abrogate the 1997 Constitution. In a decision15 that became known
internationally as “the case that stopped a coup”16 an indigent Indo-Fijian farmer
successfully challenged the abrogation of the Constitution on the basis that it took away
his rights. In this manner, the judiciary played a vital role in restoring political stability
and constitutional rule.

Qarase was appointed caretaker Prime Minister by Commodore Bainimarama and in spite
of the Court’s decision, the Chaudhry government was not reinstated. Instead, Qarase led
Fiji to elections from the enviable position of incumbent Prime Minister. Qarase’s lack of
adherence to the strict terms of the Constitution at this time subsequently attracted
criticism from the Court of Appeal, when he himself was seeking to be reinstated after
the December 2006.

Even though elections were held in 2001, ethnic tensions between communities remained
high. Some people were tried and convicted for their roles in the 2000 coup and the
violence that ensued, whilst others were allowed to continue in government or chiefly
positions. It was this arbitrary application of justice and the suggestion of amnesties
(including for convicted offenders) under the Reconciliation, Tolerance and Unity Bill
2006 which enraged advocates for the rule of law and victims of the events of 2000.17
There was no attempt to offer compensation or other relief to those who were harmed,
evicted or had their property damaged by the violence following the 2000 coup. The
failure to adequately address calls for justice and the emerging social and economic
problems, such as poverty and access to land, compounded the political problems. Land
leases continued to expire with each passing year, and no attempt was made to reform the
Fijian Administration to encourage development and improve access to land. Poverty was
on the rise and the number of people living in squatter settlements continues to increase.
Resentment was allowed to simmer with no genuine attempts at reconciliation.

-------------------------------------------
14 Citizens’ Constitutional Forum v President [2001] FJHC 28
15 Republic of the Fiji Islands v Prasad [2001] FJCA 2
16 G. Williams, The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji (2001) 1
Oxford University Commonwealth Law Journal 73
17 A number of local and international civil society organisations made submissions to Parliament on this
point, including Citizens’ Constitutional Forum.


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The 2006 Coup – Eliminating Racial Politics?
In the 2001 elections, government reverted back to an Indigenous Fijian party (the SDL)
whose policies gradually became more divisive. After winning the subsequent elections
in May 2006, a number of controversial bills were introduced which sought to strengthen
and expand indigenous group rights.18 The government and opposition (an Indigenous
Fijian and Indo-Fijian party respectively) made cross allegations of engaging in hate
speech,19 signaling that tensions had not abated.

Citing racism, corruption and economic decline20 as a grave threat to the security of the
nation, Bainimarama seized control of the country on 5 December 2006 and assumed the
Executive Authority of the President. The Prime Minister was dismissed and parliament
dissolved. On handing executive authority back to President Iloilo in January 2007,
Bainimarama was appointed Interim Prime Minister and has continued in this role since
then.

A legal challenge of the 2006 takeover was commenced by the ousted Prime Minister
Qarase. The same judge who dogmatically supported the 1997 Constitution after the 2000
coup21 reasoned that the President of Fiji has prerogative powers to act outside of the
Constitution. 22 In essence, the decision gave a carte blanche to the unelected President23
to rule by decree for an indefinite period of time. This decision was legally flawed and
generated substantial criticism from the public and the legal profession. It was overturned
by a Court of Appeal decision24 six months later. The effect of the Appeal Court’s
decision was that the interim government was declared unlawful, and the Court
recommended that a caretaker civilian government be installed to lawfully dissolve
parliament under the Constitution and call for elections. It held that the President only has

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18 The Qoliqoli Bill 2006 created exclusive indigenous fishing areas to the detriment other communities.
19 Prime Minister Qarase and the Leader of the Opposition, Mahendra Chaudhry have repeatedly made
cross allegations of engaging in hate speech in Parliament. In a program on Al Jazeera “101 East” aired on
30 July 2009, the National Director of the deposed SDL party stated that it was a God-given right for
indigenous Fijians to govern their own country.
20 Speech of Bainimarama as cited in Qarase v Bainimarama [2008] FJHC 241
21 Per Gates CJ in Prasad v Republic of Fiji [2000] FJHC 121
22 Qarase v Bainimarama [2008] FJHC 241
23 Because of his appointment by the GCC, the President is always likely to remain an indigenous Fijian
even though this was not a requirement for the position under the Constitution.
24 Qarase v Bainimarama [2009] FJCA 9


-------------------------------------------
a limited power to act outside the Constitution for the purpose of returning Fiji to
constitutional rule.

On 10 April 2009, one day after the Court of Appeal decision declared, the President
purporteded to abrogate the Constitution, dismissed the entire judiciary and has since
ruled by decree, in an attempt to create “a new legal order”25. In many ways, these events
have had a more substantial impact on the institutions of government than the 2006
coup.26 The reforms since April 2009, particularly to the composition of government,
constitutional offices and the judiciary surpasses the comparatively minor changes made
after December 2006.

Provided that there is a sense of ownership in the Constitution by the citizens of a
country, it can be an effective tool in regulating the actions of government. It was not so
much a failure in the framework of the 1997 Constitution that led to the 2006 coup, but
the failure (particularly by Fiji’s leaders) to continually support the Constitution itself. A
Constitution is like a house. It may be a good house with solid foundations, but if the
machinery of government operates outside that house, it becomes unused and irrelevant.
The machinery of government was operating outside the Constitution long before the
Qarase v Bainimarama Appeals decision. The inherent weakness of the judicial system to
withstand a constitutional crisis was revealed by events since that decision.27

In 2000, the Fiji Constitution was a powerful tool for challenging coups and military
takeovers in the past, but it is unrealistic to think that this alone can heal the ethnic
division and create a stronger sense of national unity. A constitution creates, binds and
empowers the institutions of government28, but it is the people who make any system of
government function. In a paper by CCF and Minority Rights Group International
following the 2000 coup, it was noted: “If community leaders do not commit themselves
to Fiji’s 1997 Constitution and a new Constitution were to once again be imposed

-------------------------------
25 Speech of President Ratu Iloilo, President’s Address to the Nation, 10 April 2009 accessed at:
http://www.fiji.gov.fj/publish/page_14712.shtml on 3 September 2009.
26 Speech of President Ratu Iloilo, President’s Address to the Nation, 10 April 2009 accessed at:
http://www.fiji.gov.fj/publish/page_14712.shtml on 3 September 2009.
27 Nicola McGarrity, Calling a Coup a Coup: Judicial Authority versus Political Reality in the Fiji Islands
(2009) 20 PLR 178 at 182
28 Submissions by the Citizens’ Constitutional Forum as Second Amicus Curiae in appeals case of Qarase v Bainimarama [2008] FJHC 241


------------------------------------
through a divisive constitution review process, ethnic relations will continue to
deteriorate, the plight of vulnerable minorities worsen, and Fiji’s economic and social
development prospects will be harmed.”29

It is difficult to assess the extent to which the 2006 coup has contributed to a reduction in
ethno-political conflict, if at all. On the one hand, the coup was carried out with the
proclaimed objective of combating racism. However, previous coups perpetrated under
the banner of eliminating racism have subsequently been shown to entrench and enhance
the interests of the Indigenous Fijian community. By contrast, the 2006 coup leaders have
taken steps that appear to be contrary to the interests of Indigenous Fijians. It has
prevented the enactment of laws by the Qarase government that would have enhanced
Indigenous interests. It also led to the disbanding of the GCC and changing other aspects
of the Fijian Administration, although proposed reforms in this area remain largely
unknown. These actions could disenfranchise a large part of the Indigenous Fijian
community who could see it as a threat to their right of self-determination.

It is also said that there is support for the current government from elements of various
ethnic communities. However, it remains difficult to assess the real reaction by different
communities to the events of 10 April 2009 because of strict media censorship under
emergency regulations30 that are likely to continue for some time. Gauging a true public
response to these events in a climate of fear and oppression will be difficult if not
impossible to obtain. Also, censorship introduced in April 2009 only serves to suppress
public debate essential for communities to build inter-ethnic relationships and
multiculturalism. Breaking down cultural barriers and racial stereotypes is only likely to
occur through open and frank discussion on the core reasons for these beliefs.

In other ways the actions of the military are incongruous with their claims to eliminate
racial discrimination and introduce ‘true’ democracy. For example, the continued
militarisation of high offices of government and appointments to statutory corporations
-------------------------------------------
29 Paper by Satendra Prasad, Jone Dakuvula and Darryn Snell, Economic Development, Democracy and
Ethnic Conflict in the Fiji Islands, 2001, CCF and Minority Rights Group International.
30 Public Emergency Regulations 2009 (first Gazetted on 10 April 2009, and renewed every 30 days).
are not conducive to building a culture of democracy in Fiji. Likewise, ethnic diversity is
hardly represented in the composition of the military.

----------------------------------------------
In addition to this, there is the evangelising of the police force by the “Christian
Crusade”31 that has adopted “the Jesus strategy” as the way to fight crime. Religious and
racial discrimination are often closely linked, and in Fiji, religious and ethnic ties remain
very strong. This type of religious discrimination would primarily marginalise the Indo-
Fijian community and other people belonging to ethnic and religious minorities.

There is a real possibility that we may see a shift away from traditional ethno-political
conflict which is primarily based on race, to ethnic conflict that is internal and cuts across
the two major ethnic groups. Such division is already evident within the traditional Fijian
Administration with individual Chiefs either supporting or opposing the Interim
Government. This shift and the internal ethnic tension cannot be ignored as it complicates
the dispute and may hamper attempts to achieve long term political stability if it is not
genuinely addressed.
-------------------
31 Police officers are required to participate in religious activities of the New Methodist Church (founded bythe Police Commissioner’s brother).
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Continued next Saturday

Comments

Akuila the Great said…
God Bless Akuila Yabaki. This guy is a national treasure. Reading all this reminds me that for all his opposition to aspects of the regime, he and Frank aren't too far apart on the big issues. Indeed, some of this looks like a government manifesto, or at least a manifesto the government could have produced were it as sensible as the good Reverend. It's immediately clear from Yabaki's comprehensive tour of the horizon that none of the national problems he identifies could have been resolved under an indigenous supremacist government like the SDL. Ergo, something had to break the cycle and that something is arguably Frank Bainimarama if our "democratic" institutions weren't capable of reform. So if you take that premise as a starting point, a lot of these ideas start to make sense, even if the devil is in the detail, as it always is. Why Yabaki and the CCF haven't been dragged into the heart of the reform process is beyond me. Frank ought to be embracing the CCF, not treating it with suspicion. If he and Yabaki could sit down with the likes of John Prasad and come up with something everyone could agree on, it would be no bad thing. Even if some compromises had to be reached, Fiji could then present the world with a blueprint that carries a legitimacy and credibility that the current "roadmap" sorely lacks. Yabaki's problem is that the regime sees him as the opposition, someone with the gall, the cojones or the courage ( depending on your point of view ) to speak out when no-one will, as in the recent ABC Australia piece on Fiji. But I'd ask the regime this: Is there anyone in Fiji more thoughtful, more sensible, more suitable or more able to command widespread community respect than Yabaki? For a start, the fact that the Methodist hierarchy hate him so much ought to automatically qualify the man for sainthood. This thoughtful treatise also shows that he has the intellectual capacity to grasp the essence of the nation's problems. A man of God unconstrained by religious dogma and prejudice. A fearless crusader for basic human rights, not the "human rights" masking an agenda of self interest pursued by others in Fiji. On the evidence of this piece alone, give that man a round of applause and a bigger job.

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