Letters to Suga on the Legitimacy of Governments : Crosbie Walsh

Yale University

From: Sugasini Kandiah   To: croz.walsh@xtra.co.nz  Subject: Fiji

Hi Prof. Walsh,

I'm currently a fourth year student at Yale University and I'm writing a paper on current politics in Fiji for my class Democracy and World Politics. I've been following your blog over the last few months and was wondering if I could get your thoughts on the kind of legitimacy that Bainimarama has as PM (especially after abrogating the Constitution and sacking the judiciary) . While his plans for reform seem very strong on paper (given Fiji's history) and he seems to have support from people (from what I've read in the media), especially the Indian community, it does seem strange to me that he hasn't called for a referendum or vote of some sort. 

I'm writing mainly about how this coup is different from previous coups and whether Bainimarama's reforms will in fact make Fiji a more stable democracy (if he decides to hand over power in 2014).



I'd welcome your thoughts on whether you think Bainimarama will go ahead with elections in 2014 or if he'll postpone them again. Also, if we take Bainimarama's intentions at face value, what do you think are factors that might challenge his plans for reform (international community i.e. Aussie and NZ aside)?

I'd appreciate anything at all that you might be able to give me. I've been using mainly news articles, blog posts, papers and books written about the coup. Is there anything else that you recommend I should look at? Or a particular person to contact?

I look forward to hearing your thoughts. Thanks for your help.

Warmest,
Suga

My first letter to Suga

Suga, 

I don’t know what you know about Fiji but inn addition to what I write here I suggest you read the more obviously pertinent articles in “Links to Background Material” in my blog. 

You ask about Bainimarama’s legitimacy.  There are so many ways of looking at this.

First, how legitimate was the Qarase government he ousted?  The race-based electoral system gave rural Fijians and the more backward provinces a disproportionate share of parliamentary seats.  Most Rural Fijians would have voted as their chief or Church minister told them. The 2006 elections were almost certainly rigged, and the outcome was very close. Despite the Constitutional requirement, Qarase refused to have Chaudhry in his Cabinet.   

What did the Qarase SDL govt do once in power?  After the Speight Coup of 2000 the ultra-nationalist CAMV party dissolved and was integrated into the SDL.  Many of its leaders were actively involved in the Coup that saw thousands of Indo-Fijians flee their farms in Rewa, Naitasiri and elsewhere for refugee camps in the West. Many never returned.  Qarase took some of the former CAMV leaders into his Cabinet where they greatly influenced policy.   Besides rampant corruption and “jobs for the boys” which threatened the economy and the so-called Affirmative Action that favoured ethnic Fijians and Rotumans to the detriment of other races,  two further outcomes were the Tolerance and Reconciliation Bill that would have exonerated all those involved in the 2000 Coup, and the Qoliqoli Bill that would have given individual Fijian clans title and exclusive use of the foreshore.  This would have resulted in much bickering between clans, lack of access by the general publid and restrictions imposed on the tourism industry.   Both bills were publicly condemned by a very wide section of the Fiji public, and Baimarama called on Qarase to withdraw them or else.  His failure to do so resulted in the 2006 Coup.  The country under Qarase was being run for the benefit of one section of the population: Fijians, and the Fijian elite in particular.

There  was absolutely no way this could have been changed without the intervention of the military. The normal democratic process had failed.

Secondly, the military have always had a special place in the Fiji body politic.  This stemmed from the traditional bati mataqali of old and on to the present.  Since Independence the military saw itself as the ultimate guarantors against being overrun by Indo-Fijians. Hence on the two occasions when elections actually produced democratic outcomes, the Rabuka 1987 coups ousted the multi-ethnic Labour-led Government of Timoci Bavadra and the Speight 2000 ousted the multi-ethnic Labour-led Government of Mahendra Chaudhry.  The people who are now protesting the lack of civil rights and democracy in Fiji are the people who did not protest these coups because they benefited from them. There was no demand for the military to return to the barracks on those occasions.

Thirdly, it was Bainimarama who obtained the release of parliamentarians made hostage by Speight, and Bainimarama who virtually put Qarase in as interim PM.  In doing so he expected Qarase to keep to his part of the bargain and to prosecute those responsible for the Speight Coup  and, later, for the army mutiny when Bainimarama almost lost his life.  Instead, he welcomed their leaders into his government after the 2001 election. 

As of December 2006, it is, I think, reasonable to say that Bainimarama was the most popular man in Fiji.

You ask also about legitimacy after June 2009 when the Constitution was abrogated and the judiciary dismissed.

You will recall that the High Court found the actions of the President in dismissing Qarase and appointing Bainimarama PM to be legitimate.  This decision was taken to the Appeals Court by Qarase when four Australian judges reversed the High Court decision and ruled that the President did not have the emergency powers he claimed.  You need to read up on these judgments if you have not already done so.  For my opinions use the “search” and archive facilities in my blog.

The important point with respect to the two judgments is that they pivoted on interpretations of the 1997 Constitution. Bainimarama said he would honour the Constitution and he did so up until the June 2009 Appeals judgment.  Once the judgment was announced he had two options: step aside or renounce the Constitution.  Taking the first option would have destroyed all he had achieved and returned Fiji to the racial politics of the old regime.  I suggest you reflect on what had been achieved, what is currently in progress and what is planned up to the 2014 elections.  The second option was to abrogate the Constitution which, among other things, meant that all appointments made under the Constitution were no longer deemed valid.  Hence what you call the “sacking of the judiciary.” They were not sacked; their appointments were only valid as long as the Constitution remained intact.  All judicial positions were advertised and many of the old lawyers and judges were reappointed.  More might have been had the Fiji Law Society and Dorsami Naidu in particular not taken such a hostile line with government.  Whether this was on principle or whether it was because of loss of perks or both is a moot point.  My blog has a number of items on the Fiji Law Society.

Finally, you ask why Bainimarama has not “called for a referendum of vote of some sort.” The dialogue and signatures gained in support of the People’s Charter was a sort of referendum.  Despite open opposition by the Great Council of Chiefs and the Methodist Church, some two-thirds of adults said they supported the Charter.  Subsequent to this, all 14 Provincial Councils have now said they will work with Governments.

A formal vote or election, however, would be premature.  First, because the SDL-GCC-Methodist ultra-nationalists are still very powerful and would do all they could to win over ethnic Fijians. Outsiders may say why not?  This is how a democracy works.  But we are not talking about democrats. We are talking about racists, autocratic chiefs, fundamentalist church leaders and an ethnic Fijian elite that use power to maintain their privileges, and do so by purporting to protect easily influenced and obedient Fijians that they are threatened by rapacious Indians. 

Secondly, Bainimarama is trying to create a new Fiji where all races are treated fairly and equally, and where all citizens are Fijians.  There are many steps towards this goal and I doubt all will be achieved before elections in 2014.  Steps so far include the citizenship provision, non-racial scholarships, citizenship education in schools, the demand for trilingualism among teachers, and the replacement of Affirmative Action for one race by affirmative actions for the poor and underprivileged irrespective of race. See especially my posts on school buses, school fees, and free textbooks.  The Charter points the general way forward, and the Roadmap and Strategic Framework for Change spell out the details.  Unfortunately, the latter documents have not be been made public in toto but their intent should be obvious from a number of my posts.   It should also be obvious why an election cannot be be held now or earlier than 2014. This time and more will be needed to convince ordinary Fijians that they have nothing to lose and much to gain from a genuinely multi-ethnic Fiji.   

Many in Fiji who support but have doubts about Bainimarama’s intent would be more reassured if there was more evidence of dialogue and consultation. I agree with this position but am assured by people I respect and trust that PER must stay in place for a while yet, and that full dialogue will take place on the new constitution in 2012 and electoral reform in 2013.  Meanwhile, Government is proceeding with institutional and infrastructural reforms that will lay a firm base for the later political reforms. 

And one last point, what will the role of the military be after 2014? I would expect its ultimate guardianship role to be written into the constitution and some direct or indirect military  representation in government. I am not altogether comfortable with this prospect but it would be unrealistic not to expect the military to play some role in Fiji’s future after 2014.  If, as Bainimarama, has alluded, their role will be limited to upholding the new constitution, well and good, but I doubt anyone can be certain of future outcomes.   All that can be said is that I think Bainimarama is genuine but I am less sure about some of those close to him.  But it’s either the uncertainty of a Bainimarama future or the unacceptable certainties of a return to a Qarase past.

In see I’ve not answered your last question: the factors that challenge his plans. Resurrected hostile Fiji media, failure of the economy to recover, assassination, coup within the coup. Australia and New Zealand can hurt Fiji no more than they are doing already, but they could change their policies and work for the best possible outcome.  Their present policies increase the possibility of failure due to the internal Fiji factors listed above. 

I hope this helps.  I’d like to see your paper when it has been submitted and marked. You may also care to submit all or part of it for publication in the blog.  I’m always on the outlook for reasoned commentary.

Best wishes, 

Croz

My second letter to Suga

Suga,

Further to what I sent yesterday, the concept of legitimacy also has to be examined. Most of my comments took it to mean legality, and in the Fiji context legality under the 1997 Constitution.

Thus Bainimarama initially argued that his coup was legitimate because he was acting on the authority of the President who, in turn, was appointed under constitutional provisions. No one at that time questioned a constitution where the head of state proposed by the Prime Minister (usually with the agreement of the Leader of the Opposition) was appointed only with the approval of the non-elected Great Council of Chiefs. Or one where the Appeals Court ruled that the President could only dismiss parliament on the advice of the Prime Minister. In other words the President could only dismiss Qarase if Qarase asked to be dismissed! 

 

It has been argued that the 1997 Constitution had the support of the people and it was this that gave it its legitimacy. But the “people” were not the people as would be understood in most democracies. The two major political parties supported the Constitution. The SVT headed by Rabuka did so because this was the expressed will of the Great Council of Chiefs. The Fijian people were not consulted. The Opposition Indian National Federation Party led by Jai Ram Reddy supported it because they were fearful of worse consequences if they opposed it.

Remember, Indians has been emigrating in great numbers since 1987. They were no longer the majority race. The police force was predominantly Fijian and the military overwhelmingly so. They thought acceptance was the best they could do in the circumstances. It is significant that both the SVT and NFP lost the 1999 election. Fijians were told by their chiefs and some Methodist Church leaders that  Rabuka had been too soft on the Indians and Indians thought Reddy had sold out to the Fijians.

Two further comments on the Constitution:

First, one important recommendation of the Reeves Commission which produced the draft constitution (Briji Lal was one of the commissioners) was that there should be more Open seats than Communal seats, and that over time communal seats should be phased out. This provision was not acceptable to the Great Council of Chiefs and the Fijian elite. The outcome was that in a 72 seat House, only 28 seats were Open, where people irrespective of race voted for the candidate of their choice who may be of any race. In the communal seats, Fijians voted for Fijians, Indians for Indians,. Rotumans for Rotumans in their one communal seat, and the others (Chinese, Europeans, Part-Europeans, etc.) for an “Other” in their General Voters seats. The preponderance of Fijian Communal seats all but guaranteed the return of a Fijian party. This did not happen in the 1999 elections because the too numerous Fijian parties divided the Fijian vote and in the Open seats the “misuse” of preference votes allowed Chaudhry's Labour party to win. In the 2001 and 2006 elections the Chiefs endorsed Qarase's SDL party and the Fijian vote was less divided.

Secondly, the Constitution involved a provision for power-sharing where the victorious party had to include opposition members in Cabinet. This sounded great at the time but it effectively removed the Opposition, and in doing so removed a check on absolute power, a check that is present in most democratic systems.

So, to conclude this line of argument, what Fiji had post 1997 was legitimacy but it was not democratic legitimacy. Votes were of unequal value, constituencies were of unequal sizes, non-elected chiefs appointed the head of state, and in the 2001 and 2006 elections voters were warned in speeches and through roadside posters that if the Qarase government was not elected, there would be bloodshed. The Fijian ultra-nationalists would not accept a government not led by a Fijian.

In my earlier note I questioned the legitimacy of many actions by the SDL party after they came to power in 2001. I will not repeat them here. But the issue raises questions about the meaning of legitimacy when taken to mean legality, that is, something acceptable in law.

I will not ask who makes the law but this is an obviously important question. I will confine myself to asking about the sanctity of law, and whether there are any circumstances when people have the right to break the law. History shows many examples of the law being broken and the outcome is just. The most obvious is the American Revolution. We also know of situations when the law is followed and the result is unjust. Witness Zimbabwe and Burma. So it could be argued that there are moral issues more important than the law. This is the line taken by Fr Kevin Barr when he “justifies” the 2006 coup on the grounds of “social justice.” You may read his article in the “Links to Background material” section of the blog.

Selamat tinggal,

Croz