Legality and Legitimacy Are Not Synonyms

Signing of the Deed of Cession 1874
By Na Lawedua

The whole issue of legality is an interesting one. The ceding of countries to England, France, Belgium and Holland in the view of many had no legal basis at all.

So, even if some 13 Fijian chiefs agreed to cession, one must ask whether those chiefs had legal sovereignty over all the people; whether Cakabau had  the authority to cede Fiji to Britain, and whether the guerrilla warfare practised by the hill tribes against the British was a rebellion, as the history books say, or simply an exercise in the lawful protection of their tribal sovereignty? 

If Cession had no legal basis, what then was the status of the 1970, the 1990 and the 1997 constituitions? All three were passed by undemocratic means, with the 1997 Constitution ratified by a Parliament which had been installed by the 1990 Constitution which had been ratified by Decree!

The issue of legality is one which historically leaves us in a position of not being able to move forward at all, unless we now, at this time, aim for ratification through a representative and consensus gathering process which gives legitimacy through the democratisation of consultaion and opinion gathering.

That is not to say that we should never ask ourselves what the law says about the legality of a government but it does show that legitimacy and legality are two different things. Slavery was legal, but that legality did not give it legitimacy.

I think legitimacy exists in a substantive democracy. Legitimacy is about popular acceptance (not just submission and acquiescence); it is about popular consultation and agreement, and about respecting fundamental human rights and dignity.

If the current process in Fiji is able to obtain that form of legitimacy, then the legality or otherwise of the government which set up the process, becomes as marginal as the question of the legality of the 1997 Constitution —or the legality of British colonial rule.

The Constituent Assembly make up is important.  It should not just be a gathering of  Fiji's elites: the Crisis Centre, the NGO elite, the donor elite, the corporate elite, and so on. If this happens, the Assembly will undermine legitimacy, not build it. The Assembly must be far more representative. to be legitimate.

Historical Footnote: Within a year of the signing of the Deed of Cession, some 40,000 Fijians, over one-quarter of the estimated population of 150,000, died from measles.  Following the signing Cakobau and his family were feted with a trip to Sydney. They brought the  disease (and gonorrhoea) back with them. To avoid embarrassment, H.M.S. Dido flew no quarantine flag as it anchored off  Levuka and Cakobau's eldest son Ratu Timoci, infected with measles and gonorrhea, went ashore. The following day, January 22 1875, 69 chiefs met to decide what to do about possiible rebellion against Cession.  Several carried measles back with them to their vanua.


Bring on the Citizens! said…
We should without demur scrap this term 'elite'. After all, what is elite about conveying measles and gonorrhea,albeit in ignorance, to one's own people?

Erase elite and bring on not a 'common citizenry' - simply 'citizenship' for all? Liberte, Egalite et Fraternite - what is wrong with that?

Membership of an elite requires elite and exceptional conduct. Who is to judge?

The Citizens.
Galloping Inflation 2012 said…
Perhaps we might ask the government of Cuba for assistance with eradicating 'elite' status and imposing 'citizenship for all'? It appears that Cuba is slowly succumbing to the emergence of a monied elite as it removes barriers to private ownership and encourages a measured and restricted private enterprise. This will present problems as it is certainly accomplishing now in China. As China's rate of GDP slows down, huge pressures within that society will prevail with great risk to stability. Cuba and China both face risk management issues. And the rising cost of fuel which may soon be runaway come 1 July 2012 (EU embargo on the importation of Iranian oil) will only serve to increase such risk. The cost of a barrel of oil has risen 15% globally since 1 January 2012. This should be concentrating our minds above all else! US$200 a barrel oil before Christmas 2012?

Do we recall 1973? We should atempt to do so and now.
Anonymous said…
Colonialism had no legitimacy at all. The Mabo case in Australia defined the crass lie that was the basis of colonial rule- the white man's burden. And the Australian Government quickly set to reversing the effect of that decision, frightened of losing the legality of it's own existence. What a shallow word 'legal' is. It is based on power had blindness. Taken to it's limits, there is not a single government in the world that is legal.
Anonymous said…
Yes and this regime is neither 'legitimate' nor 'legal' by any measure. The idea that we go back to slavery by way of a case study is clearly a joke, it would have to be.
Anonymous said…
Oh what crock. Trying to justfy this regime by going to laughable lengths. There wass away to change things in fiji and Bainimarama had a much right as any other citizen to stand for election and get a mandate on a platform taken to the people for their judgement, he decided not to bother and then usurp the elected government.(who he placed there in the first place) There were no demonstrations, no popular uprisings, just vanity and justifications given as an afterthought to protect members of this regime.
Anonymous said…
I don't see this article as justifying illegality. It only puts the the whole issue of legality in perspective. When did we last have a 'legal' government? Maybe never. We need to take hatred for Bainimarama out of the equation and try to look at the issue objectively. There was no legal or moral basis for colonial rule either. No democratic vote to decide on whether the people wanted colonial rule. Just a usurpation of rights, followed by the use of the law to justify and entrench colonial power.
Anonymous said…
People who do not like to look back at history are usually the ones who don't like what they see. In Fiji, a procession of illegalities which were accepted in the spirit of political pragmatism. The truth is, people are pragmatic only when it suits their own agenda. If it doesn't - why then, the government is illegal, Bainimarama is a vain usurper, and everything he does is illegal.. And what were Rabuka, Mara, Qarase, and all the post colonial governments, if they did not usurp power by pretending to follow the law. The law is so good at masking illegitimacy.ntinpo
The Economy trumps all said…
As 2014 draws to a close, it will be clearly seen: "It's the economy, stupid". That is all that will remain etched in people's minds and it will serve as the rationale for just about anything. Forget 'Illegality/Illegitimacy' in the last resort, the economy trumps all.
Food on the Table said…
Correct "The Economy Trumps All". try telling the Singaporeans that their country lacks legitimacy and/or legality. They will laugh in your faces.So will the americans, although their nation was born of a revolution and a usurping of power

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