Dr Shaista Shameem's Submission to the Constitution Commission
PUBLIC NOTICE. A public seminar organized by the Constitution Commission and the Fiji National University will be held at the Fiji National University Nasinu Campus tomorrow Wednesday 17th October from 6-8pm. All are welcome.
Dr Shaista Shameem was director of the Fiji Human Rights Commission from 1999 to 2007, and director and chairperson from 2007 to 2009.
Her written submissions to the Constitution Commission on 10th October are in the form of amendments to the text of the 1997 Constitution. The new Constitution is referred to as Constitution 20XX. The full draft text is available on fijipensioners.com website. This posting comprises a summary of her main proposals. The highlighted text is mine. Ed.
- Constitution 20XX represents the Social Contract between the People of Fiji and the State. The People and the State have rights, duties, responsibilities, obligations and commitments to each other. These are set out in the Constitution.
- The Bill of Rights is considered to be the heart of Constitution 20XX, following from the tradition established by the Kingdom of Fiji Constitutions, the 1970 Constitution, the 1990 Constitution and the 1997 Constitution.
- All other constitutional provisions must be in compliance with the Bill of Rights, including governance, representation in parliament, presidential elections, administration, accountability of the State, role of the judiciary, economic and social development, and delivery of all services by the State and its institutions.
- The Bill of Rights has been expanded to include economic social and cultural development and social justice, right to environment, governance and administration of the State, and accountability of public offices.
- Constitution 20XX emphasises consensus-building governance, and less autocratic or authoritarian rule.
- The public accountability mechanisms present in the 1997 Constitution have been strengthened in Constitution 20XX. Two new accountability institutions are added- (i) a Constitutional Court and (ii) a Charities Commission.
- The Human Rights Commission will have 7 members with a full time Chairperson and Proceedings Commissioner. Five of the members of the HRC will be responsible for specific mandates — Children, Development and Social Justice, People with Disabilities, Race Relations and Conciliation, and Gender Equality. The positions of Ombudsman and Chairperson of the HRC have been separated. The constitutional oversight of the Commission has been strengthened in Constitution 20XX.
- More checks and balances are proposed across all the arms of the State — the executive, the legislature and the judiciary. Separation of powers between the different arms of the State is exemplified in the strict requirements for an independent judiciary. The judicial oath in Constitution 20XX includes an express clause on the UN Basic Principles on Independence of the Judiciary.
- A new Constitutional Court is proposed which will have original jurisdiction in matters of interpretation of the Constitution. Its decision shall be final. Anyone can make an application directly to the Constitutional Court.
- Parliament cannot pass a law that is inconsistent with the Constitution.
- Councils of Influence are proposed —consisting of the Bose Levu Vakaturaga and Councils of Elders to be formed by each community for the purposes of assisting the President and Parliament to understand the issues facing each community. A joint Conference of Councils of Influence is to be held for the purposes of discussing national issues. The Joint Conference will be convened by the President annually.
- The President is either appointed by parliamentary consensus or, if there is no consensus, he or she is elected by an electoral college consisting of both Houses of Parliament convened together for that purpose. Nominations for the position of President are to be made according to a strict procedure set down in Constitution 20XX to be followed by Parliament.
- The Constituent Assembly will decide the appropriate voting mechanism to be employed in elections. In complex societies such as Fiji, Centrapetalist Consociationalism is reported to be most effective technical method for delivering representative democracy because it allows for active participation in governance by both majority and minority groups. However, the method is to be determined by the Constituent Assembly after technical presentations have been made to the members on the different models, and their results and outcomes in real situations explained, so that an informed decision can be made on the best voting method for Fiji. The kind of voting method to be used in Fiji should be a democratic decision.
- In Constitution 20XX, the primary constitutional duty and responsibility of the President is to protect and up-hold the Constitution by all legitimate means available to him or her. He or she is the Commander-in-Chief of the military forces and Chief Authority of the Police and Prisons Departments.
- The role of the RFMF is to protect the President in his or her role as protector and defender of the Constitution, to protect the Houses of Parliament, and to ensure the Constitution remains in place.
- It is also the role of the RFMF to devise a scheme of National Service to be part of the formal educational curriculum.
- The RFMF shall continue to support international peacekeeping but its role would strictly be to monitor and respond to human rights crises in other countries.
- Decree No 57 of 2012 is added to the Preamble of Constitution 20XX in recognition of its position as a non-negotiable principle; however, the fact that reparation is necessary is added to that preambular clause.
- All Acts, Promulgations and Decrees are to be made consistent with the Constitution and parliament shall decide which of them should be enacted as law after the due process in passage of legislation has been followed.
- Repeals of legislation, including any clauses of the 1997 Constitution, will be decided by the Constituent Assembly.