Draft Constitutions: 1.Where Are The Drafters Coming From?

By Crosbie Walsh

In this article, the first of two on the Government's draft constitution,  I comment on the processes and  fundamentally different positions adopted in the Government and Ghai drafts. In the concluding article, I use the recently published analysis of the the Government draft by the Citizen's Constitutional Forum to address key issues, compare the two drafts,  and offer some opinions of my own.

The processes

The process originally proposed by Government involved a widely-representative Constituent Assembly to debate and submit its recommendations to the President for adoption. The Ghai draft, however, was unacceptable to Government and the Assembly was abandoned. Government has now draft has now released its own draft and a new process for public participation.
The public has until April 5th to let Government know what they think of its provisions by text messaging, phone calls, and through public meetings and radio talkback programmes. This consultancy falls far short of the now abandoned Constituent Assembly and is far too rushed. More seriously, there will be limited opportunities for dialogue or talanoa and little opportunity to consider the merits and possible demerits of the drafts many clauses. The process is likely to be limited to one directional question and answer sessions.

Ideally (and it is still not too late), Government should reverse its decision on the Constituent Assembly, even if the Assembly were to meet for as short a time as only seven working days. There are three very good reasons for this:
  • First, the number of inconsistencies and omissions in the Government draft show that its preparation was rushed. These shortcomings should be corrected before the document becomes almost irreversible.
  • Secondly, the draft would be improved by further discussion on those clauses about which its critics are most concerned. In some cases only fine turning is needed; in others, changes could be negotiated  that address the contentious issues without jeopardising Government concerns.
  • Thirdly —and far more importantly— discussion and endorsement by the Constituent Assembly would give the Government draft a legitimacy that will not be obtained from the limited public inputs between now and April 5th.
Unfortunately, the situation is not ideal and as much as Government would be well advised to heed the advice of its well-intended critics, its record to date indicates that it is unlikely to do so. In these circumstances, everyone and every group that would like to see some changes to the draft should use every opportunity to promote their suggestions. Writing for this or that blog will have no effect. Tell the Prime Minister. The confrontational posturing of the so-called United Front for a Democratic Fiji made up of the old political parties will also prove fruitless, even though most of their concerns need addressing. They are discredited by their constant opposition to all Government initiatives, and obvious self-interest.  Anyone wishing Government to heed their concerns will need to demonstrate goodwill and diplomacy.

Government has said the process is rushed because it is running out of time to meet announced deadlines.

But these deadlines should not preclude later inputs.

 Some discussion, for example,  could continue beyond the 5th with some members of the public being invited to sit in on the "final" drafting, and the Constitution announced on 12th April could be the Provisional Constitution, finalised in its major provisions but still open to some change for another two-three months, well over a year before the 2014 Election. I suggest this more fluid period of adoption because it permits more citizen participation and because once the draft becomes law it is going to be extremely difficult to change. It is important to get it right the first time.

The Government Draft and its critics
The reaction to the Government draft  by Government's long-standing critics was predictable. Most wanted a return to the 1997 Constitution or the adoption of the Yash Ghai draft.

A more responsible and useful response came from the Citizen's Constitutional Forum which had previously endorsed the Ghai draft, and this week published its analysis of the Government draft, comparing its provisions with those of the Ghai draft and the 1997 Constitution. Its 23-page report acknowledged similarities with these earlier documents and for the most part does not disagree with much in the Government draft. It did, however, point to a number of what it considered to be serious shortcomings in the Government draft, and suggested specific changes.

I spent two days last week digesting and comparing the 199 pages in the Ghai draft  with the 91 pages in the Government draft but I did not publish anything on my conclusions because I wanted first to see what others thought and, frankly, I was totally drained by the concentration required. The CCF analysis, therefore, has arrived at a most opportune time. I shall use it, in the second article, as the framework against which to add my own observations and comments.

Very different premises
But first, to establish my position, I must state that the two documents proceed from very different premises.

The Ghai Commission saw its primary task was to forge some sort of consensus across widely different positions. Thus, it agreed to the continuation of a "large" 71-seat parliament and allowed some role for the Great Council of Chiefs. It "went along" with the Government's "non-renouncable principles", conceded the need for immunity, and allowed some Government participation in the lead up to the 2014 elections.  But its primary thrust , in provision after provision, was to oversee the authority of parliament and the power of the Prime Minister, and limit the influence of the RFMF. It did this through a raft of "independent" commissions, few appointed on the recommendation of the PM, and the appointment of a National People's Assembly to annually oversee government's actions. In essence, non-elected civilians, nominated and chosen to represent the "people", were set above the primacy of the elected parliament.

In contrast, the Government draft asserts the primary of Parliament, seeks to enforce a strong government elected by the people at four-yearly elections, with a strong PM, and the continuing influence of the military, but under the PM as its Commander-in-Chief. Many of the commissions and human rights recommended by Ghai remain, but with the sorts of limitations that we have seen for the past six years.

Ghai recommended people-participation; Government had doubts about who these "people" might be, and whether the result would be strong enough to resist the forces that would return Fiji to the status quo ante. The former position springs from the liberal traditions in a Western democracy and is supported by most of Fiji's Western-educated leaders; the latter position springs from a suspicion that this half-digested tradition contributed to the power structures of old Fiji that paid lip-service to democracy and resulted in destructive contests for power between sections of an urban middle-class elite, racism as a political tool, corruption, instability, and coups, and Fiji's energies directed away from improving the lot of ordinary people.


Joe said…
Croz, I fully support the PM for trashing the CA. Why would you have representatives of the old political parties on the CA in view of their respective submissions to the Ghai commission? I think the PM extended an olive branch to them, but they have their own agendas which would have stalled the process and consequently delayed the election.
Verging on ludicrous said…
Your repeated attempts to defend the indefensible are verging on ludicrous. The entire so called 'process' of preparing this 'constitution' is nothing short of a farce. The process, like the primary school rubbish prepared by the increasingly desperate dictatorship, is rubbish.
Anonymous said…
Croz - the appointment of CJ and President of Appeals Court under the government Draft is unacceptable. If you think people of Fiji will accept appointment by AG instead of an independent Judicial Services Commission, then, you are dreaming. It is fundamental to have a independent Judicairy (CJ and Judges) and what is being proposed is a farce. Dont insult our intelligence. This process of constitution making is seriouly flawed, compromised and lacks credibility. International community will never accept this constitution or any governent elected by rigged elections under it. Better recyle the draft for toilet paper Croz. We will not be fooled.
Anonymous said…
The people who would have sat on the CA would be the same ones who contribute to the hate blogs. Why should they be trusted when they are spewing racial abuse daily?
Anonymous said…
@Anon 6.58
You must be reading another draft mate. Appointment of CJ and Pres are by the President but on recommendation of PM after consulting AG. In 1997 it was on recommendation of PM. Why make a fuss now? And why mislead people? Imagine if the CA had sat with people like you twisting facts and misleading public?
HMS Victory said…
Croz, you seem to have lifted your telescope to your good eye for a while. But if you really think Frank is going to make any changes to the AG's draft Constitution if the public write in or text or call; you are deluding yourself, as are those who believe that there will be a fair and equitable judicial system run under the AG's total control. It has not been so for the past few years, why will it change in the future. The Economist summed it up accurately "By firmly reasserting his control, Mr Bainimarama may perhaps have avoided the risk of troublesome upstarts seizing control over the transition. But he has also blown his chance to preside over the creation of a new political order that is durable and legitimate." That is a tragedy for this and future generations of our beloved country.
Gatekeeper said…
It is most important, crucial even, that a comparative analysis may be made and Professor Walsh is facilitating this. A Constitution is not to be hurried. A Constitution for our own and successive generations is a most serious undertaking. Any Assembly would be necessarily open to scrutiny, criticism and would be at this time highly divisive and counterproductive. The 'Climate' is all wrong: that is obvious, self-evident. The Economist Magazine commentator might have done us a favour had he/she been around a long time ago. An estimable publication which sets an example of 'high, analytical and rational thinking for all. Why has it not been mandatory reading for all in governance? A good use of taxpayers' money and a subscription provides on-line access and a hard copy for as little as US$211 per annum? Yet, it is impossible to buy a copy anywhere in Fiji even at the Nadi International Airport. This is a reflection on our priorities and an indictment of those who run bookstalls at our airports.

Too much emphasis on personalities and past misdeeds at present. This is helpful to no one. In the meantime, organised criminals and their various accomplices "make hay" at our expense. Which Constituent Assembly members would have been prepared to speak out about this? For so many of us have been unprepared to do so in the past. There is no time to lose where organised crime is concerned inside and without Fiji. Note the term 'combat' in the ensuing quotation. Take heed of it this Eastertide!

"Error of opinion may be tolerated where reason is left free to combat it". (Thomas Jefferson - First Inaugural Address 4 March 1801).
An Irrevocable Loss said…
@ Gatekeeper

Let's add this for spice to Thomas Jefferson's relevant advice:

"The various modes of worship, which prevailed in the Roman world, were all considered by the people as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. (Decline & Fall of the Roman Empire Ch2 - Edward Gibbon 1737 - 1794).

"The principles of a free constitution are irrevocably lost when the legislative power is nominated by the executive". (Decline & Fall of The Roman Empire Ch3).

Now this is matter for reflection indeed!
parliament or executive? said…
Sadly legislative power is almost always nominated by the executive. Yes, Minister?!
Not Very Wise said…
Have read the CCF analysis. It seems to start from the basis that the Ghai constitution was perfect. That is one problem, because it was obviously not perfect. Secondly, why did CCF choose to make the submissions public at this stage? Are they even going to send it to the government? When you start to bitch about the draft constitution in public, you already lose any hope of getting anywhere in the result.You are playing to the gallery not working for a result. Not wise, although CCF makes some good points about the independent offices and the judiciary. Their biggest mistake was to gang up with Women's Rights to prepare for the CA. That was the end of the CA.Thank you CCF.
Joe said…
Who gives a stuff about international community. This constitution is for Fijians. Fancy you are already making reference to a rigged election. Go get a life dickhead!!!!!
Anonymous said…
Long live Crosbie Walsh. Long live Graham Davies. Down with the hysterical ranters on the other websites who just don't get it. This is about producing a modern, equal society, not regressing as a nation into tribalism and chiefs. To the naysayers with their doom and gloom. Read the bloody draft. It gives more rights to ordinary people than any constitution in Fiji's history. Who cares about gender equality. Women should be treated on their merits. This is the whole point. Fiji should be a meritocracy in which everyone is equal, not the plaything of the hereditary chiefs and the old race-based politicians with their divide and rule tactics.

The reason that Walsh and Davis are getting such a hammering is because they have the guts to stand up for what is right. Who is prepared to show their face on the other side? Rajen Chaudhry? The guy is certifiable. Have you seen his madness on Facebook? The rest are just faceless thugs who use the foulest language and have the tinniest brains in Fiji. It's getting away from them and they know it.
Con beef and rourou said…

Your idealism is commendable, but leaves us at a stalemate. The more pragmatic among us realized long ago that if we're going to be forced to eat dalo leaves, we might as well have a say in how it is cooked. There is a big difference between boiled leaves and wathi-poki.
Anonymous said…
Agreed he is certifiable. Probably as a result of rage and impotence. But what can we say about the sad people who comment on his mad comments?
The Mob said…
Don't "do" FACEBOOK so have not read the madness on view there. We need to know that in Fiji, Facebook has been used to "stalk" people for purposes of rape. They have then managed to escape overseas thus permitting impunity. However, there are those who post on Facebook, we are informed, who have consulted with traffickers of Class 'A' drugs: specifically cocaine. This has rendered Fiji a Tier Two State. We were previously Tier Three until we prosecuted a few successfully. What does this tell us about these 'creeps' on Facebook? What does this tell us about their accomplices: many known to many of us and holding professional appointments. It tells us that we are 'Between a rock and a hard place" and we shall remain there if we do nought to clean out the on-going rot. The language is a give-away but the gold chains and bracelets and the monogrammed socks in Court speak louder than words! Welcome to The Land of The Mob! Is is the Old Mob or a New Mob? Too dimwitted or too sure of themselves to assume a Makeover?
Crosbie Walsh said…
@ Anonymous. The Ghai draft had the Chief Justice appointed by the President on the recommendation of the Judicial Service Commission after consultation with the PM and the Leader of the Opposition. The JSC comprised a High Court Judge, nominations by the Minister of Justice and the Fiji Law Society, and one man and one women, to represent the public, nominated by the Constitution Offices Commission. On other occasions the Chief Justice was also a member of the JSC. This is certainly a widely representative group, possibly a little too much so. The Government draft, in contrast, has the Chief Justice appointed by the President on the recommendation of the PM and Attorney-General. I consider this insufficient and would add others, for example, the Leader of the Opposition, the Minister of Justice, a High Court Judge and a lawyer outside government. Ghai's inclusion of one man and one woman to represent the public looks good but is of doubtful other value. In the Government draft the JSC comprises the Chief Justice, President of the Court of Appeal, Permanent Secretary of Justice, and a lawyer nominated by the A-G. This is better because it is bigger but I think it is also not representative enough. I hope you and others will seek changes during the present "consultations" perhaps by recommending a review during the first term of the new parliament (or later) that would allow additions to commission membership.
Crosbie Walsh said…
See also comment by Anonymous 29th March 9:07 (I do wish people would use pseudo or real names). I did not know that under the 1997 Constitution, the CJ was nominated only by the PM.
Facebook bully said…
The Tragic Rajendra Chaudhery
The Face book evidence of the deteriorating mind of Rajendra Chaudhary, son of Mahendra Chaudhary, is evidence of the effect of post traumatic stress disorder as a result of sexual and physical assault in custody, and of frustrated political ambition, on an otherwise hopeful future. A spoilt first child, and a much feted child of a famous father, Rajendra had everything going for him. He had the promise that many in Fiji did not – a good education, security, and parental love. His father, famously unfaithful to his mother, was still his role model, although in his mind that loyalty owed by a son to his father and mother must have been sorely tested when the evidence of that unfaithfulness was revealed by the Fiji Times in 1999. Confused, spoilt and probably hostile to all women because of unconscious blame on the mistress (rather than Daddy) he became his father’s Private Secretary when his father became Prime Minister in 1999. His appointment was controversial. Unlike all other civil service posts, the job was never advertised leading to allegations of nepotism. He was also then facing appeal from his sentence for driving a motor vehicle while being disqualified from driving. He had been disqualified for drunk driving. Usually the sentence for driving while disqualified is imprisonment, but the courts let him off with a fine.
He made himself unpopular for other reasons, he was arrogant, dishonest and violent, getting into a violent altercation with a taxi driver after a night out in town (the driver was “persuaded” later to withdraw his complaint) and having a reputation for treating women with disrespect. His marriage was and is volatile and unhappy. He was then made a hostage during the Speight coup. It is said that as a hostage he was physically and sexually assaulted by the guards. He was never counselled for the assaults.
On his release, he went to study law, possibly believing that this was a way to deal with the sodomy and force on him, of the past. It might have worked if he had come back, lain low and got on with the job of being a lawyer. He chose instead a life of politics, abusing the judiciary at every opportunity and showing nothing but resentment and disrespect for his fellow practitioners. Vindictive, resentful and arrogant, he had a special flair for manipulating young women who were largely unattractive but smitten by the superficial charm he switched on to convince them that he found them sexually attractive. He then used them, to get information about his enemies, and to attack those who he thought were a threat. He is able to manipulate his mother and sister, but he cannot manipulate the woman he hates the most in the world – Asha Lakhan. In his eyes, Asha is the face of all women, manipulative, evil, and promiscuous.
His disrespectful conduct in court had an immediate result. He was struck off the Roll of Legal Practitioners and cannot practise. When he was under investigation, he did the most foolish thing he could have done - abused and insulted the judge who referred him for discipline, Judge Goundar.. When he was struck off, he abused the Commissioner Judge Madigan, making homosexual slurs which give away the fact that he never got over the sodomy in Parliament in 2000. His hatred for women is shown when he abuses Justice Wati (calling her a prostitute and slut) and Nazhat Shameem (also a slut). Actually his hatred is for all women, and his hatred for the judges who discipline him, is actually hatred for the men who sexually abused him in Parliament. All of this is now coming out on his Face book account. A tragic, insane man and a manifestation of frustrated evil and impotent ambition. Now, how will he ever get back?
Hang the parasite said…
The treasonous piece of shytye you call a 'chief justice' is nothing but a junta groupie who has not only committed treason but played a part in destroying the rule of law in Fiji. He should hang for his crimes. His silence about the dictator's comments that torture are ok under this human rights abusing junta are disgusting...and cowardly..
Anonymous said…
Is there a law against cyber bullying and crime? Rajendra seems to bully others full time.

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