Need to Tweak Government Draft Constituton
Some helpful suggestions by Dr Shameem on eradicating institutional racism (the CERD recommendations), corruption and the Ombudsman's Office, and the State's limitation of rights. --Ed.
Comments on the Government’s draft Fiji Constitution 2013
in response to Government’s request for feedback
By Dr Shaista Shameem
My few short comments on the Government’s draft 2013 Constitution are as follows:
The main principles of constitutional governance promoted by the Government in its public statements are:
- elimination of institutionalised racial discrimination;
- elimination of corruption and bad governance; and
- protection of all constitutional rights, including economic, environmental and social rights.
- Whether the draft Constitution 2013 is consistent with the Government’s expressed principles of constitutional governance and with international law.
(i) Elimination of institutionalized racial discrimination
The draft Constitution 2013 provides equal rights for all irrespective of race or ethnicity.
The draft does not accord with important 2012 recommendations of the United Nations Committee on the Elimination of All Forms of Discrimination1 which Fiji is obliged to follow as a State Party to the International Convention on the Elimination of All Forms of Discrimination.
The CERD Committee recommended to the Fiji Government as follows:
(a) Disaggregated data to be made available on the socio-economic situation of Fiji’s different ethnic groups to show which groups suffer socio-economic disadvantage
(b) Fiji to impose special measures (affirmative action) to improve the participation of minority groups in public administration and politics since, currently, minority groups are disadvantaged in these areas. Any special measures to be based on disaggregated data which should be publicly available.
(c) Fiji to enact specific legislation against racial discrimination- especially law which criminalises racial motives as an aggravating factor in criminal activity.
(d) Fiji to secure the free, prior and informed consent and consultation of the indigenous peoples regarding their permanent rights as a group.
(e) In 2013 Fiji to report back to the Committee on (i) minority participation in public and political life and its affirmative action plans to restore balance in these areas; (ii) disaggregated data on protection of economic, social and cultural rights of minority groups; and (iii) rights of indigenous peoples.
My Recommendations on (i):
- that the Fiji Government ensure that the draft 2013 Constitution is consistent with the 2012 recommendations of the CERD Committee so as to eradicate institutionalized racial discrimination in Fiji..
- that the Fiji Government declare, in good faith and in adherence to its own theory of constitutional governance, that individuals and groups in Fiji can petition the CERD Committee through the Article 14 procedure of the Convention on the Elimination of All Forms of Racial Discrimination:
Art. 14 CERD: A State Party may at any time declare that it recognises the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State party of any of the rights set forth in this Convention.
- Elimination of Corruption and Bad Governance
The draft 2013 Constitution contains the section 141 provision on accountability and transparency of all public officers in the declaration of their assets, liabilities and financial interests.
Whistleblowers will be protected by law.
- There is a clash between section 141 wide-ranging right of the public to personal information of public officers and the right to personal privacy protected by section 24, as well as the right to security (especially security of family members including children) provided by section 130 (2) of the Constitution.
- The removal of the Office of Ombudsman from the draft 2013 Constitution means that the free service previously available for people alleging mal-administration or misconduct by public officers has been eliminated.
My Recommendations on (ii):
- Section 141 should contain limitations on the type and extent of public access to personal information
- The Ombudsman’s Office as a free (constitutional) public service for investigation of maladministration should be retained in the Constitution (as per the People’s Charter) despite the new section 16 Executive and Administrative Justice which can only be enforced by the courts, thus making it expensive and cumbersome for the ordinary people to access.
(iii) Constitutional protection of all human rights, including economic, environmental and social rights
Additional rights have been formally included in the Government’s draft Constitution, incorporating elements from the Social Justice (Compact) provisions of the 1997 Constitution.
(i) The Bill of Rights provisions do not include an important clause to curb absolute state authority – missing is the phrase ..’as long as it (State limitation of rights) is reasonable and justifiable in a free and democratic society’. This phrase was included in all the relevant provisions of the 1997 Constitution and is a feature of international human rights law.
The phrase means that it is permitted for a State to limit some (not all) fundamental rights as long as those limitations ‘would be reasonable and justifiable in a free and democratic society’.
This is the most serious flaw in the Government’s draft Constitution and affects the whole Constitution because it allows any government to impose limits on people’s rights even if those limits would not be allowed in a free and democratic society. The lack of justification of state limitations of rights to the courts is not cured by Sections 3 and 7 interpretation sections of the 2013 draft Constitution.
(ii) The definition of human rights is not included in the interpretation section of the Constitution
My Recommendation on (iii)
- The phrase ‘…as long as the limitation is reasonable and justifiable in a free and democratic society’ should be included in each relevant rights limitation in the Constitution. Without that inclusion, the Government’s draft Constitution 2013 is not fully human rights compliant, contrary to the Government’s statements to the people that their rights are protected by its draft.
- In view of the double-entrenchment of the Constitution - because any amendment can only be made by both Parliament and a public referendum with two thirds majority of the registered voters voting for it- it is very important that this phrase is included in the Constitution.
- The definition of human rights should be included in the interpretation section of the Constitution.
Despite its good points, the Government’s draft constitution 2013 does not represent a ‘social contract’, based on equality between the people of Fiji and the State, which is the fundamental principle of constitutional law.
In important respects it does not follow even its own expressed principles of constitutional governance.
It is an authoritarian constitution where the State’s authority is favoured above people’s rights, as evidenced by the Bill of Rights chapter, despite additional rights being provided.
It also ignores the CERD Committee’s 2012 recommendations on minority group protection.
A proper and informed discussion, rather than the rushed roadshow currently being performed by government, would have allowed the people of Fiji to have a meaningful input into what would be the supreme law directing all their actions in future in their own country.
With its draft 2013 Constitution, the Government seems to have lost a wonderful opportunity to write law in the public interest.
TWO IMPORTANT RECOMMENDATIONS: (i) The Government should comply with the recommendations of the CERD Committee; and (ii) the people of Fiji can insist that the phrase ‘…as long as any limitation (of rights) is reasonable and justifiable in a free and democratic society’ be added to each relevant provision of the Bill of Rights chapter. The inclusion of this phrase will cure many of the shortcomings of the Government’s draft Constitution 2013.