We, the People of Fiji
By Jioji Kotobalavu*
A constitution cannot be presumed to be the sourc of its own political legitimacy and legal validity”
Like the 1997 Constitution, the government's draft constitution opens with the proclamation that "We, the people of Fiji ... hereby establish this Constitution for the Republic of Fiji". This declaration is of public interest because it infers the people's participation in the preparation of the constitution and that they are in general agreement with its provisions on how we are to be governed as a state. In other words, it is a constitution made and owned by the people of Fiji.
People as source of authorityThis declaration is important, too, for a closely related reason. As stipulated in article 21 of the United Nations Universal Declaration of Human Rights, the will of the people shall be the basis of the authority of government.
A constitution sets the legal framework for the institutions and the distribution of powers, and the general rules and procedures, under which citizens in a state are to be governed. It provides constitutional protection for the basic rights and freedoms of every individual citizen. It lays down the values and principles to guide the formation and conduct of government in the best interests of all the people, and a national code of conduct which shall apply to all state and public office holders.
But an important point to note is that a constitution cannot be presumed to be the source of its own political legitimacy and legal validity. Anyone who has studied jurisprudence knows that where the rule of law and a genuine commitment to democracy prevail this has to come from an external source. It comes from where the political sovereignty of the state resides: the people. It is derived from the collective will of the people as expressed through their free and unfettered participation in the constitution-making process and their general consent to the outcome as embodied in the final text of the constitution.
Ensuring people's confidence in the ConstitutionThere is a third consideration that needs to be taken into account when evaluating and assessing the suitability and utility of a constitution in appropriately addressing the aspirations of the people. The people's immediate concerns are about their day to day survival, good education and secure jobs for their children, the security of their person and property, their human rights and fundamental freedoms as individual citizens, and their right and interests as individuals and communities to live their lives in accordance with their religious belief, culture, customs and traditions.
For the people, the test of a good constitution is whether it gives them the confidence that the machinery of government and public services, constitutional protections, and standards of personal and professional integrity and probity for national leadership, it provides will enable those entrusted with the constitution's implementation to deliver on their expectations. For this, it is crucially important that the people should be given a feedback by government that their submissions have been taken fairly into account along with an undertaking that they will have an opportunity to freely signify their general acceptance of the final proposed constitution.
Role of Government
No country in the world can claim that it has a perfect constitution. And no sensible person can insist that the unanimous support of the people should be a precondition for the legitimacy of a constitution. As another reality, we have to accept that in the absence of a parliament, the government of the day has to perform the lead and final role in the preparation and promulgation of the constitution. Not to do so would be an abnegation of its public duty and its own undertaking to return Fiji to constitutional democracy. The Ghai-Commission came within this prerogative but not outside it as some people seemed to have misconceived.
The government is to be commended for drawing from many of the Ghai-Commission's recommendations in preparing its draft constitution, for consulting directly with the people on this draft, and for its assurances that this was still work in progress and that people's submissions are being considered. Nevertheless, we come back to the point already made that the minimum requirement for the constitution's legitimacy and validity is the involvement and contribution of the people in the public consultations process to the maximum extent possible.
Learning from the pastHere, a pertinent question to consider is: what can we learn from the procedures followed in the preparation and promulgation of the 1997 Constitution and the political consequences as manifested in the results of the 1999 General Elections, the first elections under this Constitution.
The people were directly involved through their submissions in public consultations conducted country-wide by the independent Reeves Commission. The final draft of the 1997 Constitution and its promulgation were then left to government and parliament. In this, Parliament was assisted by a joint parliamentary committee of government and opposition representatives, led by prime minister Sitiveni Rabuka and leader of the opposition Jai Ram Reddy.
On hindsight, perhaps the most important lesson we can learn from the 1997 constitution-making process was that in the eyes of many people the democratic process followed was still incomplete in that there was no public referendum to give the people a final and direct say in the constitution that was promulgated in their name. The consequence was that the 1999 General Elections were easily exploited by the less scrupulous of the competing parties to stoke up public misgivings about the 1997 Constitution as political expediency to capture seats away from the two main sitting parties. They succeeded and the result: both the two principal architects of the 1997 Constitution and their political parties were decisively defeated. And the very sad irony of this was that Mr Rabuka and Mr Reddy were the two best political leaders at the time to implement the 1997 Constitution and its vision of a united Fiji to be facilitated through a multi-party government.
Merits of public referendum
So, if we are to learn from our political past, the people should see merit in encouraging the government to submit its final draft to a public referendum for approval even through a simple absolute majority affirmative vote of 50 per cent plus one of the votes validly cast.
Such a democratic approach to the finalization and promulgation of the new constitution will yield the following positive outcomes, both for the government and the country as a whole.
Firstly, it legitimizes and validates the new constitution as the successor to the 1997 Constitution.
Secondly, it renders a positive public indication of majority popular acquiescence in the authority of the government. This in turn should open the way for those overseas governments that currently regard the government only as a de facto entity to elevate their recognition to full de jure status, and along with that, Fiji's re-admission to the Pacific Islands Forum and the Commonwealth.
Thirdly, it should facilitate the holding of the 2014 General Elections by helping to create the environment of goodwill necessary for the people to freely choose the political leader and party who in their view offer the best prospects of honest, responsible and benevolent government for all Fijians.
* Jioji Kotobalavu is a retired public service permanent secretary/CEO in the Prime Minister's Office where he served under four of Fiji's prime ministers since independence in 1970. He is a Master of Arts graduate from Auckland University and he studied international law and diplomacy at Oxford University.