The Constitution Commission: No “Push Over” But it Will Have its Work Cut Out

By Crosbie Walsh

It's a pity the Pacific Forum foreign ministers visited Fiji when they did. Had they waited two weeks until after the arrival of Professor Yash Ghai they'd have been far more positive about the steps Fiji is taking towards elections in 2014 and, who knows, sanctions by Australian, New Zealand, the Commonwealth and the E.U. might have been lifted. Sanctions against the troubled sugar industry are especially worrisome because of the large number of people it employs and its importance to the economy. 

Prof Yash Ghai

Kenyan-born Yash Ghai is the chairman of the five-person Constitution Commission set up by the government that will do much to shape Fiji's future —and he is no push over.   In 2004 he resigned as head of the Kenya constitution review commission over delays brought about by that government; in 2008 he resigned suddenly as Special Representative for the UN Secretary General in Cambodia after bitter arguments with the Cambodian government, and last year he called for the impeachment of Kenya's President for lobbying against the genocide trials of his associates by the International Criminal Court. His appointment put an end to the speculation that the Fiji Government would dominate the Commission.

Professor Ghai is a world-renowned constitutional scholar with special expertise in human rights in non-western societies. He has helped constitution reform in 15 countries, and has researched and taught law at a number of highly regarded universities including Yale, Harvard and the National University of Singapore.

He is no stranger to Fiji having been an advisor to the Fiji Labour Party when it was preparing its submissions on the 1997 Constitution, he was in Fiji immediately after the 2000 Speight Coup, and more recently he was the guest of the Citizens' Constitutional Forum for the launch on Constitution-Making and Reform, Options for the Process, a handbook he had co-authored.

In Fiji last week, he said Government's reform process was thorough, well thought out, responsive to various concerns and appeared to provide a good balance of input from ordinary people and experts. But he said Fiji’s laws should be restored to a state compatible with the guarantees of the Bill of Rights under Fiji’s 1997 constitution, and the current role of the military had to be addressed.  It is very important, he said, “to have mechanisms for expression of different views and attempt to develop some consensus.”

Appointment welcomed

Yash Ghai’s appointment has been generally welcomed but former prime ministers Lainesia Qarase and Mahendra Chaudhry are not altogether taken with a Constitution Commission and they think it unnecessary to write a new constitution. Their parties, the SDL and FLP, will be making submissions to the Commission but if they ask for no more than a return to the past (immediate elections, removal of the military from civil posts and only minor changes to the constitution) I think they are unlikely to impress the Commission.

A stronger opposition voice came from the overseas-based Coup4.5 blog which is violently anti-government. They claimed Professor Ghai is Bainimarama's “puppet” and is especially suspect because he supervised the Attorney-General's thesis. Further, they said, he criticised the electoral provisions the 1997 Constitution, and has been “closely associated” with the Citizens' Constitutional Forum, an NGO that has opposed all coups since 1987 but which has been critically supportive of the Government's roadmap to elections. It is hard to know how much support this view has on the streets of Suva but it is unlikely to find support among thinking Fijians. Ghai's credentials, and those of other Commission members, are just too strong, and the Commissionn could well be holding the only light at the end of the tunnel.

The Commission's mandate

Government has given the Commission — which will hear submissions from around the country over the next three months and then take another three months to prepare and submit its recommendations to a Constituent Assembly— a reasonably wide mandate, but Bainimarama has made it clear that their findings must be in line with the fundamental values and principles of the People's Charter for Change which was approved by approximately two-thirds of voting adults in 2008, and not contravene what he has called “non-negotiable elements”, namely, a common and equal citizenry, a secular state, an independent judiciary, the removal of systematic corruption, elimination of discrimination, good and transparent governance, social justice, one person-one vote-one value, the elimination of ethnic voting, proportional representation and a voting age of 18.

The Commission will submit its draft constitution for consideration, amendment and approval to the Constituent Assembly that will meet in January next year. It is expected the final constitution will be ready for Presidential approval eleven months later, in February 2013. 

The composition of the Assembly is not yet known but as government will take advice on its membership it is expected to be reasonable representative. In all likelihood it will be modelled on similar lines to the membership of the National Committee for Building a Better Fiji, the committee that drafted the People's Charter. Invitations to join the NCBBF were send to political parties, religious bodies, NGOs, and other representatives of civil society. If all goes as planned, the people of Fiji will have from January 2013 to September 2014 to familiarise themselves with Fiji's fourth constitution since Independence in 1970, and its old and new political parties should have ample time to prepare for the county's first election where parties and electorates are not formed on the basis of race.

The Commissioners

Prof Christine Murray

The five-person Constitution Commission appears well balanced. Two distinguished overseas overseas professors provide the legal expertise and the three local members represent widely different facets of Fiji society. It is probably the first distinguished grouping where women outnumber men.

In addition to Professor Ghai, the other non-Fijian is South African Professor Christine Murray, professor of constitutional and human rights law at the University of Cape Town. She helped draft the South African and Kenyan constitutions, and has taught, researched and published on issues very relevant to the Commission's work,  such as international and constitutional law, human rights law, gender equality and the constitutional rights of women. She had these reassuring words to say on her appointment:

“Clearly to have proper public consultations, the public has to be able to speak freely. And from what I understand of Fijian politics at the moment, something is going to have to be done about that. Of the members of the commission, the only person I know is Professor Ghai, and I know that he will be insistent as chairperson that the process is open and that it gives people a real opportunity to contribute.”

Dr Taufa Vakatale

The Commission includes three Fiji appointees. The most well known is probably Dr Taufa Vakatale. She holds a Doctors in Letters honoris causa from the University of St Andrews (awarded for her "major contribution to the cause of Pacific women") and was Minister of Education, Science, and Technology from 1993-97 in Sitiveni Rabuka's SVT government. In 1997 she became Fiji's first female Deputy Prime Minister, a position she held until the SVT government was defeated in the 1999 elections. Earlier,  she was the first female Taukei principal of Adi Cakobau School and Chief Education Officer. In this role she helped establish Fiji's vocational centres and pioneer curriculum innovations in secondary education.

Peni Moore

Penelope (Peni) Moore adds an NGO dimension to the Commission, She is a human rights expert, and a veteran of the civil society and NGO movement. From 1987-93 she was the first coordinator for the Fiji Women's Rights Movement. She has been the Creative Director at Women's Action for Change (WAC) for 18 years, a role in which she worked to empower women and marginalized groups such as at-risk juveniles and former prisoners. She is also a commissioner in the Fiji Legal Aid Commission.

Prof Satendra Nandan (l)

 Professor Satendra Nandan taught in several secondary schools in Fiji and in 1969 he was a founding staff member at the University of the South Pacific. He was a National Federation Party MP from 1982 to 1986 when he joined the Fiji Labour Party. Elected on the FLP ticket in the 1987 elections, he served as Minister of Health and Social Welfare for one month (sic!)  before the Bavadra government was ousted by the "Rabuka" Coup. Following the coup, he accept a position at the Australian National University where he is currently Professor of Literature and Director of the Centre for Writing. He is also an Adjunct Professor of Humanities and the Arts at the University of Fiji. He has published several books and poems on Fiji, the best known probably being  Fiji: Paradise in Pieces published in 2000 by Flinders University.

The issues to consider

So, this is the group that will welcome opinions on how best to reform Fiji's Constitution. One would assume they will start with an appraisal of the 1997 Constitution and the decrees passed by the Bainimarama government.

Among the issues they will have to consider are how the president is to be appointed and what reserve powers he should exercise. He certainly will not be appointed by the Great Council of Chiefs as he was previously. And his reserve powers will need to be unambiguously stated to avoid the situation in 2007 when the Court found his action in deeming the Bainimarama coup legal and in 2009 when the Appeals Court deemed it illegal.

Government has abolished the GCC but the Commission is likely to receive recommendations for it continuance in some form. Most likely it will be stripped of its powers to appoint the President, Vice-President and members of Senate, powers that led to its politicisation. If reinstated, its authority will probably be returned to its tradition roles of advising government on Taukei affairs and resolving chiefly succession disputes.

Senate is another body abolished by Government.  Its members were nominated by the GCC, the PM and the Opposition, and one seat was reserved for Rotumans. Government has indicated that it does not seek its continuance but a modified Senate could provide expertise for Parliament if its members included a diversity of experts and/or representatives of different sectors of civil society. 

A case can be made that Senate or another body such as a "College of Cultures"  is needed that will concern itself with the cultures, languages and rights of Rotumans, KaiSolomoni, Banabans and other ethnic minorities. 

A decision will also be needed on what to do with Government's many decrees. They will probably need to be considered separately with recommendations that they be endorsed or not endorsed by the incoming government. It would be a tragedy if those dealing, for example, with women's rights, prostitution, and codes of ethnics were not included in the new laws. And even the controversial Media Development Decree needs consideration so that its positive elements are not lost. Fiji should not return to the old days when an ineffective Media Council was supposed to deal with complaints against the press.

The old constitution made provisions for the appointment of judges. The Fiji Law Society is unlikely to have its authority reinstated but some other, but truly independent, provision must be made.

The most critical and most arguable issues

The two most arguable issues are also the two most important because if the Commission and Assembly do not come up with something that is acceptable to the Bainimarama government, the military and civil society, it is unlikely there will be a satisfactory conclusion to the Commission's work.

First, the Commission has already targeted the need to find a resolution to the role of the military. Is it to have the “protective” role is has always claimed, long before the 2006 Coup, and if so, under what conditions and on whose authority will it operate? Or should it simply "return to the barracks" as several people have stated?  Unfortunately, expecting a “return to the barracks” — and probable down-sizing— as demanded by Government opponents is unrealistic unless its constitutional role is spelt out and accepted by all parties.

Secondly, there is the question of immunity. Many say Bainimarama and his team have committed treason and granting them immunity will excuse them from their “crimes” and remove a deterrent to further coup-makers. Government wants to go down in history as the government that ended the “coup culture.” This will not happen if the Commission and Assembly are unable to achieve a consensus on the military and immunity.

There is, however, a precedent of sorts. An earlier coup leader, Sitiveni Rabuka, was not only given immunity, he was made a life member of the GCC. But  his coup aims matched those of the Taukei government that followed. It is by no means sure this will be the case following the elections in 2014 even if a Bainimarama party forms government. It is not merely a matter of granting and obtaining immunity. Government members were given a Presidential pardon in 2007. A pardon or immunity has to be guaranteed to last —and that is by no means simple or certain. 

The problem will tax the legal skills of Professors Ghai and Murray who must at least to explore the legal possibilities of a way out for the Bainimarama government that appointed them.  Preferably, they need to make a firm recommendation to the Constituent Assembly. If they leave it to the Assembly alone, it is difficult to predict what will happen.  To ensure a peaceful future some accommodations may need to be made with the past.