Legality and Legitimacy Are Not Synonyms

Signing of the Deed of Cession 1874

By Na Lawedua

The whole issue of legality is an interesting one. The ceding of countries to England, France, Belgium and Holland in the view of many had no legal basis at all.

So, even if some 13 Fijian chiefs agreed to cession, one must ask whether those chiefs had legal sovereignty over all the people; whether Cakabau had  the authority to cede Fiji to Britain, and whether the guerrilla warfare practised by the hill tribes against the British was a rebellion, as the history books say, or simply an exercise in the lawful protection of their tribal sovereignty? 

If Cession had no legal basis, what then was the status of the 1970, the 1990 and the 1997 constituitions? All three were passed by undemocratic means, with the 1997 Constitution ratified by a Parliament which had been installed by the 1990 Constitution which had been ratified by Decree!

The issue of legality is one which historically leaves us in a position of not being able to move forward at all, unless we now, at this time, aim for ratification through a representative and consensus gathering process which gives legitimacy through the democratisation of consultaion and opinion gathering.

That is not to say that we should never ask ourselves what the law says about the legality of a government but it does show that legitimacy and legality are two different things. Slavery was legal, but that legality did not give it legitimacy.

I think legitimacy exists in a substantive democracy. Legitimacy is about popular acceptance (not just submission and acquiescence); it is about popular consultation and agreement, and about respecting fundamental human rights and dignity.

If the current process in Fiji is able to obtain that form of legitimacy, then the legality or otherwise of the government which set up the process, becomes as marginal as the question of the legality of the 1997 Constitution —or the legality of British colonial rule.

The Constituent Assembly make up is important.  It should not just be a gathering of  Fiji's elites: the Crisis Centre, the NGO elite, the donor elite, the corporate elite, and so on. If this happens, the Assembly will undermine legitimacy, not build it. The Assembly must be far more representative. to be legitimate.

Historical Footnote: Within a year of the signing of the Deed of Cession, some 40,000 Fijians, over one-quarter of the estimated population of 150,000, died from measles.  Following the signing Cakobau and his family were feted with a trip to Sydney. They brought the  disease (and gonorrhoea) back with them. To avoid embarrassment, H.M.S. Dido flew no quarantine flag as it anchored off  Levuka and Cakobau's eldest son Ratu Timoci, infected with measles and gonorrhea, went ashore. The following day, January 22 1875, 69 chiefs met to decide what to do about possiible rebellion against Cession.  Several carried measles back with them to their vanua.