Constitution Submission by Prof Vijay Naidu

Submission to Constitution Commission 2012 by Vijay Naidu, Raiwai, Suva

Introduction
Fiji is a beautiful country with generally peaceful, kindly and caring people from diverse cultural backgrounds which they have shared with each other.  Kava or yaqona is the national beverage, and curry and ‘lovo’  are our preferred food. The iTaukei people and cultures have values and norms worthy of emulation by all citizens.

English is a common language for all of us, and increasingly Bauan Fijian and Fiji Bhat are also becoming more widely used.  It has a great potential to become an integrated, equitable and peaceful multi-ethnic state, “the way the world should be” . Besides the colonial heritage that has created the Fijian state, Fiji’s multi-ethnic and multi-religious character and also divided the citizens into racial compartments, political and community leaders as well as opinion makers have fostered ethnic (racial) consciousness and divisions. For over a century, inter-ethnic distrust has been fomented and nurtured at the expense of national integration and equitable development.  Virulent ethno-nationalism and Fiji’s 5 coups (1977, 1987, 2000, and 2006) can be explained in terms of powerful vested interests or fractions of such interests seeking to grab power and privileges that come with it. Sadly, some of the most educated in the country have been the primary ethnic fear mongers although they had been most exposed to the values of equality and democracy.

The country’s 3 constitutions (1970, 1990 and 1997) failed to facilitate the creation of a common national identity or a sense of “unity in diversity”. iTaukei paramountcy, General Voter privileges and Indo-Fijian call for equality of treatment could not be reconciled. Political leaders and political parties schooled in ethnic thinking and rewarded by electoral systems that fostered communalism and outright racism failed to heal the rifts left behind by colonial divide and rule policies of separate development. Both institutional and inter-personal racism have existed in this country.  In the last 25 years, racism together with political, social and economic insecurity have resulted in more than a third of the Indo-Fijian citizens migrating for good, and they have been followed by citizens of other ethnicities including  iTaukei.

For a long time, iTaukei leaders have promoted ethnic fears about domination by Indo-Fijians (this fear and distrust is deeply held) and this has been the basis for their past and current call for separate ethnic representation. With the massive demographic transition that has occurred over the last 25 years, there is no rational reason whatsoever, for the deferment of the electoral principle of ‘one person, one vote, and one value’.  Currently, ethnic Fijians make up 59.44% of Fiji’s total inhabitants, and Indo-Fijians 34.78%. It is estimated that in 2022, (in 10 years time), the former would constitute 64.38% and the latter 29.70%.

Non-Negotiables for Constitution making
The non-negotiables for constitution making that have been stipulated by the government are laudable, and provide a useful and progressive framework for the formulation of the constitution. I firmly support common and equal citizenry, a secular state, the removal of systematic corruption, an independent judiciary, elimination of discrimination, good and transparent governance, social justice, one person one vote one value, the elimination of ethnic voting, proportional representation and voting age to be 18. These are in line with universal values and principles.

I welcome very much the common name of Fijian for all Fiji’s people. Although a number of previous Prime Ministers namely Ratu Sir Kamisese Mara, Dr Timoci Bavadra and Major – General Sitiveni Rabuka have said that they wanted all citizens to be called Fijians, this was only put into practice by the current government.  The term ‘Fiji Islanders’ stipulated by the 1997 Constitution has not been popular.

The adoption of a common name will enhance the prospects of greater common identity that has escaped us this far.  I also welcome the acceptance of dual and multiple citizenship for Fiji’s citizens, and the more liberal approach to permanent residential status.  With respect to the common name for all Fiji citizens, the learned members of the Commission would know that the country’s name, Fiji is based on a mispronunciation of Viti by some Tongan informants to early European voyagers. If there is a widely held view that ‘Fijians’ should be retained exclusively for indigenous Fijians, than an alternative term that could be used for everyone is ‘Vitians’. This may necessitate the changing of Fiji’s name to Viti.

Given that the well-established name of our national airlines, ‘Air Pacific’ could be changed overnight (for rather dubious reasons), then it is surely feasible to change the country’s name to what it ought to  be!

I will now discuss various constitutional issues and values that I think the Commission should consider.

Constitutional Commissions
Besides the London talks relating to our independence constitution, the country has had 6 constitutional (review) commissions beginning with the Street Commission on Fiji’s electoral system, the post 1987 coup Falvey and Manueli commissions, and Reeves Commission, and the aborted post-2000 coup Ravuvu Commission, and now after the 2006 coup, we have the ‘Ghai Commission’.  The five members of this commission are reputable and highly respected persons. While a good number of people are tired of frequent constitution-making , and skeptics are asking whether a near ‘perfect constitution’ for Fiji will not be overthrown in the foreseeable future, many are looking forward to a constitution that will help towards creating an equitable, inclusive and just multi-ethnic nation of our culturally diverse people.

National Integration, national unity and nation building
Besides the participatory formulation and adoption of Fiji’s new inclusive and democratic national constitution (the 2013 Constitution), there will be the on-going need to have deliberate policies that foster common national identity, shared values and sense of belonging. While English has remained the dominant national language, and government has encouraged the teaching of Bauan Fijian and Hindi in schools, there is a need to promote to a greater extent Bauan Fijian as a national lingua franca.

The Republic of Fiji
For the last 25 years Fiji has been a farce of a republic. A republic denotes that sovereignty is vested in the people of the country, the people are sovereign. Since 1987, there are good reasons to doubt if our people were ever sovereign, when power resided in certain vested interests, and in the barrel of guns.

 We have flown a flag which primarily contains the flag of our former colonial ruler, ‘the Union Jack’ and a national emblem that among other colonial symbols include a lion, an animal that is hardly endogenous to Fiji, and indeed to Oceania. Until this year, it was ironic that we continued to celebrate a ‘Queen’s holiday’. Moreover, our republican currency carries the image of our former monarch’s head. This has been a strange ‘republic indeed’. Compared to Papua Guinea, the Solomon Islands, Vanuatu, Samoa,Tonga, Kiribati, Nauru, Marshall Islands, Palau, FSM and even Tokalau we are backward in terms of our national flag.  I would like to see a genuinely Fiji flag that symbolizes our nation. We have many endogenous flora and fauna, and indigenous artefacts that could be used with the background of the ‘noble banner blue’.  We should move quickly to a Fiji flag competition and adopt one that reflects our national aspirations best.

The Electoral Principle
The new constitution must strongly promote the electoral principle of representation for citizens at local and national levels. This will move us more firmly towards genuine representative and participatory democracy. The proportionate electoral system is the way forward for Fiji.  With the demographic transformation underway (see appendix A), the great fear of ‘one person, one vote, one value’ (or ‘common roll’) should vanish forever. In fact an emerging issue will be the protection of minority interests.

The President
The President of the Republic to be representative of all the people and symbol of national unity must to elected by all voting age citizens.

The Senate
The Senate as an unelected body should be abolished. A small country with less than a million people should not have the added burden of a bicameral legislature.
Savings from not having an ‘upper house’ at the national level, could be used to strengthen local government at the district and municipal level. This will contribute to further nurturing of a democratic culture.

The Great Council of Chiefs
There were several issues about the GCC which I can recount verbally, but the reason for its existence became redundant once iTaukei representatives began representing iTaukei electorates. In its original formulation, the GCC was advisory to the colonial governor about iTaukei matters. It has no such role in a democratic republic where MPs and Ministers do not need such an advisory body.  Comments relating to the wasteful use of tax payers’ money for a bicameral legislature apply.

The Parliament
Proportional representation that puts the power of electoral choices in voters’ hands is strongly supported. Constituencies should be large (divisional or national) and multi-member.  The total membership of parliament should be no more than 50, and cabinet numbers should be between 12 and 15. The role of political party bosses and agents should be circumscribed. MPs should follow a Code of Practice. All MPs must undergo induction and training on being an MP. Such training should include parliamentary procedures, modes of communication, civility, financial probity, national values and the responsibilities of national leadership.

A system of committees similar to the 1997 Constitution arrangement should provide multi-party collaboration relating in all proposed legislative changes.

I support workable mechanisms of power sharing.

Local Government
There is a need to address the separate administration of citizens at the local level. The system of local government has not been democratic or responsive to the needs of the people. They have continued to divide citizens along ethnic lines. Models of local government that unite people, effectively facilitate participatory democracy (irrespective of ethnicity or gender) and provide efficient services should be reviewed, and an appropriate system of local government must be adapted and adopted for Fiji.

Political Parties
The constitution should provide a framework for legislation that furnishes clear criteria for who can stand in elections for public offices, and the organization, membership and funding of political parties. There must be a code of conduct for political leaders and state officials.

Political parties should have constitutions based on adherence to democratic principles, and non-ethnic based membership and encourage young persons and women’s involvement in their leadership positions.

System of Government
The system of Government requires some reflection. Historically, the parliamentary system in Fiji largely meant an ineffectual opposition, which given its ethnic-make up and that of the government’s basically led to perceptions of adversarial politics based on ‘race’. Representatives of one ‘race’ proposed, and representatives of another ‘race’ opposed. A system of patronage linked the Prime Minister’s office to settlements and villages. Needless to say, this kind of politics did not contributed to national integration. General elections were times of anxiety because of ethnic tensions, and even the occasional violence. It also meant, that some of the most capable persons in politics never really became ministers of the state. If the Presidential system is likely to enable greater unity, and enable the most capable persons (both inside and outside parliament) to become members of cabinet, then it is a system that is worthy of adoption.

The Bill of Rights
The 1997 Constitution has a very good bill of rights which must not be diluted. Attempts to deprive the fundamental human rights of sexual minorities must be resisted. The red herring of ‘same sex marriage’ is being used as a scare tactic to deny fundamental human rights to such minorities.

Hitherto, there has been a tendency to dwell on civil and political rights, and not on economic and social rights. It is crucial that all citizens have rights to food, health, education, housing, employment (livelihood), and social protection. With global warming and sea level rise, and the increased vulnerability of citizens, social and economic rights are especially important.

Media freedom is a critical pillar for democratizing Fiji. Responsible journalism must be encouraged. Enabling legislation for civil society organisations and NGOs require urgent formulation and adoption. The freedom of information provision should be retained.

Affirmative Action Policies
There are considerable disadvantage among categories of citizens. These disadvantages include access to safe water, electricity, roads and other infrastructure, education, employment and livlihoods, health, business opportunities, and to land and other natural resources. There should be provision of social justice for these groups in the constitution. Affirmative action policies should be means tested, have measureable indicators, be evaluated, and be time bound.

Checks and Balances
The three arms of the state, the executive, the legislature and the judiciary should be independent of each other. An independent and adequately resourced Judicial Services Commission should be established.  The terms and conditions of judges and other judicial offices should be such that they enhance their independence.

Constitutional Officers such as the Electoral Commission, the Auditor General’s Office, the Ombudsperson, the Judicial Services Commission, and the Human Rights Commission must be independent and adequately resourced to maintain their autonomy.  The Parliament should appointment the head of each of these Commissions and senior judges.

Security Forces and Immunity
The Republic of Fiji Military Forces (RFMF) and the Fiji Police Force together with their various intelligent gathering entities and the Fiji Prisons and Correctional Service constitute the country’s security forces. While our soldiers have earned considerable international respect and standing, they have also executed coup detats that have negatively affected Fiji’s image as a peaceful country, further divided Fiji’s people, compelled up to 20% of its citizens to emigrate over the last 25 years, and seriously undermined economic and social development. The lives of Fiji’s young people have been blighted by the coups as unemployment, inequality and poverty have increased significantly. There should be an exit strategy for the perpetrators of the last coup so that the country can move forward but would not a blanket immunity (some heinous crimes have been committed by security personnel) encourage future military coups?

The country is unanimous in saying ‘never again to military coups’, and the Prime Minister himself has set out to end the ‘coup culture’. The 2006 coup is supposed to end all coups! However, the million dollar question, is how? Does not automatic assurance of immunity encourage further coups? What do we do to ensure, once and for all that there be no coups? This is a difficult question but one that we really need to give our considerable collective thought.

Serious consideration also needs to be given to the ethnic composition of our security forces, they are not representative of the demographic and gender composition of the country. Ethnic armies in multi-ethnic societies are generally not conducive to peace and stability. Another critical question that arises is does Fiji need a military force, given that we do not have enemies, and it is costly to maintain a standing army.

According to the Stockholm International Peace Research Institute (SIPRI) the scale of military expenditure  in this country is high when compared to our larger neighbours. In 2008 our military expenditure was 1.5% of GDP, compared to PNG’s 0.4%, New Zealand’s 1% and Indonesia’s 1.1%.  While UN peace keeping and employment have been major reasons for a rather large standing army, it is never been clear the extent to which the country benefits financially from peace keeping engagements with the UN.

The police force has been seriously undermined by periodic military take overs. We really do need a professional police force that employs personnel on merit, and promotes them on meritorious performance.

Entrenched Provisions in the Constitution
The entrenched clauses in the 1997 Constitution should be reviewed and updated. Land ownership and lease arrangements should be explicit and entrenched requiring two third majority of the parliament support for any amendment.

Land and Natural Resources (terrestrial and marine)
Both before and after independence ethnic fear mongers have used land as a political football.  Although the 1970 Constitution provided ‘iron clad’ guarantee that no change in land ownership/control was possible without the agreement of iTaukei MPs and Senators (including chiefs), politicians dishonestly maintained a change in government from the established dominant party will result in iTaukei losing their land.

Currently, close to 90% of Fiji’s land area is under customary tenure, owned and controlled by iTaukei landowners. This land area has increased from 84% as formerly state-owned or crown land has been returned to landowners. Customary owned land is inalienable and it is protected by law, and has been part of the entrenched clauses of previous constitutions. The ownership and control of such land is highly unequal, varying from mataqali to mataqali with women and youth having little or no say on how it is used, and until recently, how any earnings are shared. The continuation of the paternalistic iTaukei land Trust Board (previously Native Land Trust Board) further complicates the administration, use and lease of such lands.

For non-iTaukei , the logic of returning state own land to landowners is mindboggling as customary land owners have largely failed to use their existing land resources productively.  Many young iTaukie like young people of other ethnicities do not see themselves being agriculturalists. The refusal of land owners to renew agricultural leases under ALTA since the mid-1990s has been a significant (but not the only) factor in the massive decline in agricultural production in general, and sugar cane production in particular.

Some 7% of the land is free hold, bought and sold in the market. Only 3% of Fiji’s land remain in state hand. While land has been regarded as a sensitive matter,and has been politicized, not all land is in demand. As indicated below, large areas of the country is being depopulated. Land in these places have little value whereas in localities in and around towns and cities, and in proximity to tourism and mining sites are in demand, and are often beyond the ability of average citizens to purchase, and even lease. Interestingly there is a ‘hierarchy’ of perception of relative value of the different categories of land.
Customary or ‘native’ land are seen as least desirable by all Fijians (including iTaukei), and freehold land is regarded as the most valued with state-owned land falling in the middle.  As freehold land is available for sale in the international market and foreigners may purchase such land , in many localities, free hold properties are beyond the purchasing power of ‘locals’. Perhaps, it is time to prohibit the sale of land to non-Fiji citizens. One could argue that there is an artificial shortage of land in Fiji that pushes the price of freehold land.

Several changes have taken place in both the population composition and settlement patterns. First, Appendix A clearly shows that projections of iTaukei and the rest of Fiji’s population clearly indicating that within a decade, iTaukei will comprise more than two thirds of the population. Second, there has been massive urbanization in the last 20 years, this trend will continue into the foreseeable future. Many rural areas and outer islands, including Vanua Levu have been depopulated. A good 80% of the population live in Viti Levu and more and more people are moving to the ‘main island’. I would hazard that these days most iTaukei no longer live in their province of birth and vanua.

In the informal settlements (squatter settlements) which now account for 15-20% of  households in the country, there are just as many iTaukei as there are Indo-Fijians. If we add the ‘vakavanua’ (customary arrangements but in effect ‘tenant at will’) arrangements there are more iTaukei in insecure tenancies than Indo-Fijians.  So many iTaukei, Indo-Fijians, Mixed Race persons, Solomoni, Ikiribati and other minorities are landless.  We need to make land more accessible for those seeking to build houses, and to farm. Fiji desperately needs a land policy that is less tied to ‘racial blinkers’ of the past. Policies need to be adopted to penalize all land owners who have large areas of arable land that are unused or inefficiently used, as well as to put a stop to the extortion that is currently underway in numerous informal ‘tenant at will’ arrangements.

Access to other natural resources, both terrestrial and marine is on-going concern for many Fijians irrespective of ethnicity.

Constitutional Change
All constitutions require amendments from time to time. Amendments generally should be by simple majority except for entrenched provisions. The idea of periodic review of the constitution is a good one.

Both provisions should be included in Fiji’s new constitution.

Constitutional Assembly
It is apparent that this body will play an important role in the adoption and ultimately, the legitimacy of the new Constitution. Given the largely retrograde part played by the Joint Parliamentary Select Committee in the finalization of the provisions of the 1997 Constitution, it is absolutely pivotal that those appointed to be members of the Assembly are duly educated on the values, principles, aspirations, and institutions being adopted and enabled in the Constitution. For far too long, Fiji citizens of all ethnicities have been imbued with communal and even narrowly religious thinking to be trusted to put national interests such as the adoption of the Constitution ahead of their  ethnic preoccupation and religious  bigotry.

As in the case of the Reeves Commission recommendations relating to the extensive amendments to the 1990 Constitution, it would indeed be shameful to see the hard work of the 2012 Constitution Commission negated by reactionary and narrow ethnic interests. We need visionaries for a better Fiji in the Assembly!

Please contact me for further information:

Professor Vijay Naidu
136 Nailuva Road
Raiwai
Suva
Ph 3232093
3386403

APPENDIX A
POPULATION PROJECTIONS FOR FIJI
SOURCE:- FIBOS – 2012