The Constituent Assembly

Part I. The Facts and Some Opinions

By Crosbie Walsh

Despite the constant sniping, mainly by Mahendra Chaudhry, first at the legality and credentials of the Constitution Commission, then at the refusal of government to release the draft constitution for immediate public discussion, and now at the composition and credentials of the yet-to-be appointed Constituent Assembly, some 300 people and organizations have put their names forward hoping to be be chosen as members of the Constituent Assembly that is scheduled to start deliberations next week. 

 The Assembly is probably the final opportunity in the lead up the 2014 elections for Fiji to "get it right."

This second article on the constitution dialogue process comes in two parts. Part I summarises the main provisions of the Constituent Assembly Decree, and Part II, to be published tomorrow, will deal with parts of the Decree and the draft constitution that are likely to be most contentious.

The Decree

The Assembly was established by the Fiji Constitutional Process (Constituent Assembly and Adoption of Constitution) Decree, No. 58 of 2012. Its purpose, indicated in its title, is the adoption, after discussion and possible modification, of the draft constitution prepared by the Constitution Commission and presented by chairperson Prof Yash Ghai to the President on December 21.

Membership

Members, chosen by the PM and chaired by a person appointed by the PM, are intended 9 (2) to "reflect the diversity of the people of Fiji and include, but not limited to, the following—(i) Government; (ii) registered political parties; (iii) faith based organisations;(iv) representatives of employers; (v) members of the business community; (vi) trade unions;

(vii) farmers and members of rural communities; (viii) Republic of Fiji Military Forces; (ix) national organisations; (x) women; (xi) persons with disability;(xii) youth; (xiii) pensioners; and (xiv) other Fijian-registered representative civil society groups."

Members 10 (1) shall be Fiji citizens, experienced in public affairs, or distinguished in his or her profession or sphere of life; and be of honesty and integrity in every respect. A person is not eligible for appointment if (2) they are of unsound mind, have been convicted of an offence of dishonesty or an offence carrying a penalty of more than six

months in prison, or if they have been removed from public office for misconduct of any type.

Oath of office and code of conduct

All members will swear an oath of office to "faithfully and fully, impartially and to the best

of my ability carry out my obligations and fulfil the trust reposed in me as _________________ of the Constituent

Assembly of Fiji faithfully and conscientiously with the best interests of the people of Fiji at heart, and without fear,

favour, bias, ill-will or prejudice." And all are expected to comply with a code of conduct that, among other things,

has members working in the "best interests of the nation and people of Fiji as a whole"; to be open with both the Assembly and the people; to avoid any conflict of interest; and attend all meetings. Members are bound by the decisions of the Assembly and should not express dissent, publicly or privately, other than in a meeting of the Assembly. Further, members "must not accept any bribe, benefit or favour, including hospitality, from any person who would

stand to gain from any decision the Assembly might make." They must also (6) "respect the role of the Chair of the Assembly as spokesperson for the Assembly. The implications are that requests for information from the media or from individuals or organisations must be referred to the Chair. Any invitation to attend any meeting should be cleared with the Chair..." Members must also (7) "not ... reveal any details of discussions that might endanger the development

of consensus." A member violating this code may be removed from office.

Constraints

The Assembly's work will, as far a possible, be inclusive, participatory and transparent. In discussing the draft constitution the Assembly will heed the "non-negotiable principles" and the recommendations of the People's Charter.

The adopted constitution must provide for immunity which "shall not be reviewed, amended or revoked by the new Parliament or any subsequent Parliament."

Functions

The Assembly shall 8 (1) represent the views of Fijians; debate the draft Constitution, as well as the Explanatory Report of the Commission, and the views of the people expressed on the draft Constitution; keep the people fully informed of the progress of debate and adoption of the draft Constitution in its passage through the Constituent Assembly; and adopt the draft Constitution.

Open to Media

The Assembly shall operate in as open a way as possible. The media may attend "except in the most exceptional circumstances" but sessions may be closed to the public it is thought not to be in the best interests of reaching of consensus. The Secretariat shall supply the media with regular and accurate information about the work of the Assembly, and endeavour to assist the media to understand the issues in order to enhance public understanding.

Organization

The Assembly may decide to 13 (1) form thematic committees similar to those used in discussion on the People's Charter. There will also be 13 (2) a Steering Committee chaired by the Chair of the Assembly and comprising the Chairs of the thematic committees; and any other person that the Chair thinks fit.

Procedures

In all discussion on the draft constitution and possible changes the Assembly shall 15 (2) shall "at all times strive to reach its decisions by consensus." If this proves impossible, a vote must be postponed for at least 24 hours in order to maximise the possibility of achieving consensus; and votes must be "by a majority of at least two-thirds of all the members present; and not be by secret ballot."

Adopting the draft constitution

Once the draft is accepted by the Assembly, it must Part 3.21 (1) be forwarded to the President within seven days when it will then be forwarded to (2) the Chief Justice who, within seven days, shall "appoint a five member Tribunal, which shall consider whether the draft Constitution complies with the principles and values contained in paragraphs (d) and (e) of section 3 and subsections (2) and (3) of section 8 of this Decree." Section 3 details the "non-negotiable principles" and Section 8 (2) timelines and (3) immunity provisions. See notes below.

The Tribunal ...

Shall comprise the Chief Justice as Chair, and four others [presumably appointed by the CJ], at least two of whom shall be international experts. The Tribunal has 14 days to review the draft and report back to the President. 

If the report concludes that the draft does not comply with the principles and values noted above the President shall refer the draft and the Tribunal's report to the Assembly for necessary amendment. The Assembly then has seven days to make the necessary amendments and present the draft to the President for assent. In turn, the President has seven days to assent. Unless unexpected circumstances occur, the new Constitution becomes law on the day following the date of assent by the President.

Sections of the Decree on the "non-negotiable principles" and immunity

3. The purpose of this Decree is to adopt a Constitution for Fiji that—

(a) results from full, inclusive and fair participation of Fijians;

(b) meets the needs of Fiji and the aspirations of its people;

(c) unites the people of Fiji;

(d) includes provisions appropriately designed to achieve, among others,—

(i) true democracy; and

(ii) respect for, and protection and promotion of, human rights; and

(e) includes provisions that achieve the following non-negotiable principles and values—

(i) a common and equal citizenry;

(ii) a secular state;

(iii) the removal of systemic corruption;

(iv) an independent judiciary;

(v) elimination of discrimination;

(vi) good and transparent governance;

(vii) social justice;

(viii) one person, one vote, one value;

(ix) the elimination of ethnic voting;

(x) proportional representation; and

(xi) voting age of 18 years.

8 (2) When adopting the draft Constitution, the Assembly shall consider appropriate and workable provisions acceptable to the people of Fiji for—

(a) timelines and time limits for the implementation of the Constitution, including for the enactment of new legislation, the creation of new institutions and offices and the phasing in of those provisions of the Constitution that cannot be immediately effective; and

(b) mechanisms to ensure the adherence to the timelines and the transitional arrangements generally.

(3) Notwithstanding anything contained in this Decree, when the Assembly adopts the draft Constitution, it shall ensure that appropriate provision is included in the draft Constitution for immunity which—

(a) shall not be reviewed, amended or revoked by the new Parliament or any subsequent Parliament;

(b) continues the immunity granted under Chapter XIV of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990, as saved by the Constitution (Amendment) Act 1997;

(c) gives such immunity, as is provided in Limitation of Liability for Prescribed Political Events Decree 2010, to all persons listed as ‘prescribed persons’ under that Decree for all events defined as ‘prescribed political events’ in that Decree;

(d) gives immunity, in a form that is not in any way inferior to the immunity provided in the Limitation of Liability for Prescribed Political Events Decree 2010, to His Excellency the President, members of the Republic of Fiji Military Forces, Fiji Police Force, Fiji Corrections Services, and individuals appointed to Cabinet or to any State service from 5th December, 2006 up to the first sitting of Parliament elected under the new Constitution; provided however that any immunity for the period from the date of the commencement of this Decree to the first sitting of Parliament elected under the new Constitution shall not apply to any act or omission that constitutes an offence under sections 77 to 390 of the Crimes Decree 2009; and

(e) shall exclude the jurisdiction of any court, tribunal or any other adjudicating body from entertaining any challenge to the provision on immunity.