The Constituent Assembly

Part II. Likely Points of Contention

By Crosbie Walsh

Even before the Assembly meets concerns have been raised about whether its membership will be truly representative. 

At one time, the FLP seems to want the political parties to be more heavily represented but now both Chaudhry and Beddoes say they will not serve on the Assembly. Perhaps they knew they would not be invited. The PM decides who from the political parties he will accept and, given the two gentlemen's erratic behaviour, it could be best for Fiji if they were not their party's representatives.  Or perhaps they seek to prove the Assembly is not representative — because it does  not include them. Who knows?

 They remind me of when I was very young playing with daisies. We'd sit in a circle and strip the flowers one petal at a time, calling "she loves me, she loves me not." Only when the last petal was pulled would we know whether we were loved or not.

Concern has also been expressed, and rumours abound, about who may be chosen as chairperson. A further concern is that Government and the military will also have representatives in the Assembly though I would have thought it obvious that, as key players, they would.

Probable areas not immediately agreed on

Once the Assembly meets there will be a number of issues that will not be immediately agreed. I would expect these to include the proposed restricted powers of the President, the abolition of Senate and the positions of Vice-President and, possibly, the Attorney-General, the restoration of the Great Council of Chiefs, and the number of MPs. The composition and authorities of the various recommended commissions, and the removal of clauses limiting human —and trade union— rights in the decrees passed by the Bainimarama Government, will also probably be contested, but I would expect all of these recommendations to be ultimately adopted.

There is also the questions of  immunity. It will have to granted, as insisted upon by Government and recommended, probably reluctantly, by the Commission, but I do not expect consensus. The chair may be forced to rule some speakers out of order, and I suspect this issue could be used as a rallying point for those opposed to Government to "go public." Readers should note that military personnel found guilty of human rights abuses will not been given immunity, and indeed a number of them are currently serving prison sentences.
 

Major sticking points

The major sticking points, on which agreement seems less likely, are the recommendations dealing with (a) the transition to parliamentary governance and the ongoing monitoring of parliamentary and other authority, especially that of the proposed National People's Assembly and (b) those affecting the military.

The draft also  recommends the  appointment of a 14-member Transition Advisory Council that would include two people nominated by the PM, one of them from the military; one by the Fiji Law Society, one each by the country's three Vice-Chancellors, three by civil society, the three chairs of the interim Electoral Commission, the Ethics and Integrity Commission and the Judicial Services Commission, and two persons from the Caretaker Government. This line up could see Government and the Military heavily outnumbered. I would therefore expect Government, and those in the Assembly who support Government, to hotly contest the TAC membership, and insist on some greater say in the appointments of the commissions mentioned, before they accept this recommendation.

Finally, I think Government will oppose the creation of the National People's Assembly unless it is convinced it is likely to be in what it sees to be the "best interests" of Fiji. The NPA will comprise 24 officers of state and 72 (36 men and 36 women) appointed representatives of civil society who will appoint the President and annually review progress on national goals.

The RFMF: obstacles ahead

Over the past few days Land Force Commander Col. Mosese Tikoitoga has made a number of public statements that should leave no one in any doubt about the military position of some recommendations in the draft constitution.

Ignore his forthright language. Army people tend to call spades spades. But listen closely to the inherent beliefs that underpin his remarks. The RFMF sees itself and its role in Fiji is in very different light from the Commission. It claims that only it could have brought about the reforms over the past six years.  The claim is not without justification, given that the  politicians have had since 1970 to build an inclusive and united nation, and in the 19 years since it became law they made not one move to  review the 1997 Constitution as recommended by the Reeves Commission. Instead, they have thrived on the racial division to the detriment of Fiji..

I see major obstacles ahead. The military is unlikely to accept the limited role prescribed in the draft, either now or for many years to come. If there are any doubts on this, note these words in its submission to the Constitution Commission: 

• We "will monitor the ongoing situation in parliament and in Fiji ensuring that what it had adopted since 2006 and through the People's Charter is fully implemented."(9); 
• "The RFMF remains the last bastion for law and order in Fiji" (41); We "will not allow the undermining of what has been achieved since 2006." 
• 42. The Forces cannot and will not be complacent in dealing with situations that undermine national interest. The developments that have occurred since 2006 cannot be abandoned or derailed. We need to move forward in a constructive manner with national interest at heart. The RFMF will not allow any individual, group and organizations or another State to sabotage the efforts of 2006. This new course will continue. The RFMF will ensure it continues, not only to 2014 but beyond.
• "The Commander and his Forces has a vision ... there are no other institutions that are capable of bringing about this change" (46);  
• The RFMF will continue to be responsible in ensuring at all times the security, defense and well being of Fiji and its people. It does not intend to diverse (sic!) from this commitment. 
• In addition, RFMF will be the guidance of the governance of this country, ensuring that peace, prosperity and good governance is practised and adhered to. (47); 
• The RFMF has been the custodian of this change and will remain so in ensuring the national objectives and aim of uniting one Fiji is achieved.(48).

RFMF and the 'coup culture'

The draft constitution sees the military as the cause of past coups and seeks to limit its powers in order to break the "coup culture." 

The military, on the other hand, sees itself as heroes, a band of brothers,  "abandoned" during the 2000 Speight Coup by the politicians, the chiefs and the Methodist Church as it strove to restore order;. And again in July 2000 when rebel soldiers with the support of local chiefs seized the Sukanaivalu Barracks in Labasa and held it for 30 days; in the rebel seizure of Korovou township; the disruption of power supplies and the closure of roads. And yet again in November when rebel elements of the Counter-Revolution Warfare Unit attempted to take over Queen Elizabeth Barracks and assassinate Bainimarama.

The Commission sees the military as the cause of coups when, so far as 1987 and 2000 were concerned, the military  is better seen  as the instrument of others. The military believes it suppressed the 2000 coup and acted in Fiji's best interests in launching the 2006 Coup.

The military sees the coups of 1987 and 2000 to have been caused by selfish chiefs and civilians aided by the military, and in the 2000 coup, by a rebel faction within the military.  It sees itself as the only reliable force capable of bringing about the changes that have occurred  since 2006 and capable of thwarting future coups.

The draft constitution has a number of measures with the same intent but most  exclude or are  aimed at controlling the military.  The military will support some but I doubt it will accept any of the recommendations on its future role, organization, chain of command and the early downsizing of its forces.

Constituent Assembly of what?

This leaves some very big questions about the Constituent Assembly. Will it meet as intended next week? Will its originally intended membership be changed to include more government and military representatives? Will the draft have been modified in any way, or will government seek its immediate modification before the Assembly gets down to business? Will the two-thirds majority to amend the draft remain? Whatever happens, I cannot see the present government and the military agreeing to be shunted to the sidelines.

Realism and reality

When Yash Ghai was questioned about his pending appointment as chair of the Constitution Commission, he was asked how he could possibly deal with an "illegal government." He replied, illegal or not, the government was a "reality." So, today as then —is the RFMF.

The Commission's recommendations would have stood a greater chance of acceptance had they heeded, or at least acknowledged, the military submission (late though it was) and sought the progressive introduction of its recommendations; not their adoption in one fell swoop. 

It could have given the military a more prominent place in its various recommended commissions, perhaps to be progressively phased out after the 2014 elections. 

It could also have considered new roles for the military with, for example, ongoing practical participation  in provincial government; army engineers boosting rural development efforts, disaster relief, and partnerships with secondary and tertiary education institutions in preparing youth for citizenship

Instead, its recommendations leave the military as mere spectators in the processes and events which have been largely of its making for the past six years. The Commission's good intentions, and particularly its timing, could well prove  unrealistic, and, depending on how matters are handled, they could well undermine the work of the Constituent Assembly.