The Political Parties, the Military and the Draft Constitution

By Crosbie Walsh

This three part article looks at the submissions made to the Constitution Commission by the significant* "old" political parties (the SDL, FLP and NFP) and the Military, and at what has become known as Yash Ghai's draft constitution. Part I will consider the submissions separately; Part II will compare the submissions, and Part III will compare how each party stood in relation to the draft constitution, and how the Yash Ghai's draft might compare with the likely Government draft that will be presented to the President and the Constituent Assembly. Links to the submissions are to be found at the end of the first article. * The General Voters' United People's Party headed by Mick Beddoes is considered no longer "significant."

Part I. The Submissions

The SDL (Soqosoqo Duavata ni Lewenivanua) Submission

The SDL wants a harmonious and united Fiji with the rights of all ethnic communities respected. It claims this can only be achieved if ethnic Fijians no longer feel insecure and powerless, and claims these feelings have been exacerbated by the Bainimarama government that has created land banks, abolished the Great Council of Chiefs, hijacked the name "Fijian", installed its own representatives on the Native Land Trust Board, passed the Surfing Decree that attacks qoliqoli rights, and now proposes a secular state. The result, it states, has been a weakening of the voice of ethnic Fijians and indigenous rights—and a feeling of increased insecurity and powerlessness.

The party sees the 2006 Coup as a means of meeting the personal ambitions of Bainimarama, and nothing more. It sees no need for a new constitution and wants the 1997 Constitution used as the base for the new Constitution.

Specific recommendations included the following:

1. The Republic of the Fiji Islands to be declared a "sovereign democratic Christian state." It argues that a secure Christianity will protect the freedom of other religions.

2. Fiji to be called the Fiji Islands; its citizens Fiji Islanders, and only ethnic Fijians to be called Fijians.

3. Fijian to be the national language (lingua franca); to be compulsory in all schools; and to be a requirement for entry into the public service. It argues that with only 600,000 Fijians worldwide, their heritage is at stake, and this provision would also help national unity

4. The continuation of the "compact" that gives ethnic Fijians rights to a separate administration and affirmative action. And amendments to all "group rights "defined in the 1997 Constitution to require 75% of parliamentary votes, and the votes of 75% of Fijian (appointed by the GCC) and Rotuman Senators. The party thought this would ensure "effective protection."

5. No provision for dual citizenship.

6. The words "sexual orientation" to be removed from the Bill of Rights because the "Biblical template for marriage is a divine ordinance of God between man and woman like Adam and Eve in the Garden of Eden."

7. Several social justice provisions to address inequalities.

8. An Act to enshrine the Boselevu Vakaturaga (Great Council of Chiefs) in the Constitution.

9. Lease money from the land of extinct mataqali (the Schedule A and B land once administered by the State that Qarase returned to native land) be used to fund the GCC

10. ALTA (the 1976 Agricultural and Landlord Tenants Act) to be abolished and all Native land to be administered under the Native Land Trust Act.

11. Traditional, customary laws to be recognized and applied, subject to agreement, where necessary, of the higher authorities of Parliament and the Courts.

12. Parliament (House of Representatives) to comprise 71 seats, made up of 25 seats allocated by ethnicity (Fijians 14, Indo-Fijians 9, Others 2) and 46 seats on the basis of one man:one vote, with 25 of these seats from closed part lists, similar to MMP (Mixed Member Proportional representation in NZ).

13. Work towards 30% women's representation in Parliament, and make provisions for youth parliamentary participation.

14. Senate to be unchanged from the 1997 Constitution, i.e, 32 members, 14 appointed by the President on the recommendation of the GCC, 9 by the PM and 8 by the Leader of the Opposition.

15. President to be appointed by both Houses from nominees proposed by the the GCC, and the Indo-Fijian and Other communities.

16. President, Reserve Powers. None. Council of Advisers for President. President can be removed by GCC.

17. No Multi-Party Cabinet. Winner takes all.

18. The Military. No role in government or emergencies unless invited by Parliament. Section 112 (1) of the 1997 Constitution amended.

19. Amnesty. Limited. All existing military leaders to be dishonourably discharged and stripped of their medals. Not allowed in political life or to take up any political office for life, Similar provisions for "abettors of the Regime."

20. Transitional Arrangements. Appointment of a caretaker government from April 2013.

21. Conclusions. Need to strengthen the indigenous position regarding institutions, especially the GCC, language, and the Christian tradition.

The FLP (Fiji Labour Party) Submission

The FLP saw no need for a new constitution but thought some provisions should be changed. It was highly critical of the Bainimarama government's performance and wanted a caretaker government to be installed prior to the 2014 Elections.

Specific recommendations included the following:

1. The question of dual citizenship be left to the Government elected in the 2014 Elections.

2. The Bill of Rights in the 1997 Constitution be retained.

3. A special Constitution Commission be established, the Fiji Human Rights Commission (with 5 members including at least 2 women) be retained, and a Code of Conduct for government personnel be introduced.

4. On social justice, the issues noted were: the minimum wage, decent, affordable housing, retirement at 60 years, or 55 years if wished, and pensions for persons over 65 years with no other income. .

5. Parliament (House of Representatives) . To retain 71 members but with (a) 26 "reserve" seats (12 for ethnic Fijians, 10 for Indo-Fijians, 1 for Rotumans and 3 for General voters) and (b) 45 "open" seats contested in 15 3- member, relatively heterogeneous electorates of approximately equal size. [Previously there were 46 communal and 45 open seats. The FLP proposal halves ethnic Fijian and Indo-Fijian reserve /communal seats and leaves Rotuman(1) and Other/General voters (3) the same.] The alternative vote to be retained. This allows preferential votes to be transferred, and the successful candidate had to to win at least 50% of the voters cast.  If fewer than 15 women are elected, more women may be appointed but without the right to vote.The residential qualification for voting to be two years; youths aged 18 years to be eligible to vote, and the parliamentary term be reduced from 5 to 4 years.

6. Senate, with referral powers, to have 35 members, of which 30 are nominated by the PM and Leader of the Opposition, and the other 5 (one of whom a Rotuman) nominated by the other minority groups.

7. The President and Vice-President to be appointed by an Electoral College from pairs of nominees proposed by both Houses of Parliament. The President would have no reserve powers.

8. Multi-Ethnic Cabinet. The PM to appoint an 18-member multi-ethnic cabinet from both Houses of Parliament. [The 1997 Constitution required a multi-party cabinet.]

9. The Attorney -General must have qualifications equal to a High Court judge.

10. The Police Force. To establish a Police Integrity Commission and make efforts to achieve a reasonable ethnic balance.

11. The Military. To be under ministerial control with the Commander appointed by the President on the advice of the PM; numbers and expenses to be cut, and a reasonable ethnic balance achieved within 3-5 years.

12. The Great Council of Chiefs to be retained as an advisory body to government, and kept apolitical.

13. The Bainimarama Government Decrees to be repealed where they infringe human rights.

14. The Judiciary. Charges of inference by the Bainimarama government to be investigated.

15. The Media. A Media Tribunal be established to consider complaints.

16. Agricultural leases. ALTA to be retained. The minimum lease period to be 50 years. rents to be fixed at 10% of UCV with Government contributing a further 4%. UCV to be reassessed after 7 years, not 5 as is the present case.

17. Immunity. No.

The NFP (National Federation Party) Submission

Fiji's oldest political party the NFP has lost support in recent elections, to the advantage of the FLP, because it was seen to have comprised Indo-Fijian rights by co-operating with the Rabuka Government that passed the 1997 Constitution. It was once also more multi-ethnic and on several occasions had one or more ethnic Fijian MPs in Parliament. The party claims to have always worked for national unity and attributes supposed shortcomings in the 1997 Constitution to the unwillingness of the SDL and FLP to work together. It blames the coup culture for the increase of racist legislation since the 1987, the increased Fijianisation of the public service, and the emigration of some 130,000 Indo-Fijians, many of them highly qualified. In the 2006 Election it won 15% of the Indo-Fijian vote.

The NFP wants to retain the 1997 Constitution and has concerns about the current constitution process that it thinks has "predetermined outcomes." It argues that all but three (one man one vote, no ethnic voting, votes for 18 year olds) of the Bainimarama government's "non-negotiables" are in the 1997 Constitution, and welcomes the three omissions. It has argued for one man one vote since its formation in the 1960s, and is the only party to have done so.

Main issues:

1. Land. Schedule A and B land should be returned to the State for leasing. This land belonging to extinct mataqali had been returned to native ownership by the Qarase government.

2. Racial discrimination  should be made a criminal offence.

3. The civil service should be overhauled.

4. The Military should be downsized and work towards ethnic parity

Specific other recommendations included the following:

1. Secular State. Retain the 1997 Constitution provision.

2. Language and Culture. Fijian, Hindi and English to be compulsory for all Class 1-8 students.

3. Parliament (House of representatives). The voting system should be proportional representation with closed party lists with 71 MPs elected from large multi-member constituencies. Party lists to reflect national ethnic and gender situation. The "power sharing" provision in the 1997 Constitution to be retained, and all parties with ten or more seats should be included in Cabinet.

4. Senate to be retained as a "House of Review" with 25 members appointed by the leaders of the political parties in Parliament proportionate to their number of seats.

5. President and Vice-President to be appointed by an Electoral College from both Houses, and to serve no more than two parliamentary terms.

6. Land. Government should act as a "buffer" between owners and tenants by obtaining a "Master lease" over all available agricultural land, re-leased to tenants for 99 years and reassessed after 50 years. Rentals to be "fair" to both parties at 6% of Unimproved Capital Value with an additional premium added  by Government to make up 10%.

7. Civil service. Entry and promotions to be by academic merit and a better ethnic balance achieved. Military officers currently in the civil service should resign from the service.

8. Affirmative Action only on the basis of need, not race.

9.The Military. "We re-iterate our recommendations that we made to the Reeves Commission in August1995: (i) There should be an independent Armed Forces Service Commission for recruitment and promotions within the Armed Forces, (ii) It shall be the responsibility of the Armed Service Commission to ensure the recruitment of non-indigenous Fijians with a view towards balanced racial representation." The military should be downsized, be subject to civilian control, and law and order be left to the police.

10. Judiciary. Retain the Judicial and Legal Services Commission and the provisions of 1997 Constitution to ensure independence.

11. Bill of Rights. Retain those in the 1997 Constitution.

12. Constituent Assembly. Members to be appointed by the political parties, with no representation of the military.

13.Transition Arrangements. Appoint a caretaker government immediately after the new constitution is promulgated. The caretaker government to immediately appoint new members of the Judicial Services Commission, the Constitutional Officers Commission, the Public Service Commission and the Electoral Commission.

14. Immunity. Should only be considered following "acknowledgement of wrong doing; apology and genuine remorse; and restitution and reparation." If the Constituent Assembly grants immunity, the next parliament should address the issue and set up strict provisions for future treasonous acts.

The RFMF (Republic of Fiji Military Forces) Submission

The RFMF submission opened by welcoming the constitution process which it thought captured the people's opinions, "It is not our intention to undermine any individual, group or institution to the contrary. We are here to ensure that through this process we are able to formulate a constitution that is representative of all the people of Fiji."

It stated it intended to have no role in parliament but would continue to "monitor the ongoing situation" to ensure that what has been adopted since 2006 and in the People's Charter will be fully implemented. Referring to the PM's "vision", it stated that "no other institutions are capable of bringing about this change."

The RFMF protested it had been abandoned by the chiefs, church and political parties in the 2000 Coup and the two mutinies that followed, and that it was its "responsibility ... to ensure at all times the security, defence and well being of Fiji and its people."

The simple choice was either to support the RFMF or its opponents and the continuation of corruption, racial division and hatred, the undermining of the underprivileged and social injustice.

Specific other recommendations included the following:

1. The RFMF must be retained as the "last bastion for law and order (that) exists to deal with both Internal Security situations and external threats."

2. The President. A largely "ceremonial" President to be elected by secret vote in Parliament from two nominations each by the the PM and Leader of the Opposition, for one term of 5 years. The President would be the Commander-in-Chief of the RFMF, call and dissolve Parliament, and on the advice of the PM have executive powers to appoint most senior officials, including the Commander of the RFMF, the PM and Cabinet, Chief Justice and other judges and magistrates, the Ombudsman, and the Commissioners and chairpersons of all government commissions. He or she would also have the power to grants pardons and clemency, and declare States of Emergency, also on the advice of the PM.

3. Vice-President. There would be no Vice-President. In the absence of the President the Chief Justice would assume this role.

4. Parliament. A 46-seat parliament with MPS elected by proportional representation from four electorates based on the country's four administrative divisions, elected for a five-year term. Cabinet to comprise no more than 12 to share the 24 ministries, with powers to co-opt the positions of Attorney-General, Minister of Finance and the Speaker from outside Parliament, similar to previous practice. All MPs to disclose their personal assets and comply with a Code of Conduct. They must have no criminal convictions for ten years, and no convictions pending. The salaries of MPs to be increased to attract high calibre candidates.

5. Senate and the Great Council of Chiefs, now deemed unnecessary due to other provisions, to be abolished.

6. Total agreement with all eleven Non-negotiable principles:

(i) common and equal citizen; (ii) a secular state; (iii) the removal of systematic 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.

7. Agreement with the Bill of Rights but subject to limitations in the interests of national or public security, morality, health, and personal dignity and freedom of the rights of others, acts likely to cause ill will between races and communities, undermine the independence or authority of the courts. All such limitations to be based on the principles of natural justice.

The Rights to include: a. Right to life, b. Right to personal liberty, c. Freedom from unreasonable searches and seizure, d. Rights of charged persons, e. Rights to access to courts or tribunals f. Freedom of Expression, g. Freedom of Assembly, h. Freedom of Association, i. Freedom of Movement, j. Rights to privacy, k. Protection against compulsory acquisition of property, l. Enforcement, m. Freedom of labour relations, n. Right of Religion and Belief, o. Right of Equality, p. Right to Education.

8. NGOs. Due to concerns about foreign funding and acts against Government, all NGO's to submit annual audited accounts to Government

9. Immunity to be granted to those involved in the 2006 Coup and all events until the formation of a new government, except where there have been violations of domestic or criminal law.

In the second part of this article, we shall explore commonalities, major differences in the submissions of the three parties, and major differences between these submissions and the submission of the RFMF.

Links to the Submissions, the Yash Ghai Draft Constitution and Explanatory Report

SDL http://www.scribd.com/doc/125965678/SDL-Submission-With-Annexes-Final

FLP http://fijiconstitution.weebly.com/uploads/1/2/4/6/12466522/flp_submission_to_the_fiji_constitution_commission.pdf

NFP http://fijiconstitution.weebly.com/uploads/1/2/4/6/12466522/finaldraft_submission.pdf

RFMF http://www.scribd.com/doc/125965596/Military-Submission-to-CC-Hl2Constitutution Commission (Yash Ghai) Draft Constitution

http://www.scribd.com/doc/125966353/Draft-Constitution-of-Fiji-One-1112-1

Constitutution Commission Explanatory Report

http://www.scribd.com/doc/125966359/Explanatory-Report-DC-Good-Copy