Draft Constitutions: 1.Where Are The Drafters Coming From?

By Crosbie Walsh

In this article, the first of two on the Government's draft constitution,  I comment on the processes and  fundamentally different positions adopted in the Government and Ghai drafts. In the concluding article, I use the recently published analysis of the the Government draft by the Citizen's Constitutional Forum to address key issues, compare the two drafts,  and offer some opinions of my own.

The processes

The process originally proposed by Government involved a widely-representative Constituent Assembly to debate and submit its recommendations to the President for adoption. The Ghai draft, however, was unacceptable to Government and the Assembly was abandoned. Government has now draft has now released its own draft and a new process for public participation.
 
The public has until April 5th to let Government know what they think of its provisions by text messaging, phone calls, and through public meetings and radio talkback programmes. This consultancy falls far short of the now abandoned Constituent Assembly and is far too rushed. More seriously, there will be limited opportunities for dialogue or talanoa and little opportunity to consider the merits and possible demerits of the drafts many clauses. The process is likely to be limited to one directional question and answer sessions.

Ideally (and it is still not too late), Government should reverse its decision on the Constituent Assembly, even if the Assembly were to meet for as short a time as only seven working days. There are three very good reasons for this:

• First, the number of inconsistencies and omissions in the Government draft show that its preparation was rushed. These shortcomings should be corrected before the document becomes almost irreversible.
• Secondly, the draft would be improved by further discussion on those clauses about which its critics are most concerned. In some cases only fine turning is needed; in others, changes could be negotiated  that address the contentious issues without jeopardising Government concerns.
• Thirdly —and far more importantly— discussion and endorsement by the Constituent Assembly would give the Government draft a legitimacy that will not be obtained from the limited public inputs between now and April 5th.

Unfortunately, the situation is not ideal and as much as Government would be well advised to heed the advice of its well-intended critics, its record to date indicates that it is unlikely to do so. In these circumstances, everyone and every group that would like to see some changes to the draft should use every opportunity to promote their suggestions. Writing for this or that blog will have no effect. Tell the Prime Minister. The confrontational posturing of the so-called United Front for a Democratic Fiji made up of the old political parties will also prove fruitless, even though most of their concerns need addressing. They are discredited by their constant opposition to all Government initiatives, and obvious self-interest.  Anyone wishing Government to heed their concerns will need to demonstrate goodwill and diplomacy.

Government has said the process is rushed because it is running out of time to meet announced deadlines.

But these deadlines should not preclude later inputs.

 Some discussion, for example,  could continue beyond the 5th with some members of the public being invited to sit in on the "final" drafting, and the Constitution announced on 12th April could be the Provisional Constitution, finalised in its major provisions but still open to some change for another two-three months, well over a year before the 2014 Election. I suggest this more fluid period of adoption because it permits more citizen participation and because once the draft becomes law it is going to be extremely difficult to change. It is important to get it right the first time.

The Government Draft and its critics

The reaction to the Government draft  by Government's long-standing critics was predictable. Most wanted a return to the 1997 Constitution or the adoption of the Yash Ghai draft.

A more responsible and useful response came from the Citizen's Constitutional Forum which had previously endorsed the Ghai draft, and this week published its analysis of the Government draft, comparing its provisions with those of the Ghai draft and the 1997 Constitution. Its 23-page report acknowledged similarities with these earlier documents and for the most part does not disagree with much in the Government draft. It did, however, point to a number of what it considered to be serious shortcomings in the Government draft, and suggested specific changes.

I spent two days last week digesting and comparing the 199 pages in the Ghai draft  with the 91 pages in the Government draft but I did not publish anything on my conclusions because I wanted first to see what others thought and, frankly, I was totally drained by the concentration required. The CCF analysis, therefore, has arrived at a most opportune time. I shall use it, in the second article, as the framework against which to add my own observations and comments.

Very different premises

But first, to establish my position, I must state that the two documents proceed from very different premises.

The Ghai Commission saw its primary task was to forge some sort of consensus across widely different positions. Thus, it agreed to the continuation of a "large" 71-seat parliament and allowed some role for the Great Council of Chiefs. It "went along" with the Government's "non-renouncable principles", conceded the need for immunity, and allowed some Government participation in the lead up to the 2014 elections.  But its primary thrust , in provision after provision, was to oversee the authority of parliament and the power of the Prime Minister, and limit the influence of the RFMF. It did this through a raft of "independent" commissions, few appointed on the recommendation of the PM, and the appointment of a National People's Assembly to annually oversee government's actions. In essence, non-elected civilians, nominated and chosen to represent the "people", were set above the primacy of the elected parliament.

In contrast, the Government draft asserts the primary of Parliament, seeks to enforce a strong government elected by the people at four-yearly elections, with a strong PM, and the continuing influence of the military, but under the PM as its Commander-in-Chief. Many of the commissions and human rights recommended by Ghai remain, but with the sorts of limitations that we have seen for the past six years.

Ghai recommended people-participation; Government had doubts about who these "people" might be, and whether the result would be strong enough to resist the forces that would return Fiji to the status quo ante. The former position springs from the liberal traditions in a Western democracy and is supported by most of Fiji's Western-educated leaders; the latter position springs from a suspicion that this half-digested tradition contributed to the power structures of old Fiji that paid lip-service to democracy and resulted in destructive contests for power between sections of an urban middle-class elite, racism as a political tool, corruption, instability, and coups, and Fiji's energies directed away from improving the lot of ordinary people.