Former Ghai Commissioner Says Why He Supports the 2013 Draft Constition

Dr Satendra Nandan (L) and Prof Yash Ghai

Member of the Ghai Commission now supports the 2013 Constitution.

‘The basic principles on which a pluralistic, democratic society can be structured in Fiji are clearly and carefully enunciated. They provide the necessary vision but for any functioning democracy you need a clear eyesight, too.’
––– Dr Satendra Nandan

By Dr Satendra Nandan

Fiji now has a new constitution—the fourth since independence in 1970. The final version was published on August 22, 2013. It becomes law on September 6, a day before Australia goes to poll.

The general elections based on the constitution are scheduled for not later than 30 September 2014, almost exactly a year after the Australian elections.

It’s a 98-page document—half the size of the Independent Constitution Commission’s draft presented to the President of the Republic of Fiji on December 21, 2012 by its chair Professor Yash Ghai.

Like the Ghai draft which resonated with many ideas of the 1970 and 1997 constitutions and the Peoples Charter of 2008, the new constitution is underpinned by many universal principles aimed at creating a democracy of human decency, equality of citizens and belonging to a nation with a common national identity.

Common identity
All Fiji citizens are now called Fijians for the first time in a Fiji constitution, irrespective of their origin, colour, creed, gender or religious beliefs.

Fiji has fewer than a million people, more than half of them will be eligible to vote, the voting age has been reduced to 18 years from 21. There’s no compulsory voting but the young have the potential to influence the outcome of an election.

The constitution provides for the development of a ‘genuine democracy’ in multi-ethnic Fiji— in the past so damagingly beset by communal constituencies, racial categorisation, colonial hierarchies , feudal patriarchy, discrimination and dispossession of many kinds, coupled with inventions of traditions and institutions to rule rather than to serve.

All that’s gone out the window into the waves of the Pacific floating like the debris from a pirate shipwreck.

Better place
Fiji will be a better and fairer society for all that. And this constitution provides several windows of opportunity for the future.

One person, one vote, one value becomes a reality in Fiji for the first time in its history. This alone makes democracy a masterpiece of human ingenuity.
This fundamental change can and will bring about sea-changes in the nation’s consciousness and conscience.

Fiji now allows dual and multiple citizenships and Fiji citizens living abroad can cast their votes in the next election. These are likely to be people who were forced to leave Fiji after the three brutal coups, two in 1987, one in 2000.

They never gave up their Fiji citizenship nor their affections for the country of their birth. The roots go deeper despite the many routes they chose under anguished circumstances of cheated hopes.

A common name and a national identity is the most challenging imperative of many post-colonial polities. Fiji has taken this immensely desirable and forward-looking step in its constitution.

Those who used race, religion, ethnicity, communalism and privileges will find it hard to survive in the new political arrangements delineated in this constitution.
In the last elected government Fiji had a Leader of the Opposition with one other member of his party and he himself had won his seat by a mere thousand votes. Such farcical situations now belong to the past.

There are no special reserved seats for anyone—if you wish to play the leadership game, your legitimacy will be derived from the will of the electorate. An “Indian “ vote is equal to the “chief’s”, if you believed in chiefs and Indians!

Daring innovation
The Parliament will have 50 Members of Parliament elected from a single national constituency – a daring electoral innovation for Fiji. The elected Parliament will be the supreme body for legislation and governance.

The President elected by the Parliament is also the Commander in Chief of the Fiji Military Forces.

The constitution provides a genuinely strong position for the Leader of the Opposition to be respected as the alternative Prime Minister of the nation.
Governments are formed and governments fall by the power of the ballot box. One hopes no more by guns—although no constitution can guarantee that—think of the many countries in Europe, Africa, Asia, America and Arabia on their journey towards democracy.

Land protection
In Fiji almost 90 per cent of the land is owned communally by the indigenous citizens, including islands by the Banabans and the Rotumans.

Their lands are fully protected in this constitution—the racist politicians , masquerading as nationalists, will not get much traction by arousing false fear in the minds of the communal landowners that their land-ownership is under threat. It’s never been except before the Deed of Cession in 1874.

This issue has been used in the three coups and the last Government created refugees within Fiji—mainly thousands of farmers and labourers evicted from their leased land which today lie fallow. Land has been used to create the psychology of fear as we do here about asylum-seekers.

This constitution jettisons all this overboard. And has defined the ownership of iTaukei (new name for indigenous inhabitants) land unequivocally and categorically on the first page of this historic document.

The basic principles on which a pluralistic, democratic society can be structured in Fiji are clearly and carefully enunciated. They provide the necessary vision but for any functioning democracy you need a clear eyesight, too.

And here the real challenges need thoughtful scrutiny and preparation for regaining the trust of people in public interest: how to give form, shape and substance to these ideals and ideas through the creation of lawful , responsive and responsible institutions. And these will be only as good as the individuals who run them from public funds and the laws governing their conduct in office.

FICAC, Fiji’s Independent Commission Against Corruption, has been an effective deterrent and doubtless will be strengthened with the vital role of a free media.

NGO growth
How can the institutions and individuals contribute to the growth of democratic structures as distinct from a false search for the politics of cultural identity that often limits human freedom?

This will require energy, imagination and empathy. Over the years Fiji has built a strong culture of NGOs with international support. They can continue to contribute critically, creatively and constructively with assistance from their energetic and articulate constituencies.

Fiji now has two major universities: the University of the South Pacific—a regional institution of global significance, almost 50 years old, and the Fiji National university, barely five years old.

These two institutions are producing many graduates and diplomats, retraining civil servants of high quality in almost every important field of endeavour required in a developing society.

The present government has invested generously in the education of its young people. This is bound to make a difference to the service the educated young can provide in their chosen professions.

Education has been the real revolution of Fiji and within a generation it can be the most educated society of the Pacific. The opportunities off the land are now more varied and the empowered youth see a life full of new possibilities.

Social justice has become part of the Fiji’s political lexicon and the constitution rightly gives emphasis to economic development, employment and initiatives in tourism, international services in business and economic enterprises, among others.

Learning languages
The teaching of three languages is another move in the right direction with English as the global language of communication, business, education and regional and international co-operation.

The fact that citizens of PNG and Fiji can travel to each other’s country without a visa is a telling lesson to other Pacific countries. Let’s hope others will follow suit in opening their borders rather than sending asylum- seekers to Nauru and buying fishy boats from Indonesian fish folks.

The myth of ‘the arc of instability’ should be abandoned just as the idea of a fig leaf of democracy for Fiji. Even Bainimarama’s most relentless opponents admit that he has changed the electoral contours of Fiji: in fact he has wrought a quiet revolution in Fiji’s political evolution towards a mature democracy.

Fair elections
Nevertheless for the political stability of the nation-state the most important issue will be the conduct of credible, free and fair elections in September 2014.

Fiji has exactly a year to prepare for it. How the present government goes about it will determine both the legitimacy of the future elected government and restore the faith of the people in the democratic process.

These are huge challenges but not beyond the imaginative grasp of the people, or the political will of the nation. The practical and fair processes by which the Fijian people can participate with vigour and commitment towards the coming elections will go a long way in determining Fiji’s radiant future despite the coups since independence in 1987.

The Bainimarama government’s greatest and most enduring achievement will be to make the voice and the vote of the people of Fiji integral to the vision enshrined in the new constitution.

In Fiji there will be serious scrutiny and debate of the more controversial provisions in the constitution. More tragically, however, there could be opposition to the more enlightened features embodied in the constitution so deeply meaningful to the new millennium goals for Fiji.

The constitution is fundamentally wholesome; the flaws are in certain provisions that can be manipulated by unscrupulous politicians and colonels.

2018 test
The real test of its validity and value may become clearer not so much in 2014 elections but in the elections of 2018.

The perseverance and determination against overwhelming odds shown so far must now work towards accommodation and reconciliation that is inclusive, internationally respected and nationally accepted by the people in Fiji.

Commodore Frank Bainimarama seems to have achieved his constitutional vision by the subtle force of arms; now he’ll have to win the hearts and minds of the people through arguments, patience and persuasion. Changing the rules of the game is one thing: to win the game itself he will require more resilient strategies and meaningful coalitions.
Fiji can contribute most creatively to the political future of the South Pacific, not only because of its suffering but more significantly its unique and plural social structures and daily human interaction and living together.

Where else will you find just across the an international airport on Constitution Avenue a church, a temple and a mosque co-existing in a region increasingly afflicted by a terrified consciousness.

Nadi International Airport has this extraordinary heritage. And Fiji can truly become another word for hope despite its wounded history.

The preamble to the new constitution is worth quoting in full:
We, the people of FIJI,

• Recognising the indigenous people or the iTaukei, their ownership of iTaukei lands, their unique culture, customs, traditions and language;
• Recognising the indigenous people or the Rotuman from the island of Rotuma, their ownership of Rotuman lands, their unique culture, customs, traditions and language;
• Recognising the descendants of indentured labourers from British India and the Pacific Islands, their unique culture, customs, traditions, and language; and
• Recognising the descendants of the immigrants and settlers to Fiji, their culture, customs traditions and language,
• Declare that we are all Fijians united by common and equal citizenry;
• Recognise the constitution as the supreme law of our country that provides the framework for the conduct of government and all Fijians;
• Commit ourselves to the recognition and protection of human rights, and respect for human dignity;
• Declare our commitment to justice, national sovereignty and security, social and economic wellbeing, and safeguarding our environment;

HEREBY ESTABLISH THIS CONSTITUTION FOR THE REPUBLIC OF FIJI.

In secular Fiji, this could be its prayer.

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