10 Between Coups Constitution Making in

Jill Cottrell and Yash Ghai

n 1874, the principal chiefs of Fiji signed tution coup in 2006; and its abrogation after a deed of cession of their islands to the a similar court ruling in 2009.4 British crown in the hope of securing, as Had this paper been written in April 1999 Ithey put it, “civilization and Christianity.” In or even 2000, we would undoubtedly have 1970, the country became independent un- said that the constitution-making process der a newly prepared constitution. In 1997, was a great success, and that the 1997 con- Fiji adopted a new constitution by a process stitution, though not flawless, was a consid- that is the focus of this paper. In 1999, the erable achievement. Inevitably, we are com- © Copyrightconstitution came into force by and there the was Endowmentpelled to address the question of whether of the a general election in which the two parties events of 1999, 2000, and after indicate that thethat hadUnited been the protagonists States of constitu- Institutethe constitution or theof process Peace that made it tional change were decisively rejected. A year was gravely flawed, even a failure. To under- later, there was a curious civil coup, during stand the process, however, it is necessary to which the government was held captive in have some understanding of the social and the building by a group of indig- economic structures of Fiji society and of enous led by a failed and dishonest the constitution-making enterprises that had businessman;1 this movement was super- preceded that of the early to mid-1990s. seded by a military takeover, which resulted Since Fiji’s inception as a political entity, first in its suspension and then in its abroga- its politics and political and administrative tion, with the military ruling by decree.2 The structures have been obsessed with race and seesaw history of the constitution continued ethnicity, thanks to colonial policies. Every with its restoration following a court ruling;3 other issue—human rights, trade unionism, its suspension following, oddly, a proconsti- land, economy, education, even religion—

275 276 Jill Cottrell and Yash Ghai

has been subordinated to it. Constitutional Table 10.1 Population by Ethnicity debates have been fundamentally about eth- Year Fijians1 Indians Others Total nic allocations of power; they have not been 1966 202,176 240,960 33,591 476,727 about national unity or identity, social justice, 1976 259,932 292,896 35,240 588,068 the appropriate scope of the public sphere, 1986 329,305 348,708 37,366 715,375 Fiji’s place in the world, or the myriad other 1996 394,999 336,579 41,077 772,655 issues that define people’s daily experience. 1. Until 1997, Fiji was the official name of the country, but Fijians were the original inhabitants, whose dominant As happens with such an obsession with language is Fijian. In this paper, the word Fijian is used to race, there is a great distortion of reality. The refer to an indigenous Fijian, or the language; the Indian complexity of Fijian society, with its ethnic population is referred to as variously Indian or Indo-Fijian; divisions and class structures, is obscured Fiji is used adjectively, as in the Fiji constitution. so that a regional chiefly class assumes the leadership of the entire community. Such obfuscation, prevalent in other communi- instituted a system of indirect rule—appli- ties as well, is the handmaiden of injustice. cable to indigenous Fijians—involving the The 1997 constitution tried to move to a new entrenchment and sometimes distortion of paradigm, motivated by newer thinking on Fiji’s chief system and a reinforcement verg- ethnic differences and celebrating diversity ing on creation of a system of communal as a source of enrichment and social justice land holding. through national unity and integration. Its By the time Fiji became independent in own checkered career shows the difficulties 1970, indenture was a thing of the past, but of its project. But there is little doubt that in large numbers of Indo-Fijians were leasing the course of time, its vision will win greater land from Fijians for cane farming, while acceptance, even if posthumously. A constitu- others were running businesses and enter- tion charting a new path does not necessarily ing the professions. Most indigenous Fijians achieve its objectives immediately, especially were still engaged in subsistence farming, on if it operates in a context in which power is land that was, even then, largely communally fluid and dispersed, with the constitution reg- owned. Table 10.1 shows the breakdown of istering no particular class or ethnic victory. population over the years. ©What Copyright then matters is the persuasive by power the WhileEndowment other countries have ethnic comof- of its vision and goals. The Reeves Report positions not dissimilar to that in Fiji, some, on the constitution, a watershed in Fiji, pro- such as Trinidad and Guyana, differ in that videdthe that Unitedvision, however incompletely States and the Institute two major communities—ignoring of Peace the contradictorily the 1997 constitution con- small indigenous Indian population in the veyed it into law and practice. latter, which is constantly its fate—are non- indigenous. With a majority of Malays but Background large ethnic minorities, Malaysia is most sim- ilar to Fiji. But in Fiji, by the mid-twentieth Society and Economy century, the largest community was nonin- In the decade following Fiji’s cession to the digenous Indian, though it lacked an overall British crown in 1874, the foundations of a majority. The other large community was in- sugar industry were laid, and in 1879, the first digenous Fijian. This meant that the debate of 60,000 Indian indentured laborers arrived could be conducted in terms of those who to work on the sugar plantations to help re- belonged versus those who did not, and the spond to Colonial Office insistence that Fiji Fijians—or at least politicians and other ad- pay its own way.5 The colonial government vocates on their behalf—could couch their Framing the State in Times of Transition 277

arguments in terms of the rights of indig- ary, communal basis, and not by individuals. enous people, even though their situation It is linked to lineage, or mataqali. Revenues was very different from that of peoples like from the land are allocated on a hierarchi- the Maori, Australian Aborigines, Canadian cal basis: The chief of the mataqali receives First Nations, or the Sami, who had been the largest share and receipts diminish down swamped, marginalized, and driven from through the structure. Most members of their lands by incomers. Despite the incom- the community thus receive only very small ers’ numerical dominance, indigenous Fijians benefits from the land, and the land-holding were not driven off their land or marginalized, system reinforces the chiefs’ dominance. For but they did have a minority complex that some commentators, the resentment that is continues today, even though they are now felt toward the cane farmers would be more a majority. For their part, Indians also have a appropriately directed at the clan and land minority mindset that comes from their ex- nexus. clusion from control of land, the sense that As with immigrant communities in many they have not been accepted as part of the contexts, there is a perception—and not en- nation, and their vulnerability to racist abuse tirely only a perception—that the Indians and physical attacks. are better off than the indigenous people. The two communities have remained very Until recently, few Fijians went into busi- separate in many ways. Though not unknown, ness. Meanwhile, some Indian businessmen intermarriage is uncommon. The groups’ life- are very wealthy, and even small shopkeep- styles are different. In rural areas, most Indi- ers can seem wealthy to the poor Fijians ans live in individual farmhouses, whereas Fi- who come to towns to try their luck, perhaps jians live in villages. Most Indians are Hindu ­because they are landless. Far higher propor- (a small proportion are Muslim and an even tions of Indians than Fijians tend to be in smaller proportion Christian), whereas Fi- business. But studies on poverty in Fiji have jians are overwhelmingly Christian. To a also shown that the very poorest are actually considerable extent, the two communities Indian.6 This, however, is lost on those who are educated in different schools and do not are convinced that the benefits of the ethnic learn each other’s languages in any systematic structure all favor the Indo-Fijian commu- © Copyrightfashion. by the Endowmentnity. Living standards in Fiji are by ofno means The ethnic situation in Fiji has been made as grindingly poor as in some developing more acute because almost every aspect of countries, but a study in 1997 estimated that thelife is Unitedaffected by it or reflects States it: religion, lan- Instituteoverall, the share ofof poor Peace households was guage, and lifestyle. Particularly problematic around 25 percent.7 is land. As mentioned above, large numbers There is no denying that the two commu- of Indians have been small-scale farmers, nities could have done more to diminish the mainly of cane, who lease their farms for tensions between them. Nor was colonial pol- thirty years at a time from Fijians. There is a icy directed towards any such result. “Divide small amount of freehold land (about 8 per- and rule” applied in Fiji as elsewhere. There cent of the total) held mostly by Europeans was no encouragement in colonial times for and part-Europeans and some government Indians and Fijians to integrate or learn each land. However, it is not only the Fijian- other’s languages. Since independence, far Indian relationship that is rooted in land, too little has been done to redress the situ- but also relationships within the indigenous ation. Neither community has had a leader community. Most of the indigenously held of stature who has been prepared to reach land (over 80 percent) is owned on a custom- out in a sustained way to the other, though 278 Jill Cottrell and Yash Ghai

crucial transitions—especially independence A general election was held shortly after and the 1990s constitution-making process Fiji became independent on the basis of a discussed in this paper—have been greatly constitution that allocated parliamentary facilitated by relationships built up between seats ethnically, though some seats were cho- leaders of the communities, such as that be- sen through a common roll of the voters of tween and Siddiq Koya all communities. 82.6 percent of Fijians voted at independence and and Jai for the mainly Fijian (AP) Ram Reddy in 1995–97.8 and 74.2 percent of the Indo-Fijians for the There are other communities: Europe- essentially Indo-Fijian National Federation ans, other Pacific Islanders, Chinese, and Party (NFP). The AP had a number of prom- those of mixed race, some of whom are part- inent Indo-Fijian leaders, which explains the Europeans but others of whom are mixed 24 percent support that party obtained from ­Fijian–Indo-Fijian or other combinations. the Indo-Fijian community. There was also a The wholly or partly Europeans have tended senate with twenty-two members, of whom to be associated with, and to have given sup- eight were nominated by the Great Council 10 port to, the indigenous Fijian population, in of Chiefs (GCC), seven by the prime min- political contexts at least. In official termi- ister, six by the leader of the opposition, and nology, all are sometimes grouped under the one by the Council of . rather exclusionary label of “others,” or in Overall, the 1970 constitution fashioned voting contexts, as “general voters.” There is a fairly orthodox Westminster model: a par- even a General Voters Party. liamentary system with the queen as head of state, represented by a governor-general who was to act on the advice of the govern- Political Developments ment, except in certain circumstances, such Fiji at Independence and the 1970 Constitution as choosing a head of government. There was a bill of rights on a familiar Nigerian The army at independence was and remains model.11 However, Fiji’s ethnic factor marked overwhelmingly Fijian, a legacy partly of In- this constitution out and affected a number dian lack of enthusiasm for fighting for the of aspects of it. The ethnic voting setup was ©British Copyright empire, partly of their reluctance by tothe particularly Endowment unusual, though ethnic represen of- accept that terms of service for Europeans did tation was not uncommon in colonies with notthe apply toUnited all, and partly of theStates authorities’ settler Institute populations or that of were Peace otherwise disinclination to accept Indo-Fijian soldiers ethnically diverse. The constitution also en- 9 in World War II. The civil service, on the trenched a number of pieces of legislation other hand, was more Indo-Fijian than Fi- protecting the interests of indigenous Fiji- jian, though not as greatly so as myth would ans, in the sense that enhanced majorities, have it. Political parties were forming with a including the consent of a certain number strong ethnic focus. Seats in the Legislative of GCC Senate nominees, were required to Council were racially allocated, as they had change the laws.12 been ever since the council came into exis- Fiji’s process of negotiating and adopt- tence. In 1904, only Europeans could elect ing the constitution was also one that had their representatives. In 1937, there were fif- become standard in colonies moving first to teen members—five Europeans, five Fijians, self-government and then to full indepen- and five Indians. By the 1960s, the number dence. In 1965, Britain called a conference in of members increased to eighteen, six from , to which all members of the Legis- each race. lative Assembly were invited. The important Framing the State in Times of Transition 279

decisions to be made at this conference were fessor Harry Street was appointed to look at not discussed widely in Fiji before the meet- the ; it recommended a par- ing. The next stage comprised secret discus- tial move away from ethnic representation.17 sions between the two major parties in 1969. Although the original understanding—at Only four active members from each party least in some quarters, though Prime Min- were involved; the papers and minutes were ister Ratu Mara denied it18—had been that kept confidential. There is little evidence that the commission’s proposals would be bind- the participants consulted even with mem- ing on the parties, once delivered, they fell bers of their own parties. The Fijian Council like the proverbial lead balloon. The AP had of Chiefs and the back-benchers of both par- no interest in becoming less communal, and ties complained about this; the secrecy was although the NFP accused the government also criticized by Lord Shepherd, the British of breach of faith, it has been suggested that minister invited to review progress, with a the NFP cynically thought that keeping the view to the third stage of the final constitu- existing system would be in the interest of tional conference in London. Lord Shepherd the Indo-Fijians as their numbers declined met with the participants and subsequently, to perhaps less than the indigenous Fijians. at his suggestion, a meeting of the Legisla- As comments, tive Assembly was convened to report on the The Indo-Fijian leaders had succumbed to the progress of the talks. A report was issued be- political considerations of the moment, with fore Lord Shepherd left Fiji. only myopic visions of the long-term interests When the final conference took place in of their own people and the nation at large. For April 1970, there was considerable confu- this, they and their people would pay a terrible price a decade later.19 sion as to what had been agreed upon in the preceding stages. There had been little public Although the royal commission sat in Fiji, Lal discussion of the issues before the delegates suggests that it elicited little interest there. left for London,13 where, again, Britain’s in- tercession was required before all outstanding issues could be disposed of.14 Later Pacific The Ethnicization of Politics, the 1987 Coups, constitutions were generally drawn up in a far and the Falvey Committee © Copyrightmore participatory fashion; evenby before the Fiji’s EndowmentFijian politics after independence wasof distin - constitution, there were South Pacific prec- guished by intensification of ethnicization. edents of somewhat open and participatory Government policies designed to advance the United States15 Institute of Peace processes in Western and Nauru. the indigenous community and an element After the constitution was agreed, there was of virulent racism that entered politics in the no referendum, not even so much as an elec- mid-1970s led the Indo-Fijian community tion.16 One factor was the fear of violence, to come together in an electoral sense, with fear inspired by recent riots in Mauritius, a the stunning result that in 1977, the NFP country that was deemed to bear strong re- was the largest single party, with precisely semblance to Fiji. half the seats in the House. The governor- The one issue that the various negotia- general (GG) did the right thing and offered tions did not succeed in resolving, it seemed, the prime ministership to the NFP leader. was that of the electoral system. The system As the party dithered for a few days, the GG outlined earlier was only for the first postin- decided to invite the AP leader to form a dependence election. In 1975, in accordance government. Perhaps if he had done other- with the independence settlement, a royal wise, Fiji would have had its first coup ten commission under the chairmanship of Pro- years earlier than it did. 280 Jill Cottrell and Yash Ghai

In the mid-, a party emerged based Fijians—the emerging Taukei Movement, less on ethnicity and more on class interests: taukei being the indigenous Fijians—pre- the (FLP). It was headed pared a petition to the GG demanding that by a Fijian doctor and retired civil servant, the constitution be changed to provide that Timothy Bavadra, and its secretary was an the indigenous people “must always control Indo-Fijian. As the new party realized that the government to safeguard their special it could simply split the anti-AP vote, it en- status and rights.”22 As soon as a degree of tered into a coalition agreement with the public order was restored to and a gov- NFP to fight the 1987 election under Ba- ernment headed by Rabuka was installed, the vadra’s leadership.20 Within the Fijian com- GG set up a constitution review committee munity, the new alignment reflected the in which the FLP-NFP coalition reluctantly distinction between the traditionalists, who agreed to take part, though they were heav- were happy to uphold communal traditions ily outnumbered by AP and GCC members. and the role of chiefs in politics, and those This was the first time that the people of Fiji who saw the communal lifestyle as holding were seriously asked what they wanted in a back the development of the Fijian commu- constitutional structure. nity and thought that chieftaincy should be The committee was chaired by Sir John kept separate from modern politics. It also Falvey, a former attorney general close to reflected the gap between the Fijians of the indigenous Fijians. The other members of western division—more modernizing, less the committee were four nominees each of clan and chief bound, with a sense of having the GG, GCC, the FLP-NFP coalition, been marginalized by the dominant east— and the AP.23 Its terms of reference were and the rest. In response to this coalition, the originally AP entered into its own coalition agreement to review the with the view with the , a category consist- to proposing to the Governor-General amend- ing of all citizens other than indigenous Fiji- ments which will guarantee indigenous Fijian ans and Indo-Fijians, dominated by Europe- political interests and in so doing bear in mind ans and part-Europeans. the best interests of other people in Fiji. The FLP-NFP coalition won the April After the coalition members objected, the ©1987 Copyright elections, though voting was stillby largely the words Endowment after ‘interests’ were changed to: of along ethnic lines.21 Bavadra was invited to with full regard to the interests of other people form a government, which consisted of seven 24 in Fiji. Fijianthe and Unitedseven Indo-Fijian cabinetStates minis- Institute of Peace ters, the latter holding portfolios that had The phrase “in Fiji” rather than “of Fiji” is very often gone to Indo-Fijians in Alliance telling. The committee held hearings in Fiji’s governments. One month later, Lieuten- four major towns and received 800 written ant Colonel Sitiveni Rabuka led a military and 160 oral submissions. But the atmo- takeover. sphere in which these consultations took Fijian chauvinists, shaken traditionalists, place was hardly conducive to any concilia- and disappointed aspirants to government tory recommendations. The committee did office or other lucrative benefits of anAP produce a report:25 By a majority (indigenous victory had refused to accept the decision Fijians and one general voter) it proposed a of the voters—and along with the victors in single legislative chamber comprising eight the election, the constitution itself was the nominees of the GCC, twenty-eight Fijian, target of attack. Soon after the election and twenty-two Indo-Fijian, and eight general before the coup, a meeting of two thousand voter members (plus one Rotuman and up Framing the State in Times of Transition 281

to four nominees of the prime minister). All included Rabuka, Apisai Tora (a Fijian na- voting was to be communal, held and voted tionalist, even chauvinist), for by members of the relevant community. (later to be on the Reeves Commission), and The prime minister was to be Fijian. The the moderate Josefata Kamikamica. The In- nominees of the FLP/NFP coalition (two dians were “marginal and discredited” within Fijian and two Indo-Fijians) opposed any their own community, Brij Lal observes.27 change to the 1970 constitution, with which This draft was translated into Fijian and Fiji the two Indo-Fijian nominees of the GG Hindi. largely agreed). The process was leading nowhere. There had already been violence after the coup, and The Manueli Committee and the 1990 Constitution political and economic stability were clearly The government then established the Con- under threat. The GG instituted a series of stitution Inquiry and Advisory Committee, meetings between the political parties, result- chaired not by a foreign expert but by a re- ing in the Deuba Accord, which was to be an- tired colonel, , from the small nounced on September 25. An interim gov- island community of Rotuma. The commit- ernment with members drawn equally from tee included six Fijians, five Indo-Fijians, the two main parties was to be set up and a and four general voters.28 Its terms of ref- new constitution review committee to be es- erence related strictly to public reaction to tablished under a foreign expert to propose a the draft, and to making proposals based on constitution acceptable to all, taking into ac- that reaction. Ratu Mara observed: “Citi- count the aspirations of not only the indig- zens throughout the country were given the enous community, but of the others as well. opportunity of making their views known, Rabuka’s response was rapid: On Sep- and eminent legal experts were called on for tember 25, he carried out the second 1987 advice.”29 Yash Ghai had a different view: coup. Unable to get the coalition to accept The Interim Government claims that [the Con- the GCC model constitution, which had a stitution] is a reflection of the will of the people, built-in Fijian majority and allowed only Fi- when no real opportunity was given to them to jians to hold various offices, including that participate in its making and they were denied © Copyrightof prime minister, Rabuka by declared the Fiji a Endowmentthe right to vote on it. The various committeesof republic and set up a Taukei Movement– which have made recommendations on its pro- visions were handpicked by the interim regime dominated government, headed by himself. the United States Instituteand enjoyed neither popularof supportPeace nor public The GG resigned a month later. By the end credibility. The views they presented were not of the year, Rabuka had left the position of those of the majority of Fiji’s citizens. Even the prime minister, though he remained in the most ardent supporters of the regime have not 30 cabinet, and the former GG had become understood the terms of the Constitution. president. The latter then invited former Brij Lal’s evaluation of the process was a prime minister Ratu Mara to resume that little less harsh:31 post—he had served from independence until the 1987 election—thus returning the coun- The Committee conducted 32 hearings at 14 try to civilian if not constitutional rule. centres in the first half of 1989 and received oral and written submissions reflecting many The cabinet then put forward a draft con- perspectives. stitution26 that owed a good deal to the GCC proposals of 1987. It was prepared by a com- The committee itself reported that at first, it mittee comprising nine Fijians, two Indo- received few submissions because the Inter- Fijians, and one general elector. The Fijians nal Security Decree remained in full force.32 282 Jill Cottrell and Yash Ghai

Delay in distributing the Fijian and Hindi tuman—sounds much too South African. . . . versions of the draft constitution reduced the But while we know the difference, you can be number of submissions from non-English sure that the South African label will be at- speakers, and it seems that Fijians tended to tached to such proposals.”34 On both counts, rely on their provincial representatives. The his efforts failed.35 result was that the committee received verbal The Manueli report and the 1990 consti- submissions from 174 groups and 175 indi- tution based on it were both racially based viduals, in addition to written submissions and racially biased documents. The report from 104 individuals and 105 groups. While has been described as enshrining “the ex- 82 Fijians made individual submissions, only ploitative ideology of indigenous Fijian par- 39 Indo-Fijians did so, along with 22 Fijian amountcy.”36 The committee rejected, how- groups and 141 Indian groups. ever, the idea that Fiji should be declared a Among the submissions the committee Christian state, as well as the proposal that received was one from the military that can the commander of the military forces be a hardly have failed to have a profound effect, in member of the lower House of Parliament, a view of the two still recent coups. Theirs was view with which the military had concurred. a vision of a country in which Fijians enjoyed Under the committee’s approach, all voting “absolute political dominance,” where the would be on an ethnic basis. Thirty-seven press was controlled, judges appointed who of the seventy seats in the lower house would would “accept the reality of the situation,” go to Fijians and twenty-seven to Indo- workers unable to form trade unions, and Fijians. An appointed upper house would the church cut off from what were viewed as be over two-thirds Fijian. The constitution subversive foreign influences, while the na- mandated affirmative action in favor of -Fi tion was subject to discipline and deprived jians, elevated the status of Fijian customary of constitutional rule for 15 years. The mili- law, barred access to the ordinary courts in tary also called for a state religion. And in cases involving Fijian customary land law, order to ensure that the military could carry and provided for human rights provisions to out its “monitoring role,” it should be “given be superseded by a two-thirds majority vote executive authority.”33 of both houses in a wide range of circum- ©One Copyright of Ratu Mara’s experts wasby the latethe stances. Endowment Only an indigenous Fijian could of be Albert Blaustein, who was engaged as a prime minister, and the president was to be draftsman of the 1990 constitution and appointed by the GCC. foundthe himself United in a delicate position, States trying to InstituteBut Fijian elite views of were Peace dominated persuade the government to moderate some not only by the question of the Indo-Fijian of the worst elements of the draft while be- bogeyman but also an outdated perception ing employed to deliver a document with a of Fijian society as rural, land-linked, chief- racist foundation. On the proposal to require dominated, and cohesive. The 1990 constitu- that the prime minister must be Fijian, he tion was biased toward rural Fijians: The 33 commented: “With an indigenous Fijian percent of Fijians who lived in urban areas majority in the House, this guarantee may had only 13.5 percent of the parliamentary be considered superfluous and will only lead seats, and the document gave far more prom- to further criticism.” Arguing for the aban- inence to the GCC than that organization donment of communal rolls, he wrote, “Rolls had had the past. Events since 1987 have in- based on race—especially a special roll for volved the exploitation of tradition, and of voters who are neither Fijian, Indian, or Ro- religion, and reinforcement of militarism, by Framing the State in Times of Transition 283

the Fijian elite to the detriment of the ordi- which influences led to the proposals taking nary Fijian.37 the form they did? Third, how could the pro- Elections were held under the 1990 con- posals be enacted by a parliament formed stitution in 1992. After a good deal of soul under the 1990 constitution? searching, the coalition parties participated in them, though differences over whether to do so actually broke the coalition. The elec- The Reform Process tion led to Rabuka becoming prime minister Why More Reform at All? as an elected politician rather than as a coup The 1990 constitution itself provided that maker. By this time Bavadra had died. We it should be reviewed within seven years cannot know how the might (the army’s view on this did not prevail). In have been different if this statesman had not the second reading debate in parliament on died then. He was a key Fijian politician to- the bill for the 1997 constitution, Colonel tally committed to the vision of a nonracial Manueli said: and just Fiji, and with his passing, there was no one of his stature who could carry Fijians At the time I believed that the 1990 Consti- tution was the best we could achieve given with him on this platform. the circumstances prevailing then. Those of us It seemed that the Fijians had won every- who were involved were very much aware of its thing they wanted. Writing not long after shortcomings. This was the reason why we made it mandatory for the Review of the Constitution the constitution came into force, an Indo- 39 Fijian wrote that, for his community, the at the end of seven years. constitution The prime minister, Ratu Mara, in a report does not lay to rest the ghost of the girmit [in- to the president in May 1992, observed: denture] experience, but raises the spectre of a The document you finally promulgated in 1990 new one, a life of subservience, lived as a vu- was not perfect. . . . It is the centre of controversy lagi “foreigner” on the sufferance of the Fijian during the current election campaign. . . . I am people. While the original girmit lasted only confident that negotiations between the two five years, this one, they feel, is intended asa 38 communities will be possible if goodwill and permanent arrangement. trust can be established among the political leaders.40 © CopyrightYet five years after these by words the were pub- Endowment of lished, Fiji had a new name and a new consti- The Labour Party, which won thirteen seats tution that was firmly within the tradition of in the 1992 election, supported the largest themodern United constitutions: It Statesrecognized human Instituteparty: the newly founded of Soqosoqo Peace ni Vaka- rights, and its electoral system, while not vulewa ni Taukei (SVT),41 set up by the GCC purged totally of racial elements, was designed specifically to champion Fijian interests. One to counteract ethnic tensions. The commis- condition of support was that the govern- sion that prepared the constitution included ment should pursue constitutional reform the same Indo-Fijian who wrote the above as a priority. Rabuka agreed, though with no despondent words. Most remarkably—but evident enthusiasm,42 and once in power, he perhaps fatally—eighteen months further on, dragged his feet on the issue. the country had an Indo-Fijian prime minis- However, Rabuka raised an issue with ter. How was all this possible? First, how was important constitutional implications when the idea of a process even capable of produc- he suggested in late 1992 that there should ing such a constitution acceptable to the ap- be discussion on the possibility of forming parent victors of the events of 1987? Second, a government of national unity (GNU). But 284 Jill Cottrell and Yash Ghai

the GNU idea was designed as sugar for the community, as demonstrated by the rise of bitter pill of the 1990 constitution, something provincialism, disintegration of the AP, and to make the existing setup palatable to the the rise of several new Fijian parties. The Indian community and more acceptable over- fragmentation meant that any Fijian fac- seas. The government’s expectation seemed to tion seeking to form a government would be that the fundamentals of the constitution need the parliamentary support of at least would not change. Even Mara described it as some Indo-Fijian members, prompting the “a realistic framework for taking the country realization among Fijians that a majority back to constitutional government.”43 of Fijian seats in the House of Representa- However, by mid-1993 the Fijian politi- tives was insufficient for Fijian domination. cal elite was beginning to talk openly about Moreover, some elements of the fear felt by a constitutional review, and in June, Rabuka Fijians over the risk of Indian dominance met with the leaders of the opposition par- were moderated when it was realized that ties—the FLP and the NFP—after which the population balance was shifting, largely he expanded the membership of an existing as a result of Indian migration and their cabinet committee on constitutional review lower birth rate (see Table 10.1). to include them. In August 1993, the NFP produced a paper exploring issues of reform Structure of the Process that foreshadowed many of the points that were to be at issue when the formal review Once the Fijian political leadership decided process got under way. The following month, that there would be a commission to review the parliament agreed to set up a review the constitution, it was some time before commission. agreement was reached on the commission’s A number of factors worked together to structure, size, and membership. At least four lead to the government being prepared to basic models were floated (see Table 10.2). embark on a serious reform exercise. First, The commission chair ultimately- ap leaders realized that Fiji’s economy suffered pointed was Sir Paul Reeves, a Maori, former when a large sector of the domestic popu- archbishop and former governor-general of ©lation Copyright was alienated and the outside by world the New Endowment Zealand. The other members of of the viewed Fiji with suspicion; private investment commission were a Fijian politician, Tomasi as a percentage of GDP dropped markedly Vakatora (nominated by the government), afterthe 1987. UnitedSecond, there was activeStates pressure and Institute an Indo-Fijian academic of historian, Peace Brij from the outside to reform (touched on be- Lal (nominated by the opposition). Coun- low). Third, Rabuka’s government was unable sel to the commission were a to sustain its credibility. There were some woman who was familiar with other Pacific scandals involving corruption and incompe- island states and a Fiji general vote, a part- tence, and the 1993 budget was defeated as European. The commission’s secretary was a some dissident Fijian members of parliament Rotuman . The small size of the body voted with the opposition, though Rabuka made it impossible to have a wide range was returned to power in the consequent of interests directly represented within the election. To be fair to the SVT, discussion commission. It is unsurprising that there was about constitutional reform began before the no woman on the commission itself, and the budget defeat. presence of one foreign woman as counsel The 1990 constitution was leading to was no answer to this shortcoming, however the political fragmentation of the Fijian important that function was.44 Framing the State in Times of Transition 285

Table 10.2 Proposed Models for Fijian Constitutional Commission Proposed Actual by Cabinet Proposed by SVT Proposed by NFP commission Size 8 11 6–7 3

Makeup (apart 3 Fijian Deputy chair Indo-Fijian 1–2 foreign 1 Fijian from chair) 2 Indo-Fijian 2 nominees of SVT constitutional 1 Indo-Fijian 1 Rotuman 1 general voter or distinguished 1 general voter 1 NFP political scientists with 1 Fijian Association relevant knowledge 1 All National Congress 1 eminent economist 1 Rotuman 3 local, chosen for 1 state services knowledge of law and other relevant fields

Chair Foreigner Fijian Not specified Foreigner (preferably from (New Malaysia) Zealand)

It took nearly two years from the time erence as adopted bear the hallmarks of the when the government began to think about ultimate compromise: such a commission until the Reeves Com- mission came into existence. The nego- The Commission shall review the Constitution tiations over the identity of the chair alone, promoting racial harmony and national unity and the economic and social advancement of all which happened within the cabinet com- communities and bearing in mind internation- mittee, took about six months. The oppo-­ ally recognised principles and standards of indi- sition was determined to reject the SVT vidual and group rights. Towards these ends, the government scheme to have a Fijian chair Commission shall: the commission—especially the proposal to (1) Take into account that the Constitution designate as chair the chief justice at the shall guarantee full protection and promo- © Copyrighttime.45 The opposition was byequally adamantthe Endowmenttion of the rights, interests and concerns of of that the chair should be a non-Fiji person. the indigenous Fijian and Rotuman people. Sir Paul Reeves was chosen because of his (2) Scrutinise and consider the extent to which the United States Institutethe Constitution of Fiji meetsPeace the present ethnic and religious background and because and future constitutional needs of the peo- 46 he was perceived to be fair-minded. ple of Fiji, having full regard to the rights, The commission’s terms of reference, cru- interests and concerns of all ethnic groups cial to the nature of the enterprise, were the of people in Fiji. subject of extremely tough negotiations be- (3) Facilitate the widest possible debate throughout Fiji on the terms of the Consti- tween the government and opposition in the tution of Fiji and to enquire into and ascer- cabinet constitution committee. The govern- tain the variety of views and opinions that ment wanted the starting point of review to may exist in Fiji as to how the provisions of be the 1990 constitution, and Fijian inter- the Fiji Constitution can be improved upon ests to have pride of place. The opposition in the context of Fiji’s needs as a multi- wanted the entire constitutional structure to ethnic and multi-cultural society. (4) Report fully on all the above matters and, in be up for grabs, with the terms of reference particular, to recommend constitutional ar- reflecting fairness to all communities and the rangements likely to achieve the objectives of necessity of national unity. The terms of ref- the Constitutional Review as set out above. 286 Jill Cottrell and Yash Ghai

They set the scene not for a tinkering with built between ourselves and the confidence and the 1990 constitution but for a total over- trust placed on us by our Chairman. haul, though the emphasis on “rights, inter- The commission ultimately produced a ests and concerns of the indigenous Fijian document that essentially contained draft- and Rotuman people” went further than ing instructions for an entirely new constitu- the opposition would have wanted in giving tion. Especially in the rather complex draft- specific protection to sectional interests. In ing tradition of the common law, experience the end, the opposition accepted the com- suggests that a very important degree of mo- promise to get the process started; it also mentum toward change can be achieved by believed that an independent and just com- presenting not just the ideas but the actual mission would recommend provisions fair to formulations required to achieve the recom- its community. mended result. The commission did not do 47 48 Brij Lal and Tomasi Vakatora have this, except in some specific instances. But written about the modus operandi of the the proposals it made were framed in very commission, which, due to its size, depended precise terms, which was, to a substantial very much on the personalities of its mem- degree, the work of the counsel, especially bers. Initial auguries were not encouraging. Alison Quentin-Baxter, as no member of Lal was very clearly identified as an NFP the commission was a lawyer.53 That said, it is sympathizer and had written in fairly strong clear that Vakatora and Lal were thoroughly terms about developments in Fiji up to the involved in every aspect of the work, and that early 1990s. Vakatora was a fairly hardline the commission and not its technical staff Fijian politician; the first edition of his auto- made the decisions. Vakatora says that he biography indicated few positive feelings to- read the final report at least seven times.54 ward the Indian community.49 His appoint- ment initially filled opposition leaders with despair. However, being on the commission Timing and Sequencing wrought a remarkable change in both men. Table 10.3 shows the timeline from the ap- 50 They ended as friends and the report they pointment of the Reeves Commission until ©produced Copyright was unanimous. It seems by that thethe the passingEndowment of the Amendment Act. of experience of traveling around the country The process involved neither a referen- listening to the views of ordinary citizens dum nor an election before the constitution broughtthe them United together. They realizedStates the re- was Institute adopted. The task ofof preparing Peace a draft ality of life for the ordinary person, the fact was given entirely to the commission, and that ethnic rivalries did not dominate their enactment was a matter for parliament, as lives, and that there was a genuine willing- regularly constituted. ness to work together for the common bene- fit. The very burden of responsibility exercises its own influence as well. The chair took the The Commission Phase view that the main responsibility lay with the The commission was originally given just two Fiji citizens. Lal quotes him as saying, over one year to complete its work, but this “If you two agree among yourselves, I won’t was extended by three months. Even so, pro- stand in your way.”51 As Vakatora wrote,52 ducing the nearly eight-hundred-page report Brij and I were able to iron our differences, was a remarkable achievement in the time sometimes after long and tense talks. . . . This allotted. This is not just a pleasantry.- Tim was possible because of the mutual trust we had ing can be crucial to constitutional reform. Framing the State in Times of Transition 287

Table 10.3 Timing of Reform Process in Fiji Date/period Specific events Ongoing processes Public hearings travel Foreign ideas Developing papers Background Public debate Report writing Parliament March 1995 March 15 commission appointed. April May June Beginning: met for first time. Prepared mission statement. June 16 commission met joint parliamentary committee for briefing. Program of work prepared July August

September

October Last submission October 10 (SVT). November Private meetings with high officers of state, judges, etc.

December January 1996 © CopyrightFebruary Visited ; by met electoral the commission Endowment and others. of

March theApril UnitedOfficial of AustralianStates electoral commission Institute visited Fiji. of Peace May

June July August September Reports submitted to president and parliament and then published. Commission winds up. October November December January– July 1997 July 3 bill passed. 288 Jill Cottrell and Yash Ghai

A constitution that is produced under ex- The report was presented to President cessive time pressures—whether internally Mara and then published at the beginning linked to electoral or conflict resolution fac- of September 1996. It was submitted not tors, or deadlines imposed from outside, as to official popular debate but to parliament, in East Timor and Afghanistan—may not where the main work was done by a select only be defective in a technical sense but also committee. lack the commitment of the public, or “sense of ownership,” to use the currently fashion- From Report to Law able phrase. Developing that commitment requires time to educate and consult the The report was published only in English— people. On the other hand, a long, drawn- not surprising for such a voluminous docu- out process runs the risk, on one hand, of ment, but unfortunate. There was no officially losing the interest of the public, and on the sponsored public debate on the report. Only other, of missing the bus in that the factors the Citizens’ Constitutional Forum (see be- that made the political context receptive to low) tried to inform the public about the im- new possibilities may no longer exist. plications of the report. The report itself, and The commission’s own account of its the stages that led to its ultimate enactment as a constitution, disappeared from pub- work shows that in terms of timing, it gave 55 lic view to emerge only as a constitutional high priority to public hearings. It did not amendment bill. simply present a draft to the people and The primary responsibility for hammer- ask them what they thought of it. This was ing out the final decisions lay with an all- perhaps less necessary, as the 1990 constitu- party Joint Parliamentary Select Committee tion could have been used as the basis for ( JPSC), which worked in secrecy without discussion, though the commission appears assistance from the parties’ legal advisers. not to have provided or facilitated any pub- 56 The parliamentary phase lasted from the lic education about its contents. Appointed completion of the report to the enactment in May 1995, the commission spent most of of the amendment bill, and itself comprised July, August, and September holding public two elements: the work of the JPSC and that ©and occasionallyCopyright private hearings aroundby thethe of the Endowment full parliament. The main work of the country. These hearings were followed by committee took about six months and pro- visitsthe to Malaysia, United Mauritius, SouthStates , duced Institute an agreement dated of April Peace 14, 1997, and the United States, despite government on the most important issues, including the reluctance to sanction the trip, which was electoral system.57 financed by outside donations. Parallel to The committee’s final report is a poor these information-gathering exercises, the guide to its discussions and mode of reach- commission had asked a number of people ing consensus, which they did, but the con- to prepare research papers and institutions sensus was colored by their experience and and individuals to supply specific informa- predilections as politicians. The JPSC pro- tion. These research papers were used dur- ceedings were very much a matter of nego- ing deliberations, solely for the purposes of tiation. More important, the negotiations the commission and not to inform public took place between Sitiveni Rabuka and Jai debate; they were only published after the Ram Reddy, the leaders of the government report itself. and opposition, or the SVT and the NFP, Framing the State in Times of Transition 289

respectively. The coup leader of 1987 and Not all members of parliament were happy the Indian leader seemed to have achieved about the way the decision making had been a quite remarkable working relationship. If done. V.S. Tunidau objected: the JPSC could not work out an agreement Using the Joint Parliamentary Select Commit- on a particular issue, they would turn it over tee, then lobbied through the Great Council to the party leaders, a practice reminiscent of of Chiefs, and formulating the passage of the the South African process by which Man- JSPC Report straight into a Bill form is to me a very clever ploy denying us the fundamental dela and de Klerk broke deadlocks. process of parliamentary democracy.59 The negotiations in the committee in- volved a good deal of compromise. The Fi- K.R. Bulewa commented that jian members did not really want to change the negotiations process from my Party’s per- the 1990 constitution; the Indo-Fijians spective left a lot of room for improvement. wanted radical change. Each in the end ac- Communications between caucus and the Party’s cepted things that were basically unpalatable representatives on the Joint Parliamentary Se- lect Committee were haphazard at the best of to them. Politicians were more reluctant to times and sometimes non-existent. Negotiating move away as emphatically from the older strategies were non-existent and were regularly Fiji constitutional assumptions than was the overridden by decisions reached at the top. . . . Reeves Commission. They stuck to - com The fact that our party was able to reach agree- munal seats for the most part, hoping that ment on issues under discussion is a tribute to the strong leadership of our leader, the Prime an alternative-vote electoral system, which Minister, the fair mindedness of the Opposi- probably most did not understand, would tion and the statesmanship-like qualities of my do the trick. They also chose to retain a sen- ­colleagues. 60 ate, the membership of which had become The bill, technically an amendment bill for a form of patronage for the leaders of the the 1990 constitution, was introduced by the major parties. This having been done, the prime minister on June 23.61 It produced a leaders committed their parties to support new document: the Constitution of the Fiji the resulting agreed bill, which then went to Islands, the new name intended to solve the the draftsmen, who put their peculiar stamp problem of nomenclature (see note 1 in Ta- © Copyrighton it. Apparently, in possession by of the the South Endowmentble 10.1). In the debate in the House, of there African constitution, they managed to sneak was a great deal of rhetoric about tolerance, thein an Unitedidea or two of their Statesown. It seems that Institutethe greatest acrimony of being Peace reserved for the drafters included sexual orientation as a exchanges between the FLP and the NFP. prohibited ground for discrimination; cer- Many Fijians spoke against aspects of the bill, tainly it is not in the Reeves Report. most notably arguing for Fiji to be a Chris- The GCC’s support of the bill was a very tian state, or generally regretting the loss of important element in the negotiation stage. Fijian dominance in the 1990 constitution. Jai Ram Reddy was invited to address the There were very few amendments to the GCC, the first time such a thing had ever bill; most of them were proposed by the prime happened; he responded with a much- minister and emanated from the JPSC, which praised speech, which he began in Fijian.58 was still sitting as the debate in the full house During the parliamentary debates, repeated went on. Among the amendments at this tribute was paid to the GCC and its role in stage were the introduction of compulsory ensuring acceptance of the constitution. voting (section 56 in the final constitution) 290 Jill Cottrell and Yash Ghai

and the requirement that the House have at and submit. Lal wrote of a submission by the least five sectoral committees (section 74[3]). Arya Samaj “which will be repeated—worse, Both amendments were agreed to without read word for word—countless times in the debate or division. The major proposal from days and weeks ahead.”64 But by no means the other side came from the Labour Party: were all of this type. Chaudhry wanted an extra Indian commu- The speed with which the commission nal seat, which was rejected by a vote of fifty- embarked on tours around the country and nine to five. overseas was only possible because it made Every member of parliament, save for two no attempt to undertake any form of civic absentees, voted for the constitution. Appar- education. Fiji’s literacy level is relatively high ently, Rabuka had told his ministers that if and the previous few years had been very po- they did not support it, they would lose their litical, so there was probably a high degree of portfolios. awareness of the broad concept of a consti- tution. However, the population at large was Public Participation almost certainly uninformed about the de- tails of the constitutions that had prevailed The Commission’s Consultations in the country, and even more certainly unin- The Reeves Commission had no structure formed about the options available to them. outside its members and supporting staff, Indeed, the events of the previous six to eight and no local organization.62 It simply an- years would very likely have led the ordinary nounced that on a certain day, it would sit in person to think about constitutional issues a certain place—a court room, a civic build- merely in terms of the system of government ing, a school—to receive views. The commis- and electoral systems—in other words, of sion visited far more places than any other the question of how the constitution could previous commission, though interestingly, prevent (for Fijians) or not obstruct (for this did not generate a significantly larger ­Indo-Fijians) the coming to power of an- number of submissions than the Manueli other Indian-dominated government. Committee had in 1989. How far it is either possible or desirable A quick count of individual submissions to go in the area of civic education is debat- ©(relying Copyright on names)63 indicates the by following the able. EndowmentWhile a little learning may indeed ofbe a breakdown: 114 Fijians, 88 Indo-Fijians—of dangerous thing, there is evidently room for whomthe 10 United seem to be probably States Muslim— people Institute at large to be given ofsome basicPeace infor- and 21 others. This is itself interesting, for in mation about what a constitution might do some other contexts, the Indian community before they are approached for their views. is more likely to express its views than is the And there is rather more room for specific Fijian community, which one might expect interest groups to be educated in the devices in view of the higher average level of edu- and institutions that could improve their cation among the former, though the break- own situation; women and people with dis- down of submissions to the Manueli Com- abilities are only two of the obvious groups mittee was similar. Among the organizations that could benefit from such information. that made submissions, local churches clearly But in Fiji, the commission made no attempt predominated. Many of the views presented and had no mandate to carry out any educa- were clearly orchestrated. Like an Amnesty tion of this sort. International campaign, political parties and That said, the considerable publicity- at other groups made standard forms of pre- tached to the commission’s work, especially sentation available for their members to sign the public hearings, was an education tool. Framing the State in Times of Transition 291

Describing the newspaper, radio, and tele- litical parties and religious groups attended, vision coverage, Lal notes that “the words, returning to their own organizations and con- the gestures, the emotions of the presenters texts affected in some way by the event. The and the audience [were] dissected in minute atmosphere of these events remained almost detail.”65 uniformly positive and without acrimony. The organization had a commendable - re cord of printing the proceedings of its meet- Civil Society ings, and thus, the meetings received wider Civil society began a dialogue on constitu- publicity. The organization also produced its tional reform early in the 1990s. In Decem- own submission to the Reeves Commission; ber 1993, a consultation on reform led to the many of the points in the submission were establishment of the Citizens’ Constitutional similar to those expressed in the FLP-NFP Forum (CCF), which was to become the submission, but they were simpler and more principal non-politically aligned group dis- direct.66 Finally, the organization remained cussing the issue. To a considerable extent, very multiracial, which was itself a valuable the CCF was the brainchild of Yash Ghai, contribution. Without the CCF, the issue of working closely with Claire Slatter and Sa- constitutional reform might have remained tendra Prasad of the University of the South much less visible than it was. That the prime Pacific (USP), academics active in politics. minister, Rabuka, having shunned all CCF While in Fiji in 1992–93 to advise the coali- activities during the early stages of the pro- tion parties in the context of the impending cess, asked to be permitted to launch its civic issue of a review of the constitution, Ghai education materials on the new constitution, realized that there was really no forum for which were deemed to be much superior to public debate and education on the matter. the government’s efforts, was a measure of He therefore met with a number of academ- CCF’s growing impact. ics and religious, gender, and trade-union From 1993 until the constitution was organizations to propose that they consider ­adopted, the CCF held a series of consul- setting up a civil-society group for just this tations that brought together a very wide purpose. The suggestions having been- re spectrum of people from within and out- © Copyrightceived with enthusiasm, Ghai by obtained the fi- Endowmentside Fiji to discuss constitutional of issues. nancial assistance from International Alert, These involved a mixture of information pa- thethe organizationUnited founded States by human rights Institutepers—on conditions ofin and Peace possibilities for activist Martin Ennals. International Alert Fiji itself and on experience elsewhere in the funded the initial consultations; later, Con- world—as well as proposals for specific insti- ciliation Resources, a breakaway organiza- tutions in the constitution, which were pub- tion of International Alert, provided finan- lished frequently in Fijian and Hindi. It also cial assistance and some help in the form of helped to draft legislation to implement the international linkages. constitution, particularly a freedom of infor- The organization began in a very small mation bill. The consultations were designed way. At a meeting in (western Fiji) in to perform a number of functions, not only 1995—one of the first held outside the capital, to inform and make specific suggestions, but Suva—very few people came who were not in to build bridges between communities and some way associated with CCF already, and lay the groundwork for a consensual ap- the meetings never grew to be large public proach to constitution and nation building. affairs. But they attracted a remarkable cross What the CCF could do was limited. But it section of Fijian society. People from all po- managed to place, and keep, the idea of con- 292 Jill Cottrell and Yash Ghai

stitution making on the agenda of at least On the other hand, religious organiza- the press and the middle classes, and not just tions have sometimes led efforts to reconcile as a matter for propaganda. Today, the CCF the differences between communities and is the most effective and influential organi- worked toward a constitution that respects zation devoted to constitutionalism, national human rights and all communities. After unity, and racial amity.67 the 1987 coups, Interfaith Search and Fiji- The flavor of the contribution that the I-Care came into existence with the specific CCF made to the debate can be gathered object of healing rifts, and they have worked from the topics of one of the consultations with nonreligious organizations, especially held in 1994. The topics involved the -elec the CCF. Early in the 1990s, the Fiji Council toral system, Fijian interests, Indo-Fijian and of Churches initiated dialogues on constitu- minority concerns, rights and religious is- tional reform, and meetings of this sort were sues, land, power sharing, affirmative action, an important catalyst. and state and civil society. Speakers at that The Reeves Commission report shows that event included leaders of the Labour Party, of 632 submissions from groups and organi- SVT, , NFP, and one zations, roughly 341 came from specifically other Fijian party; a Fijian senator; a Fijian religious and mostly Christian groupings but high chief; an Indo-Fijian academic; a Fijian included 47 Hindu or Sikh congregations or academic; the director of research of the Fiji organizations. This may overestimate Chris- Council of Churches; and a speaker from In- tian input in the sense that in many villages, terfaith Search. Various foreign experts spoke the church would be the only forum for ag- as well: an academic from New Zealand, Ni- gregating views, and those views might well gel Roberts; Helmut Steinberger from the have little religious content. University of Heidelberg, who discussed Bel- gium and Bosnia; Jomo K. Sundaram, who International Input and the Role spoke on Malaysia; and Yash Ghai, who ad- of the International Community dressed power sharing. International factors were important in vari- ous ways. There might never have been a The Religious Input review in the 1990s at all if not for interna- ©Religion, Copyright and for the most part mainstreamby the tional Endowment influence. The World Bank put aof great religion, plays a large part in Fijian social deal of pressure on the constitution-making andthe political United life. Most Fijians Statesare Method- process, Institute with several of its ofreports Peace taking the ist, but whereas in the the position that unless there was a constitution Methodist Church has a reputation for a de- acceptable to all communities, the prospects gree of broad-mindedness, the Fiji Method- for economic growth would remain dim. ist Church has been very rigid and at times Individual governments, notably those of somewhat racist in its views. After the first the United Kingdom, , and New coup, the government passed a Sunday ob- Zealand, pressured Fiji to reform the 1990 servance law that imposed a Victorian no- constitution. These three states were not only tion on the community, including the pro- closely associated with Fiji historically but hibition of any public transport. This was also were among its largest aid donors, with partly directed at the Indian community. The extensive commercial and educational links. church has sometimes backed attitudes and The U.S. ambassador at the time seems to policies that have driven the wedges between have made constitutional reform his personal the communities deeper. agenda, hosting lunches to bring Rabuka and Framing the State in Times of Transition 293

Reddy together in an informal setting to be- It visited other countries and held dis- gin to develop a consensus. cussions with both academics and politi- Finally, there was the question of the Com- cians. It met Arend Lijp­hart, a theorist of monwealth. Indigenous Fijians were among consociationalism,70 and Donald Horowitz, the most loyal of the Queen’s subjects. Fiji’s author of Ethnic Groups in Conflict and a membership in the Commonwealth auto- leading expert on institutional approaches to matically lapsed when it became a republic, accommodating ethnicity. In South Africa, and the racist nature of the state at the time it met Albie Sachs, Cyril Ramaphosa, and led to restoration of membership—auto- Desmond Tutu. In Malaysia, it met Jomo K. matic when a country becomes a republic in Sundaram and Kirpal Singh; in the United normal circumstances—being denied. Many Kingdom, Vernon Bogdanor, David Butler, Fijians hoped that Fiji might again become and James Crawford; in the United States, a monarchy, part of the Queen’s dominions. Michael Reisman; and in Australia, Cheryl They viewed return to the Commonwealth as Saunders—to mention only the best known. associated with this—indeed, many probably Non-governmental organizations (NGOs), did not understand the distinction between 68 notably the CCF, invited foreign and local the two issues. John Wilson, a lawyer with academics, experts, and politicians to partici- experience of legal drafting in various Com- pate in consultations. Academics from the monwealth countries, was asked to peruse USP wrote papers and drafted submissions. the draft constitution to see if it would sat- Political parties used foreign and local isfy the Commonwealth’s conditions for re- input from outside the parties. The FLP in- entry, and he endorsed it. vited an Australian politician, Don Dunstan, The commission members, especially the to advise on its submission, though much of Fijian members, naturally brought their own the work on the actual document—which knowledge, expectations, and fears to bear on was a joint submission with the NFP—was the process, and almost certainly the input done by Yash Ghai. The SVT had the benefit of the lawyers associated with the commis- sion was considerable, but it is clear that the of the advice of a retired Malaysian judge. bulk of the particular ideas that found their Research papers for the commission itself © Copyrightway into the ultimate draft cameby from the out- Endowmentwere written by some of the people of men - side the commission. Those ideas came from tioned earlier, as well as by local academics theindividuals United and groups withinStates Fiji, political Instituteand people involved inof Fiji affairsPeace in a practi- parties, visits to other countries undertaken cal way. Authors of the papers were from the by the commission, and academics. Pacific, Australia, , Sri Lanka, Malay- sia, the United States, Mauritius, the United Kingdom, and New Zealand. One group of Experts and Academics: Local and Foreign papers dealt with specifically Fijian issues: Fiji is a country of only seven to eight hun- ethnicity, economy, religion, education, and dred thousand people, yet contributions to land. Another group dealt with constitu- the making of its constitution came from tional issues generally: preambles, electoral some of the leading constitutional experts systems, chiefs and kings and constitutions, in the world. They came from all direc- antidefection provisions, upper houses, ac- tions. The commission itself commissioned countability institutions, power sharing, di- research papers from academics and prac- rective principles of state policy, and national titioners of politics locally and overseas.69 and international human rights.71 Few con- 294 Jill Cottrell and Yash Ghai

stitutions have such respectable academic Australia and the United Kingdom, and the credentials. World Council of Churches. How did such extensive foreign-expert in- volvement come about? No doubt it helped that one of the commission members was Foreign Experience himself an academic. Seeking the views of Why were Malaysia, Mauritius, and South scholars would not necessarily come natu- Africa examined? South Africa is easy: Nel- rally to politicians, or even archbishops. In son Mandela was released from prison in addition, Fiji houses the main campus of the 1990, the interim South African constitution USP, an institution that at that time was very was enacted in 1993, and the final constitu- respectable in academic terms, with a num- tion was adopted in 1996. In South Africa, ber of academics in the social sciences who race was the dominant political issue—and were committed to Fiji. Suva is a small city, though blacks are by far the largest group, Fiji staff at the university are linked to the there is also a significant Indian minority. society, and it seemed perfectly natural for Perhaps South Africa also appealed to indig- religious and secular organizations to work enous Fijians because some of their myths of closely with academics. Personal and acci- origin suggest that Fijians came from Africa. dental factors also play their part. Notably, Most observers agreed that South Africa’s Yash Ghai could contribute directly to the experience (see the chapter in this volume) debate through his involvement with the offered a model of constitution making and CCF and by advising the FLP-NFP coali- racial rapprochement that was very worthy tion. He also contributed indirectly by in- of study and perhaps emulation. troducing the individuals from overseas who Mauritius is less well known. That coun- came to CCF consultations—and very much try has a very large Indian community (now more discreetly, by feeding suitable names for about 68 percent of the entire population) research papers to the Reeves Commission. and a smaller black one (now 27 percent). Other names were suggested by the United Another parallel is the importance of sugar, Nations. as cane cultivation is an important part of Fiji’s economy and its social structure is so © Copyright by thebound Endowment up with the crop, though the Mauof- Finance ritius sugar industry is more technically ad- Reviewing a constitution is not a cheap enter- vanced than that of Fiji. prise;the one elderly,United conservative, andStates European InstituteMalaysia is the most interesting of Peace example. resident of Fiji described the commission as Fijian politicians have long admired the Bu- a “million dollar farce.”72 The main costs of miputra policies of the Malaysian govern- the enterprise in Fiji were borne by the na- ment restricting admission quotas to local tional exchequer, though the United Nations universities for Chinese and Indians, favor- (Electoral Assistance Division of the Politi- ing treatment to indigenous inhabitants in cal Affairs Department) paid for five issue the realms of business, and so on. There was papers on electoral systems73 and facilitated very little recognition in Fiji of the govern- commission meetings in the United States. ment’s heavy-handed treatment of political government paid for foreign dissidents, or even of the way in which these visits by the commission and for the drafts- policies of racial preference have negatively man of the constitution. The CCF raised affected the Indian and Chinese communi- money from or through International Alert, ties. After the 1987 coups, Mahathir Mo- Conciliation Resources, the governments of hammed, prime minister of Malaysia, visited Framing the State in Times of Transition 295

Fiji to offer support, as did Lee Kwan Yew of cept of equal citizenship, and the rights of Singapore.74 Various Malaysians had come the individual as basic building blocks of to Fiji to advise, and a retired judge advised the constitutional and political system. It the government and SVT when the consti- had also, ever since the promulgation of the tution was being negotiated. But when the 1990 constitution, relied on the Convention commission visited Malaysia, the effect was on the Elimination of All Forms of Racial rather the opposite of what one might have Discrimination (CERD), which Britain had anticipated. Far from appealing to Sir Paul applied to Fiji during the colonial period. At Reeves and Brij Lal as a model of racial jus- one point, there had been talk of persuading tice that Fiji might emulate, it appeared to another country to make a formal complaint the Fijian member of the commission that against Fiji to the international committee the Malaysian system should not be emu- supervising the CERD. Mauritius had al- lated. He did not like what he saw as a sys- ready agreed to bring the matter to the com- tem biased in favor of Muslims and did not mittee, since the convention has no optional want something similarly biased in favor of protocol authorizing individuals or political Christians.75 parties to complain to the committee. Only when Rabuka agreed to set up a process for constitution review were plans to approach International Law 77 the committee dropped. Appeals to international law in the reform Third, indigenous Fijians were power- process took three main forms. First, there fully attracted to the concept of indigenous was a general awareness of international hu- peoples having group rights. Though only a man rights norms, a consequence perhaps small part of the land has been alienated on of the general international input already the basis of freehold, or permanent owner- mentioned, and the terms of reference of the ship, many Fijians have felt that the leasehold commission required it to bear in mind “in- system has taken the control and benefits of ternationally recognized principles and stan- cane-growing land away from them; they also dards of individual and group rights.” The feel that they have lost power over their own submission of the NFP and FLP referred political destiny. In the SVT submission to © Copyright by the Endowment78 of considerably to international human rights the Reeves Commission, of which the chief norms, and other writings around the theme craftsman is believed to have been a Muslim theof reform United did the same. ThisStates is reflected inInstituteIndo-Fijian,79 considerable of referencePeace is made the Reeves Report, which discusses relevant to the Draft Declaration on the Rights of norms, at some length.76 Section 3(b) of the Indigenous Peoples and the concept of self- final constitution provides that in interpret- determination, though it also recognizes ing the constitution, regard must be had for that the position of indigenous Fijians is not “developments in the understanding of the precisely that of indigenous peoples as envis- content of particular human rights; and de- aged in the UN Draft Declaration.80 The last velopments in the promotion of particular point was brought out by various contribu- human rights,” which requires reference to tions to the constitutional debate, including international as well as foreign law. This for- that of an official of the World Council of mulation was apparently added at the draft- Indigenous Peoples.81 The Reeves Commis- ing stage. sion was unconvinced that the international Second, the Indo-Fijian community had principles were applicable in the way that the appealed to international norms, the con- SVT suggested, stating that Fiji’s situation is 296 Jill Cottrell and Yash Ghai

very different from that of countries such as All is well if the vulagi is humble, respectful, tol- New Zealand. It also thought that the Draft erant and cooperative. Declaration did not justify discrimination 85 82 The submission of the FLP-NFP, by way of against other communities. contrast, reads: We have not sought to promote the interests of The Issues our supporters at the expense of other people of Fiji for we do not think that that approach Ethnicity is fruitful. We believe that all the people of Fiji The issues that confronted the commission share a common destiny, and that the country will not progress unless there is a tolerance and mainly related to ethnicity. This was inevi- accommodation of different views and interests. table in view of the background—and the composition of the commission, while it re- The submission goes on to deal with every sponded to the element of ethnicity, also en- element one would expect to find in a con- sured that it remained central. Nonetheless, at stitution, right up to the amendment pro- least some of the political parties and NGOs cess. The SVT submission viewed that of that participated in the process responded to the FLP-NFP as a further manifestation the challenge of a comprehensive review in a of Indian hypocrisy, hiding intentions of comprehensive way. The document itself was dominance that it traced back to Jawaharlal a blueprint for a fundamental shake-up of Nehru.86 the entire system. The range of submissions Fundamentally different approaches to is dramatized in this section by drawing es- the ethnic issue motivate the two submis- pecially on the submissions of the SVT and sions. The SVT document accepts, and even the FLP-NFP, though particularly the for- glorifies and justifies, difference but it is a mer submission rather distorts the nature of difference mediated under the hegemony the debate. It should not be thought that all of one ethnic group. Its proposals tended to submissions from Fijians insisted on main- reinforce and harden those differences and taining the 1990 constitutional status quo. perhaps were designed to do so. They hoped The SVT submission to the commission to get the Indo-Fijians to accept their subor- ©sought, Copyright in essence, the continued dominanceby the dinate Endowment social position gracefully, in return of for of the Fijian people. It described the process a settlement of economic issues, especially thusly: those relating to land. The submission also the United Statesjustified Institute the 1990 constitution of Peace in terms of The basic premise of the review is that the 1990 87 Constitution is here to stay, but that what is de- constitutional law, legal theory, and national sirable in the interests of all communities in Fiji, need. For its part, the FLP-NFP submission and to help promote multi-racial harmony and does not ignore difference by any means, but national unity in Fiji, is to make its provisions it looks forward to a future in which races more considerate of the position and sensitivi- work together and proposes institutions and ties of all communities in Fiji’s multi-ethnic and multi-cultural society.83 structures that are positively designed to en- courage cross-ethnic collaboration. Its submission placed emphasis on the non- Fijians as vulagi, and the way in which Fijian Political Control tradition expected vulagi to be humble and to know their place; it contained extended quo- Political control involved two main issues: tations from the work of a Fijian nationalist the number of parliamentary seats that the academic, which included the following:84 two main ethnic groups would hold and the Framing the State in Times of Transition 297

ethnic identity of the prime minister. The first general election after the new constitu- commission did not recommend any limita- tion was enacted. tion on the latter. The former involves mainly The system adopted in section 54(1) of the question of ethnic seats, and also whether the constitution is the alternative-vote sys- there would be a first-past-the-post, or ma- tem—known as AV for short—proposed joritarian, electoral system or some form of by Donald Horowitz and accepted by the proportional representation. The lines were commission.88 Under the system, each elec- clearly drawn: The SVT and many other tor indicates first choice of candidate, second Fijian organizations wanted the retention choice, and so on. When first preferences of a system that ensured that Fijians main- are counted, if no candidate obtains over 50 tained political control, rejecting a common percent of the votes cast, the candidate with roll and formal provisions for power shar- the fewest first preferences is eliminated and ing, mentioned below. The opposition par- the second preferences of that candidate’s ties were prepared to accept that the GCC voters are distributed among the remaining would nominate the president, almost cer- candidates. In open (noncommunal) seats tainly ensuring that he would always be a especially, the hope was that parties would Fijian. They were also prepared to accept the plan second preferences to be given accord- retention of some seats elected on a commu- ing to party strategy, which would involve nal basis, but wanted to move further away cross-ethnic cooperation. The system was in- from ethnic voting. The final decision de- corporated into electoral law, dividing ballot parted from the Reeves recommendations papers so that voters who wanted to exercise and was an area in which Rabuka and Reddy their individual choice could do so by num- reached a compromise that they managed bering individual candidates on the list on to sell to their respective parties. The com- the bottom segment of the ballot paper. But mission recommended forty-five open seats, voters could leave the choice to their party twelve Fijian seats, and ten Indo-Fijian seats. and just tick the name of their party above The constitution prescribes twenty-five open the line, on the top of the ballot paper. seats, twenty-three Fijian seats, and nineteen The other structural issue related to the © CopyrightIndo-Fijian seats. by the Endowmentsenate. The commission recommended of a The system of voting for the seats received mainly elected body, though the final version particular attention, though the SVT did not involves appointed members, fourteen se- theaddress United it. Other groups focusedStates on encour- Institutelected by the GCC, nineof by thePeace prime minis- aging cross-ethnic cooperation, or in other ter, and eight by the leader of the opposition. words, diluting ethnic control. The CCF urged a system of proportional representation. It had held a number of meetings on the issue Fijian Interests of electoral systems, inviting various overseas There was much talk in the negotiations about experts; one very active member, Father Da- the “paramountcy” of Fijian interests. The ra- vid Arms, a Catholic priest, produced various tionale lay in the concept of indigenousness, models of possible systems. The FLP-NFP with much being made in some quarters of proposed a preferential voting system for the history and myths of the Fijian people. communal seats and a nationwide party list The corollary was argued that Fijians should system of proportional representation for the maintain political control, as well as tradi- national seats. As it turned out, the system tional forms of social organization. But for chosen was crucial for the control issue in the some commentators on the constitutional 298 Jill Cottrell and Yash Ghai

debate, including some Fijians, the real is- state. This issue resurfaced as late as the de- sue lay in the tension between tradition—or bate on the constitution amendment bill, imagined tradition, some might say—and when a number of Fijian members empha- change, and between the chiefly elites and the sized that the GCC attached importance to ordinary person. The traditionalists insisted Fiji being a Christian state. In fact, one of that once primacy of the Fijian interests was the amendments that was made at a very late recognized, the foundation would be laid for stage was moved by the prime minister, pre- a harmonious existence for all. In fact, nei- sumably to take some of the heat out of the ther the Indo-Fijians nor other communi- issue; it elaborated the preambular reference ties challenged the Fijians’ key legitimate to adopting Christianity, with specific refer- in­terests. The Indo-Fijians had argued for ence to conversion from heathenism—no equality and rights of individuals but were doubt viewed by many Hindus as a dig at prepared to accept a very significant degree their religion.91 of group rights for indigenous Fijians. The Indo-Fijians even recommended that legisla- tion protecting Fijians—including their land Land rights, which greatly disadvantaged Indo- As mentioned earlier, land was a key issue Fijians—should remain entrenched, a na- that has proven remarkably difficult to deal tional role for the GCC should be acknowl- with. Even the CCF, which tackled so many edged, and effectively the president should contentious issues, tended to shy away from always be an indigenous Fijian, to symbolize it. The CCF’s own submission to the Reeves indigenous Fijians’ special status. Commission makes no specific suggestions The commission rejected notions of a right on land. The FLP-NFP proposed that the to Fijian paramountcy but did propose what legislation protecting Fijian interests, in- they described as a “protective principle” of cluding those in land, should continue to the paramountcy of Fijian interests, the idea have special protection. It also proposed a of which was to ensure that these interests requirement of affirmative action to provide were not subordinated to those of other eth- land to the landless. Although all parties and nic groups.89 communities realized that land was a major © Copyright by theissue Endowment requiring constitutional settlement— of especially as the leases of many farms that Religionthe United StatesIndo-Fijians Institute rented from of indigenous Peace Fiji- Some churches argued that Fiji should actu- ans were to expire shortly—they also felt ally be designated a Christian state, though that putting the issue on the current agenda precisely what this might mean was not would overburden it, and that a settlement clearly articulated, and it was as much politi- might be easier once a power-sharing system was in place. Rabuka certainly took this view, cal as religious. A speaker at a CCF consulta- 92 tion said of a leader who would like Sunday and he persuaded a reluctant Reddy. observance written into the Constitution:

I said “How do you justify this, from our teach- Human Rights ings from the Bible?” He said “This is not bib- The 1970 constitution contained a bill of lical or theological, this is political. This is for Fijians.”90 rights of its time, with no recognition of eco- nomic, social, and cultural rights. The 1990 The Reeves Commission recommended constitution also contained a wide provision maintaining the separation of church and for suspension of its broadly similar rights. Framing the State in Times of Transition 299

The SVT conceived of rights as a group mat- to benefit the Fijian community, mainly in ter, but other political parties and civil society education and economic opportunity. There laid greater emphasis on individual rights. As were far more scholarships for Fijians and mentioned earlier, everyone resorted to inter- special loan programs, as well as a Fijian national law to support their positions. The holding company designed to hold commer- SVT referred to the Draft Declaration on cial assets on behalf of the Fijian community. Indigenous Peoples and the UN Declaration After 1987, the balance in the civil service on the Elimination of All Forms of Intoler- had radically shifted. The SVT wanted the ance and Discrimination Based on Religion pro-Fijian programs to continue, while the and Belief; others relied on the International coalition submission argued that affirma- Covenant on Civil and Political Rights and tive action should not be restricted to one the International Covenant on Economic, community. Social, and Cultural Rights. The Reeves Commission proposed the Human rights can be profoundly subver- inclusion of a provision about social jus- sive of accepted institutions or perceived as tice, ­targeted at those in need rather than so, and in Fiji, human rights not only affected one ethnic group specifically. This was to the relations between the two major commu- impose a duty on the state to institute pro- nities but potentially challenged the current grams, by legislation, particularly in the areas Fijian social organization. Even in the past, of housing, education, and participation in notions of human rights had affected tradi- commerce and in public service. Programs tional structures: Many of the provisions of were to have clearly established criteria for the Native Regulations imposing restrictions participation and measuring success. Such on commoners had been removed shortly programs would also expire after ten years, before independence. There was also general though they could be reinstated.94 The final unease among the chiefly class regarding no- constitution largely enacts these proposals.95 tions of liberal individual rights. The bill of rights ultimately adopted in- cludes full versions of familiar rights, such Reconciliation as those of free speech, association, and as- It was the almost universal hope that a new © Copyrightsembly, as well as freedom fromby discrimina the- Endowmentconstitution would lead to a more ofharmoni - tion. There are also more modern rights, such ous relationship between the ethnic commu- as the right to privacy and to basic educa- nities in Fiji, though visions differed regard- thetion, thoughUnited there is no mentionStates of rights to Instituteing how this was to ofbe achieved, Peace especially health, housing, and food, such as one finds if one contrasts the SVT submission with in the South African and some other recent those of the FLP-NFP and CCF. constitutions. Noting that the Reeves report The CCF proposed that power sharing incorporated some rights from the legisla- should be a feature of the constitution, at all tion of New Zealand and Canada, Vakatora levels of government, based essentially upon concluded, “I believe that the Bill of Rights electoral support for political parties.96 The we have recommended is one of the best in FLP-NFP submission also proposed a system the world.”93 under which any party that obtained more than 20 percent of the parliamentary seats should be represented in the cabinet, which Affirmative Action should be racially balanced. The principle of Since 1987, the government had embarked ethnic proportionality extended to public of- on a major program of affirmative action fice and the use of national resources. 300 Jill Cottrell and Yash Ghai

The Reeves Commission itself did not ac- SVT had invoked in its submission to Reeves, cept the proposal for power sharing in the as well as on the doctrine of necessity. Both cabinet; its choice of the AV voting system the court of first instance and the Court of was directed at encouraging interethnic co- Appeal rejected these arguments. The Court operation of a different sort. However, when of Appeal held, first, that even if necessity the matter came to the JPSC, politicians could justify temporary exceptional measures opted for a model of compulsory power in an emergency, the temporary measures sharing at the cabinet level. Under section 99 must be directed toward restoring constitu- of the constitution, any party that has won tionality. Second, the court held that there at least 10 percent of the seats in the House was insufficient evidence of a new legal order of Representatives has the right to a seat or having been effectively established. The 1997 97 seats in the cabinet proportional to the num- constitution remained in force. However, ber of seats in the House. Chaudhry’s government was not restored. A new election brought to power a Fijian gov- ernment headed by , who The Aftermath had led the interim military-backed govern- The 2000 Coup and Abrogation ment between 2000 and 2001. of the Constitution There was a brief period of euphoria after Interpreting the Aftermath the constitution was passed, not restricted Should we view the results of the 1999 elec- to the Indo-Fijian community. Most people tion as a verdict on the constitution? Is the were happy to return to a situation in which coup of 2000 damning evidence that the the constitution had legitimacy at home and constitution was a failure? overseas. Few wanted to live at odds with To view the 1999 election as a popular their neighbors. The constitution became vote against the constitution is to oversim- law in 1997 but came into effect with the plify. Such a view ignores the possibility that dissolution of parliament in 1999. Various the vote reflected not only a rejection of the institutions were set up under it, including constitution makers, at least on the part of ©a human Copyright rights commission. The by first electhe- the Indo-FijianEndowment community, but also a hopeof tions under the new electoral system in 1999 that the FLP could deliver in terms of poli- produced results more remarkable even than cies.98 There may have been some element thosethe in 1987: United Rabuka’s SVT obtainedStates only of Institute Rabuka and Reddy takingof victoryPeace for seven seats and Reddy’s NFP not one. The granted, as they let the campaigning initia- Fiji Labour Party—no longer in coalition tive pass to others. And Labour also seems to with the NFP, but working to some extent have latched on to the possibilities created by with the Fijian Association—won; Mahen- the new electoral system with more success dra Chaudhry had to be invited to form a than any other party. government. Chaudhry seemed to begin However, clearly both major communities well, appointing a cabinet in which a major- were worried about the constitution at some ity of the members were Fijian, including his level and even harbored a sense that they deputy prime minister. But a year later, there had been betrayed. At pre-election meetings, was another coup. Reddy tried to persuade NFP members to The suspension of the constitution was see things to some extent from Fijian per- challenged in court, and the government re- spectives, in some eyes thereby dooming lied on the successful coup doctrine that the himself to lose the election.99 It was all too Framing the State in Times of Transition 301

easy for those who wanted to stir up strife not translated into Fijian or Hindi—under- to portray the constitution to both sides as standable given that it was over seven hun- a sellout.100 dred pages long, but it thus remained largely Of course, it is impossible to tell what unknown to a majority of the people,101 in- would have happened if the FLP had not cluding the army.102 The problem continued won the elections in 1999. That said, if with the actual constitution, which was sup- Rabuka had won and the NFP had made a posed to be translated into the two main local good showing, there is some reason to sup- languages but never was. As a consequence, pose that they could have worked together the constitution that people criticized, and harmoniously in a power-sharing arrange- which disaffected parties used as a rallying ment. Various factors contributed to the cry—especially on the Fijian side, which said coup: Chaudhry’s personality and political that Fijian interests had been sacrificed—was miscalculations; the personal circumstances not the real document at all, but a figment of of George Speight, who led the civil coup; people’s fears and imaginations. When the and the Fijian elite’s fears and ability to play CCF, undaunted by the coup, continued to on those of the ordinary Fijian, combined introduce people to the constitution’s ideas with the fact that most people did not un- and contents, they were repeatedly met with derstand the constitution and thus could comments along the lines of “It is a good readily believe that it disadvantaged them. constitution—we did not know!” Much of The two main parties and, ultimately, the the myth and manipulation was deliberate, nation seem to have paid a price for the rather but was much easier to accomplish because secretive way in which the constitution- people had no real way of knowing the truth making process was carried out. The Reeves of what they were being told. For these vari- Commission itself offered no options on con- ous reasons, important groups, such as the tent to the people. The people and the par- military and the people generally, did not ties fed their ideas into the machine that was understand the constitution or feel that it the commission and ultimately out popped was theirs. a complete report. When it came to formu- Ignorance of the constitution perhaps con- lating the actual document for enactment, tributed to fears of what an Indian victory— © Copyrightthe draft again disappeared intoby a black the box, Endowmentas the result of the election was regarded—of to be adjusted in view of the prejudices and meant for the Fijian community. People felt interests of members of parliament and the that their land was going to be taken away, thetwo mainUnited parties. The people States were again pre- Institutea perception that some of politicians Peace were only sented with a fait accompli. True, it may all too happy to encourage. In fact, the consti- have been better than earlier constitution- tution retained the existing land system and making exercises—which is perhaps why it the entrenched status of land legislation. was deemed acceptable—but in terms of true The introduction of the new constitution popular participation it left a good deal to was bound to be a delicate moment. Perhaps be desired. The failure to carry out any form there was not enough realization of this. Es- of civic education in advance may also have pecially since 1987, certain sections of the Fi- contributed. jian community had formed vested interests There was also insufficient popular edu- in the current system, involving an amalgam cation after the Reeves Report or the final of chiefly tradition, commercial enterprise, constitution was produced, though there was land, and military force. These would all be some donor-funded education for parliamen- threatened by a genuinely democratic sys- tarians and the public service. The report was tem and more so by a transition that placed 302 Jill Cottrell and Yash Ghai

political power in the hands of Indo-Fijians rights, and the vision of a more integrated as well as ordinary Fijians. It was evidently in political community was hinted at in the elites’ interest to resist the change of govern- agreement to review the electoral system to ment even more than a change in the con- provide a nonracial element. The 1990 con- stitution. An attack on a new constitution is stitution was explicitly racist. Its assumptions often no more than tactical, as perhaps was were the further reinforcement of the sepa- the case in the coup after the 1999 general rate markers of indigenous Fijians by resur- elections. The moment was especially deli- recting elements of their customary laws and cate in Fiji, where the coup taboo had been judicial tribunals as well as their hegemony broken: It was not unthinkable that the mili- over other communities. tary could take over. Rejecting the racial hegemonic model, the Yet it must be acknowledged that the con- 1997 constitution moved further toward the stitution itself had contradictions. Perhaps consociation model, principally in providing they were not, in the short term, the cause for executive power sharing while flagging a of its misfortunes. But they are likely to af- more nonracial, even liberal, model. How- fect its full implementation. Drawing upon ever, it was unprepared—or perhaps more its sparse terms of reference, the Reeves accurately, unable—to dismantle the laws Commission advanced a vision of Fiji that and institutions that separated the indig- did not suit all key groups. It embraced an enous Fijians from others, such as the GCC, image of a nonracial, multicultural Fiji, with the Provincial Councils, and the Fijian Ad- full respect for human rights and social jus- ministration, though it did claw back some tice. It rejected both the consociationalist as- of the 1990 provisions on customary law and sumptions of the independence constitution tribunals. The Fijian institutions provided a and the racial hegemonic assumptions of the powerful base for ethnic identity and mo- 1990 constitution. However, its long-term bilization, and a source of legitimacy that goals were not always consistent with some often competed with constitutional values specific recommendations. and allocations of authority. Moreover, no- The independence Fiji constitution, built body dared to touch the question of Fijian primarily on the idea of racial communities, land rights and fairness to Indo-Fijians in ©was anCopyright imperfect reflection of consociation by the- lease Endowment arrangements, although most leases wereof alism. It sought to give all communities fair about to expire—perhaps the most conten- representation but deliberately overrepre- tious public issue of all. The qualified veto, sentedthe the Unitedgeneral electors to Statesensure Fijian to Institutebe exercised in the senate, of was Peace preserved, domination. It did not provide for power although the senate would move away from sharing at the executive level, nor the princi- domination by political parties. The concept ple of proportionality in state services. It did of citizenship that emerges from the consti- nothing to disturb indigenous Fijians’ mo- tution’s provisions does not conform to the nopoly of the armed forces. It provided vari- universal and equal citizenship of liberalism. ous forms of self-government and autonomy Despite Reeves’s correct analysis of indig- for Fijians through the Provincial Councils, enous rights, group rights may clash with in- Fijian Administration, and the GCC, as well dividual rights. The advance to nonracialism as a qualified veto for them, but it gave little and liberalism was signaled by reforms to to other communities. These were not merely the electoral system, allocating a majority of protective provisions; they were at the heart parliamentary seats to common roll voting; of a distinctive Fijian paramountcy. Yet there a stronger system of human rights, substan- were strong impulses of democracy and tively and institutionally; and social justice Framing the State in Times of Transition 303

for the disadvantaged of all communities, in- reformed in a way that would do away with stead of exclusively for one community. the assumptions of its own foundation. In The problems of the constitution-making other words, the future constitutional order process were not all the fault of the Reeves depended on members of parliament, many Commission, as we have seen. The com- of whom had a vested personal and ethnic mission did not support the same degree of interest in preserving the current constitu- consociationalism as is found in the constitu- tion. The requirement of enhanced majori- tion. It proposed a much higher proportion ties for passing the amending bill meant that of nonracial seats than was finally adopted. each major ethnic group had a veto, which And it explicitly rejected the model of execu- was of more value to the Fijian community tive power sharing. By retaining the Reeves than to the Indo-Fijian. The negotiations in system of AV voting and providing for mul- the JPSC, the party submissions, and the tiparty executive coalitions, the constitution proceedings of the commission itself had to contains two somewhat contradictory meth- be carried out in the shadow of this fact. ods to reach the same objectives and allows the logic of adversarial politics and voting to prevail over interethnic cooperation. Po- Conclusion litical leaders saw the route to government Some commentators have concluded that the under the coalition formula as building up constitution was fundamentally flawed be- enough support in their own community to cause it permitted the emergence of an Indo- secure sufficient parliamentary seats, severely Fijian prime minister, which was unaccept- straining multiparty government. able to the Fijian community. We find this This brings us to the effect of context to be a simplistic analysis. It is true that the and procedure. In terms of institutions, the prime minister was perhaps particularly hard constitution could perhaps only be interim, for the other community to swallow. But the marking a departure from old orthodoxies result of the 1999 election also made it much but postponing some of the goals of the new easier for those sections of society that re- vision. An abrupt shift would have generated ally did not want any change in the consti- tensions and anxieties jeopardizing the entire tutionally sanctioned reinforcement of Fijian © Copyrightproject. These constraints by operated the on the Endowmentparamountcy—meaning the paramountcy of of Reeves Commission as they did on numerous a particular class and a particular structure groups and individuals who presented their for society—to portray the entire constitu- theviews United to it. The procedure States for making andInstitutetional settlement as aof disaster Peace for Fijians. It adopting the constitution imposed its own was easier to do this because so few people constraints. The commission’s composition, really understood the document. How much restricted to two local members representing could have been done by way of public edu- parties of competing ethnic groups, was not cation within the time frame is unclear. But propitious for defining national goals and we have shown that the process was far less identity, though on this point the commis- transparent and participatory than it might sioners confounded the critics and gave us have been, and we have also tried to show a wonderful and powerful vision of Fiji and why this was so. The experience of other a host of sensible recommendations. How- countries has shown that in the final analy- ever, the last word was not with the commis- sis, what matters may be more the views of sion, unfortunately, but with politicians—and community leaders than the participation of more important, with the parliament under the people themselves. And though Rabuka the 1990 constitution, which was slated to be and Reddy may have tried to lead in one di- 304 Jill Cottrell and Yash Ghai

rection, other leaders were marching deter- tingencies it could not control: The election minedly in another. of a prime minister with little respect for The content of the constitution itself may the aspirations and conciliatory procedures share some of the blame. The electoral sys- embodied in the new constitution, an unsuc- tem, which hardly anyone understood, was cessful businessman cut off from the largesse somewhat responsible for the 1999 election of the state who capitalized on ethnic fears, results. A power-sharing arrangement that is and the easing of external pressures on con- technically clumsy and politically unwork- stitutionalism all damaged the fortunes of able with the current players gave the Qarase the constitution. government a good reason to press for con- In an earlier draft of this paper we con- stitutional amendment. And we have noted cluded that “the constitution survives, and the constitution’s awkward marriage of the there remains considerable support for it liberal and the consociational that retained among sections of the population. The vi- many ambiguities of the past. sion of Fiji on which the constitution rests A constitution is not established in a vac- still has its admirers. It is too early to write it uum. For a new and just constitutional sys- off.” This is not the place to explore the rea- tem to take root in Fiji, a great deal of dam- sons behind the 2006 and 2009 coups (the age from the past must be undone. Much of first military and the second presidential, that damage can be traced to the colonial but both at the behest of the commander of experience; other elements originate in the Fiji’s military forces). The latter insisted that post-1987 period. The Reeves Commission he supported the 1997 constitution (except aimed for a radical restructuring of the values for its electoral system); he acted in 2006 to and institutions of the state, and though the prevent the government from subverting the people may have been ready for such funda- spirit of that constitution with laws designed mental change, politicians clearly were not. to benefit Fijian land owners, and to give am- Experience shows that if politicians, who nesties to the 2000 civil coup leaders. How- have a special purchase on state institutions, are not committed to a constitution, its pros- ever, faced with the decision of the Court of pects remain dim. In trying to please many Appeal that his government was illegal, he ©groups, Copyright the thrust of the constitution by wasthe seems Endowment to have jettisoned both the constitu of- blunted. One critical factor was the reversal tion and the judiciary readily, insisting that of the Reeves Commission’s proportion of this is all in the interests of achieving the the United Statesradical Institute reforms that his governmentof Peace is set racial to nonracial seats, with the result that 103 ethnic politics remained dominant. Con- on. All this says much more about person- stitutions that aim for fundamental change alities than it does about the 1997 constitu- 104 need much more care and nourishment than tion. Indeed, the 2006 coup prematurely this one got. Had its principal proponents, ended the first government to be constituted Rabuka and Reddy, won the elections, more in a multiparty way as directed by the con- concerted efforts might have been made to stitution, though Jon Fraenkel suggests that observe its spirit and implement its provi- this government was already falling apart, sions. Certainly little was done to prepare the and had it held together, there would have 105 public, in terms of information and persua- been no 2006 coup. How much of the sion, for the new constitution and the radical spirit of the 1997 constitution will survive changes that it was intended to promote. The into the next constitutional phase can be a new constitution remained hostage to con- matter of conjecture only. Framing the State in Times of Transition 305

Notes 1992). The background section of this chapter relies heavily on this book. 1. George Speight was dismissed soon af- ter the 1999 election as chair of the Fiji Hardwood 10. The Council of Chiefs was originally set up by the first colonial governor, Sir Arthur Gor- Corporation and prosecuted for offenses connected don. It is now known as the Great Council of with foreign exchange and extortion. See Michael Chiefs (GCC), or Bose Levu Vakataranga (BLV), Field, , and Unaisi Nabobo-Baba, and has taken on an aura of antiquity and acquired Speight of Violence: Inside Fiji’s 2000 Coup (Auck- various forms of status and power. It has been used land: Reid Publishing, 2005), especially chap. 7, to legitimize events such as the 1987 coup that have “Speight, Son of Sam: Failed Businessman.” little or nothing to do with chiefly traditions. 2. Fiji Constitution Amendment Act 1997 11. That was based (though with some- dif Revocation Decree 2000, followed by Constitution ferences) on the European Convention on Human Abrogation—Interim Military Government and Fi- Rights, to which the United Kingdom had adhered nance Decree. in 1954, and was copied in many colonies. See Stan- 3. Republic of Fiji v. Chandrika Prasad ley de Smith, The New Commonwealth and Its Con- ABU0078/2000S, reported (2001) 2 Law Reports of stitutions (London: Stevens & Sons, 1964), chap. 5. the Commonwealth 743. The Court of Appeal con- 12. The laws were the Fijian Affairs Act; the sisted for the purposes of this case of three Austra- Fijian Development Fund Act; the Native Land lian judges (Sir Maurice Casey, Sir Ian Barker, and Act; the Native Land Trust Act; the Rotuma Act; Mr. Justice Handley), Sir Mari Kapi from Papua the Rotuma Land Act; the Banaban Land Act; and New Guinea, and Mr. Justice Gordon Ward, then the Banaban Settlement Act, and other laws which of the Tongan judiciary though appointed in 2004 affect Fijian land, customs or customary right. to head the Fiji Court of Appeal. 13. The narrow range of consultation and 4. The new case is Qarase v. Bainimarama discussion in Fiji is clear from Kamisese Mara, The (2009) FJCA 10 April 9 2009 (available at the Pa- Pacific Way: A Memoir (: Center for Pacific cific Island Legal Information Institution Web site Studies, University of , 1977), chap. 11. at www.paclii.org/fj/cases/FJCA/2009/10.html), re- 14. For an account of the attitudes of the two versing the decision of the High Court on October 9, communities, especially the Fijian community, see 2008. That case was strongly criticized, including by Mara, The Pacific Way. Mara states that at the 1970 George Williams, Graham Leung, Anthony Regan, constitutional conference, he would have preferred and Jon Fraenkel in Courts and Coups in Fiji: The to keep people in Fiji better informed, but it did not High Court Judgment in Qarase v. Bainimarama (Re- seem to be the practice at such conferences where search School of Pacific and Asian Studies, Austra- difficult issues were to be resolved (p. 102). lian National University, “State, Society and Gover- 15. For an overview of constitution-making © Copyrightnance in ” Discussion Paperby 10 ofthe 2008). Endowment of processes in the South Pacific, see Yash Ghai, “Con- 5. Adrian C. Mayer, Indians in Fiji (London: stitution Making and Decolonization,” in Law, Pol- theOxford United University Press, 1963), States p. 11. Instituteitics and Government in ofthe Pacific Peace Island States, ed. 6. Around the time of the constitutional Yash Ghai (Suva: Institute of Pacific Studies, USP, debate, the main source was the UN Development 1988), p. 1; and J.W. Davidson, Samoa Mo Samoa Programme’s (UNDP) Fiji Poverty Report, available (: Melbourne University Press, 1987). at www.undp.org.fj/index.cfm?si=main.resources& 16. According to Mara, it was the leader of cmd=forumview&cbegin=0&uid=publications& the Indian Party, Siddiq Koya, who proposed that cid=117. there should be no election. See The Pacific Way, 7. See UNDP, Fiji Poverty Report. p. 97. 8. Robert Norton, “Reconciling Ethnicity 17. The Street Report was Parliamentary Pa- and Nation: Contending Discourses in Constitu- per no. 24 of 1975. tional Reform,” The Contemporary Pacific, vol. 12, 18. Mara, The Pacific Way, p. 126, pointing to no. 1 (2000), pp. 83–122. the fact that the constitution said “if Parliament 9. Brij Lal, Broken Waves: A History of Fiji in subsequently makes any alteration”—a somewhat the Twentieth Century (Hawaii: University of Ha- weak argument, for presumably Street might have waii Press, Pacific Islands Monograph Series, no. 11, recommended no change. 306 Jill Cottrell and Yash Ghai

19. Lal, Broken Waves, p. 224. 1990), p. 15. Fiji Voice was published by the Fiji In- 20. Pronounced bavandra. In Fijian, d is pro- dependent News Service, PO Box 106, Roseville nounced nd and b is pronounced mb; hence, Rabuka NSW 2069, Australia. is rambuka. Further, g is pronounced as a soft ng and 36. Winston Halapua, Tradition, Lotu, and q as a hard ng; hence, the prime minister, Qarase, Militarism in Fiji (, Fiji: Fiji Institute of Ap- is ngarase. Finally, c is pronounced th, so Timoci is plied Studies, 2003), p. 196. Halapua, a Fiji citizen Timothy. of Tongan origin, is now Anglican Bishop for the 21. For an account of the election see Brij Lal, Diocese of in Aotearoa, New Zealand. “Before the Storm: An Analysis of the Fiji Gen- 37. Argued in Halapua, Tradition, Lotu, and eral Election of 1987,” Pacific Studies, vol. 12, no. 1 Militarism. (1988), pp. 71–96. 38. Lal, Broken Waves, p. 328. 22. Lal, Broken Waves, p. 272. 39. Fiji, Parliamentary Debates, House of Rep- 23. The committee had available the services resentatives, June 30, 1997, p. 569 of published par- of a retired of law from the United King- liamentary debates. dom, Keith Patchett. 40. Mara, The Pacific Way, p. 223. 24. Interestingly, the Manueli Report—of the body that followed the failure of the Falvey Com- 41. Soqosoqo ni Vakavulewa ni Taukei, mittee—used the original phrase in quoting its pre- roughly translated as Fijian Political Party. decessor’s terms of reference (para. 1.3). 42. In Mahendra Chaudhry, “Why We Backed 25. Report of the Constitution Review Commit- Rabuka,” Fiji Voice, no. 22 ( July–August 1992), p. 3, tee July/August 1987, Parliamentary paper No. 21 and the following article; the correspondence be- (1987) (Suva: , 1987). See Lal, tween the FLP and the SVT is reproduced. Broken Waves, 286–9, for an account of the commis- 43. Mara, The Pacific Way, p. 223. sion, including of some of the submissions to it. 44. Lal, Another Way, p. 173, relates the com- 26. Draft Constitution for the Republic of plaint of women in about the absence of any Fiji, September 1988. woman on the commission and suggests they were 27. Brij Lal, Another Way: The Politics of Con- silenced by Vakatora’s pointing out the presence of stitutional Reform in Post-Coup Fiji (Canberra: Quentin-Baxter. Australian National University, National Centre for 45. The chief justice was a Fijian, Sir Timoci Development Studies, 1998), p. 10. Tuivaga, whom the Indo-Fijian parties to the ne- 28. Report of the Fiji Constitution Inquiry and gotiations viewed with some distrust. Though the Advisory Committee, August 1989 (personal files of judges, including the chief justice, told the govern- ©authors). Copyright by thement Endowment in 1987 that the coups were unlawful, in of2000 29. Mara, The Pacific Way, p. 223. Sir Timoci was viewed in some quarters as having 30. The Fiji Constitution of 1990: A Fraud on been too ready to embrace the coup. the Nation (AUnited Report by the Fiji Labour States Party and Institute46. His name was put forwardof byPeace Yash Ghai. the National ) (Nadi: Sunrise Press, Several other names were being bandied about, but 1991), p. 2. Written by Yash Ghai on behalf of the in the end Reeves and one other, a former colonial NFP-FLP Coalition. civil servant, were interviewed by , chair 31. Lal, Another Way, p. 12. of the Joint Parliamentary Select Committee. 32. Tomasi Vakatora, From the Mangrove 47. Especially in Lal, Another Way. Swamps, 2nd ed. (Suva: Government Printer, 1998), 48. Vakatora, Mangrove Swamps. p. 97, comments that the public was “afraid to 49. Ibid. speak their minds” to both the Falvey and Manueli committees. 50. Lal, Another Way, especially pp. 174–75. 33. See Lal, Another Way, p. 14. 51. Ibid., p. 174. 34. On file with the authors. 52. Vakatora, Mangrove Swamps, p. 114. 35. Blaustein was reported as distancing him- 53. This was a deliberate decision of the gov- self from the constitution once it was passed, saying ernment, according to Brij Lal in a discussion with that he had wanted a “multi-racial and proportional the authors. system.” See Fiji Voice, no. 15 (September–October 54. Vakatora, Mangrove Swamps, p. 117. Framing the State in Times of Transition 307

55. Fiji, The Fiji Islands: Towards a United Fu- 69. The papers were subsequently published ture, Parliamentary Paper no. 34 (1996) (“Reeves in two volumes, the first dealing with the socioeco- Report”), chap. 4, “How the Commission Went nomic situation in Fiji and the other presenting for- about Its Task.” eign experiences. See Brij Lal and Tomasi Vakatora, 56. In , the chair of the constitution eds., Fiji in Transition Suva: School of Social and review commission—Yash Ghai—prepared a book Economic Development of the University of the reviewing the structure of the existing constitution South Pacific, 1997); Lal and Vakatora, eds., Fiji and suggesting alternative approaches, without ad- and the World Suva: School of Social and Economic vocating any. See Reviewing the Constitution (Nai- Development of the University of the South Pacific, robi: CKRC, 2001). The commission also produced 1997). a set of questions, titled “Issues and Questions,” 70. See, e.g., Arend Lijphart, Democracy in perhaps rather too detailed and tending to focus Plural Societies: A Comparative Exploration (New the attention of citizens on minutiae rather than on Haven, CT: Yale University Press, 1977). fundamentals. 71. Authors included Guy Powles, Cheryl 57. This document is reproduced in Ganesh Saunders, Anthony J. Regan (Australia), Alex Frame Chand and Vijay Naidu, eds., Fiji: Coups, Crises, (New Zealand), Rohan Edrisinha (Sri Lanka), M.P. and Reconciliation 1987–1997 (Suva: Fiji Institute Singh (India), MP Jain, Cyrus Das (Malaysia), of Applied Studies, 1997), p. 176. Daniel Elazar (Israel), John Darby (United King- dom), Timothy Sisk (United States), and Michael 58. Reproduced in Lal, Another Way, p. 138 ff. Reisman (United States). 59. Parliamentary Debates (HR), June 26, 72. The individual was presumably Sir Len 1997, p. 403. Usher. Lal, who mentions this comment, does not 60. Parliamentary Debates (HR), June 26, give the name, but knights of the realm with news- 1997, p. 414. paper columns are rare anywhere. See Lal, Another 61. The resultant act was the Constitution Way, p. 165. The Fiji dollar is currently worth about (Amendment) Act 1997 of the Republic of the Fiji forty-six U.S cents. Islands, Act no. 13 of 1997. 73. The Fiji Islands: Towards a United Future, 62. This is in marked contrast to the Kenyan para. 4.13. Commission, which had district coordinators for 74. At least in Lee Kwan Yew, the Fiji govern- each of seventy districts and a system of constitu- ment got more than it bargained for. He actually ency committees. These were all designed to provide criticized the government’s racist policies and told a basis for civic education and also for organizing them that Fiji would not progress without the Indi- the people in the locality for the visits of the com- ans. Yash Ghai was told that he said this in a public © Copyrightmissioners, whether for civic education, by collectionthe Endowmenttalk that was being broadcast live. The ofgovernment of views, or information sessions on the draft con- ordered the rest of the broadcast of the speech to be stitution once prepared. blocked. the 63.United The Fiji Islands: TowardsStates a United Future , Institute75. Personal information. of Peace appendix D. 76. See especially The Fiji Islands: Towards a 64. Lal, Another Way, p. 167. United Future, chap. 2. 65. Ibid., p. 168. 77. Personal knowledge of Yash Ghai, who 66. Citizens Constitutional Forum, One Na- negotiated the arrangement with Mauritius. tion, Diverse Peoples: Building a Just and Democratic 78. Respect and Understanding: Fijian Sov- Fiji (Suva: CCF, 1995). ereignty, The Recipe for Peace, Stability and Progress 67. Its Web site is at www.ccf.org.fj. (Suva: SVT, 1995). 68. The same may well be true of some read- 79. Dr. , who had been a minister ers. The Queen is head of the Commonwealth. She in the Alliance Party Government and was author is head of state of only about seventeen member of a leading book on the girmit experience. countries. There is no necessary connection between 80. The Declaration in its final form was ad- membership in the Commonwealth and being a opted in 2007, see www.un.org/esa/socdev/unpfii/ monarchy with the Queen as head of state, though en/declaration.html. it would be highly unlikely for a country to leave the 81. Roderigo Contreras, “Indigenous Inter- Commonwealth but remain a monarchy. ests: The Global Picture,” in Protecting Fijian In- 308 Jill Cottrell and Yash Ghai

terests and Building a Democratic Fiji: A Consulta- 91. Interestingly, when Rabuka introduced the tion on Fiji’s Constitution Review (Suva: Citizens bill he indicated that the JPSC had reached agree- Constitutional Forum and Conciliation Resources, ment on the request of the GCC (Parliamentary 1995), p. 47. The NFP sought the views of the lead- Debates (HR) June 23, 1997, p. 312); one would ing authority on indigenous people’s rights at the read that as saying that they had agreed with it. But UN Center on Human Rights when preparing its in the event, what was introduced was weaker. submission. 92. Personal information. 82. See The Fiji Islands: Towards a United Fu- 93. Vakatora, Mangrove Swamps, p. 114. ture, chap. 3, especially paras. 3.89–3.100. On the role of human rights, including the dialectics be- 94. Ibid., chap. 8. tween individual and group rights, in constitution 95. Ibid., chap. 5 (sec. 44). making in India, South Africa, Canada, and Fiji, see 96. CCF, One Nation, Diverse Peoples, p. 43. Yash Ghai, “Universalism and Relativism: Human 97. Republic of Fiji v. Chandrika Prasad. Rights as a Framework for Negotiating Interethnic Claims,” Cardozo Law Review, vol, 21, no. 4 (2000), 98. The latter was suggested by pp. 1095–1140. (who is, as a Labour politician, not disinterested) in a recent CCF-sponsored discussion following a lec- 83. Respect and Understanding, para. 3.1; ex- cerpts are printed in Lal, Another Way, p. 143. ture by Andrew Ladley on multiparty government. 84. From , The Facade of De- 99. Personal comment made to Yash Ghai. mocracy: Fijian Struggle for Political Control, 1830– 100. See Lal, Another Way, pp. 81–82, for 1987 (Suva: Reader Publishing House, 1991). Pro- early and hostile reactions in some quarters. fessor Ravuvu is writing of the concepts of taukei 101. One of the reasons that the draft con- and vulagi in relation to any village or place, but stitution and short report of the Constitution of using the concepts to make a point about incomers Kenya Review Commission was warmly received in generally and specifically Indians (the passage ap- general was that the report was short and written in pears in a chapter that covers, among other things, accessible language, and it and the actual draft con- the 1987 coup). The SVT clearly used the concept stitution were translated into Swahili and published of vulagi in relation to Indians (the next section as pullout sections of the daily newspapers. of the submission being “Fijians’ attitudes towards Indians”). 102. As Yash Ghai relates, “When I was in Fiji in October 2000, the head of the armed forces 85. Towards Racial Harmony and National invited me for consultations, particularly in view of Unity. the impending Court of Appeal decision on the le- 86. Ibid., p. 59. gality of the coup. All senior officers were carrying © 87.Copyright For this they cited Yash Ghaiby and Jillthe copies Endowment of the constitution. During our conversation, of Cottrell, Heads of State in the Pacific (Suva: Institute I was told that the army had only begun to study of Pacific Studies of the University of the South Pa- it and, to their surprise, found it was an excellent cific, 1990) on the successful coup doctrine. the United Statesconstitution Institute and a better one couldof not Peacebe imagined. 88. See Brij Lal and Peter Larmour, eds., But they had not known this when they more or less Electoral Systems in Divided Societies: The Fiji Con- supported the coup!” stitution Review (Canberra and Stockholm: NCDS, Australian National University and IDEA, 1977), 103. See speeches of the prime minister and which contains articles by, among others, Horowitz, the attorney general in the aftermath of the 2009 Lal, and Arms. events, available on the government Web site at www.fiji.gov.fj/publish/cat_speeches.shtml. 89. Especially paras. 3.113–19. 90. Rev. Paula Niukula, research director of 104. Jon Fraenkel, “Addendum” to Jon Fraen- the Fiji Council of Churches in Report on Consulta- kel and Stewart Firth, From Election to Coup in Fiji: tion on Fiji’s Constitution Review, University of the The 2006 Campaign and Its Aftermath, (Canberra: South Pacific, Suva, Fiji 21–23 April 1994. (Suva: ANU e-Press and Asia Pacific Press, 2007), p. 420. International Alert and School of Social and Eco- Available at epress.anu.edu.au/fiji_citation.html. nomic Development, 1994), p. 101. 105. Fraenkel, “Addendum,” p. 442.