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Constitutional Desing 2000 December 9–11, 1999 (DRAFT) Constitutional Engineering in Post-Coup Fiji1 Brij V. Lal The Australian National University Ethnically divided societies such as Fiji present political theorists and constitutional engineers, not to mention their own citizens, with complex challenges of nation building. Divisions based on a combination of ethnicity, religion, custom and language run deep. Social cleavages are often institutionalized, impeding unified political development. The search for shared common space is often overshadowed by deeply contested claims about the true character of the nation’s soul. People invoke different historical metaphors and allude to different sets of cultural and historical experiences to validate their particular – and sometimes prior – considerations in the nation’s affairs. Which symbols, rituals, ceremonies and cultural practices get state recognition and support matter greatly; they go to the core of how people define themselves, and how they are perceived, within the wider polity. This paper describes the experience of devising a constitution for a small ethnically divided state in the South Pacific. The Republic of the Fiji Islands is a multi-ethnic state whose population (in 1996) of 780,000 is divided between indigenous Fijians (51 per cent of the population), Indo-Fijians (43 per cent) and Others (6 per cent). It gained its independence from the United Kingdom in 1970 under a Westminster style constitution which accommodated special Fijian interests and concerns through entrenched provisions within an overarching framework of parliamentary democracy (Lal 1992). The assumptions and understandings which underpinned that order came under increasing challenge from the forces of social and economic change in the tumultuous years following independence (Taylor, 1987)). A military coup in May 1987 removed from power a democratically elected government whose nominally non-racial ideology was seen to question the 1 This paper draws on three of my previous publications on the subject: Another Way: The Politics of Constitutional Reform in Post-Coup Fiji (Canberra: Asia Pacific Press, 1998), ‘Towards a united future: report of the Fiji Constitution Review Commission,’ in Journal of Pacific History 32 (1), 71-84, ‘The Voice of the People: Ethnic Identity and Nation Building in Fiji,’ Journal of the Pacific Society, 22 (no. 3-4), 1-12, and A Time to Change: The Fiji General Elections of 1999 (ANU: Department of Political and Social Change Discussion Paper 23, 1999). 2 foundations of the post-colonial state and the range of vested social, political and economic interests which sustained it, and installed a political order based on the principles of racial segregation akin in some important respects to the apartheid regime in South Africa. These principles found expression in the Fiji constitution of 1990 Origins of the Fiji Constitution Review Commission The 1990 constitution, decreed into existence by President Ratu Sir Penaia Ganilau five years after the military coups of 1987, with no popular participation in its formulation or its implementation, was assumed by its authors to be an interim document. Section 161 of the constitution provided for its review at the end of seven years after the date of its promulgation, that is, before 25 July 1997. That the 1990 constitution was a contentious document is beyond doubt. The Indo-Fijian community had rejected it, and made its repeal, or at least review, the central plank in their election campaigns in 1992 and 1994.2 Equally, on the Fijian side, there was strong support for a document which was believed to entrench Fijian dominance in the political process. After the 1992 elections, which brought the Soqosoqo Vakavulewa ni Taukei to power and Major General Sitiveni Rabuka to the prime minister's chair, the government and the opposition started discussions on the review of the constitution. A Joint Parliamentary Committee was set up to make recommendations on how the review process should be undertaken. After protracted discussions, the Joint Committee recommended, and both houses of Parliament unanimously agreed in September 1993, that a Commission of Inquiry should be set up to review the Constitution. Parliament also unanimously approved the Terms of Reference for the Commission, but further progress was disrupted when the SVT government fell in November 1993. Early in 1994 the SVT returned to power with increased majority and resumed discussion on constitutional review with the opposition parties. The most important unresolved issue was the membership of the Commission. Eventually, it was agreed that the Commission would consist of three persons, one appointed by the Government, one by the opposition, with the chairperson to be an independent person from outside. The Government nominated Tomasi Rayalu Vakatora, a former senior public servant, senator, minister, speaker of the house, the Opposition nominated me, an academic specialist on Fiji history and politics, and both sides agreed on Sir Paul Reeves, former Anglican Archbisoph and Governor General of New Zealand, as chair. The three commissioners received their commission on 15 March 1995 and the two legal counsel assisting them ( Alison Quentin-Baxter and Jon Apted) on 19 May. The Commission commenced its work in early June. 2 See my "Chiefs and Indians: Elections and Politics in Contemporary Fiji," in The Contemporary Pacific: A Journal of Island Affairs, 5:2 (Fall 1993), 275-301, and "Rabuka's Republic: The Fiji Snap Elections of 1994," in Pacific Studies, 18:1 (Mar. 1995), 47-77. 3 The Terms of Reference, themselves an historic achievement of consensus and compromise, considering the bitterness and hostility generated by the coups, required the Commission to recommend constitutional arrangements which would meet the present and future needs of the people of Fiji, and promote racial harmony, national unity and the economic and social advancement of all communities. Those arrangements had to guarantee full protection and promotion of the rights, interests and concerns of the indigenous Fijian and Rotuman people, have full regard for the rights, interests and concerns of all ethnic groups in Fiji, and take into account internationally recognised principles and standards of individual and group rights. In accomplishing this task, the Commission was expected to have scrutinised the Constitution, facilitated the widest possible debate on the terms of the constitution and, after ascertaining the views of the people, suggest how the provisions of the 1990 constitution could be improved upon to meet the needs of Fiji as a multi-ethnic and multicultural society. The Terms of Reference were wide ranging, prompting some critics to wonder what they actually meant and whether they could be reconciled into a workable formula. These thoughts also crossed the Commission's mind, which devoted a great deal of time early on to analysing the text as well as the implications of the Terms of Reference.3 Unlike previous commissions of enquiry, such as the Street Commission of 1975 and others set up in the immediate aftermath of the coups,4 the Reeves Commission, as it came to be known, was required to review the whole constitution, not only the provisions relating to the electoral system and the composition of parliament. The review, then, was to be a fundamental, wide ranging exercise, covering, besides the two critical areas just mentioned, the functioning of parliament, the relationship between the executive and the legislative branches, institutions of government and the mechanism for improving accountability and transparency in them, the administration of justice, citizenship, ethnic and social justice issues, rights of communities and groups, the operation of local government bodies, public revenue and expenditure, emergency powers, and Bill of Rights, among others. To accomplish the task, the Commission took an early decision regarding the modus operandi of its work: as far as possible, the process of consultation would be open, transparent and inclusive. To ascertain the view of the people, and thus fulfilling one of the requirements of the Terms of Reference, the Commission decided to hold public hearings throughout the country to receive submissions. That exercise, exhausting and exhaustive, lasted from July to November. More than 800 3 The Commission's interpretation is in Chapter 3 of the report. 4 The Street Commission, named after its chairman Sir Harry Street, is in Fiji Parliamentary Paper 24/1975. Post-coup commissions of enquiry were led by Sir John Falvey in 1987, and by Paul Manueli in 1990. 4 written and oral submissions were received from individual citizens, community, religious, cultural and various interest groups, and all political parties. The overwhelming majority of the submissions were made in public, and are available to the public;5 but some individuals, for various reasons, chose to speak to the 5 Select Bibliography: Fiji Constitution Review Commission: 1996 Towards A United Future: Report of the Fiji Constitution Review Commission (Suva: Parliamentary Paper 13). Ghai, Yash 1997 ‘The recommendations on the electoral system: the contribution of the Fiji Constitution Review,’ in Brij V. Lal and Peter Larmour (eds), 147-159. Horowitz, Donald 1985 Ethnic Groups in Conflict. Berkeley: University of California Press. 1997 ‘Encouraging electoral accommodation in divided societies,’ in Lal and Larmour (eds), 21-37. Lal, Brij V. 1992 Broken Waves: A history of the
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