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Constitutional Reform in Fiji

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Constitutional Reform in Fiji Note Constitutional reform in Fiji C Guy Powles Associate Professor, Faculty of Law, Monash University Fiji is today governed under the made by both the Alliance Party Constitution of the Sovereign Democratic (predominantly indigenous Fijian) and the Republic of Fiji 1990, which requires in National Federation Party (Indian) at the Section 161 that the Constitution be second London conference in 1970, reviewed before the end of seven years leading to the ‘independence’ Constitution after its promulgation, that is, before 25 of Fiji 1970. July 1997. The review process began The government of the new state was formally in March 1995 when a organised in the British ‘Westminster’ Commission was appointed to undertake tradition, under which the Head of State the task and report to the President by 30 acted on the advice of a Cabinet of ministers June 1996. An extension of time for who, in turn, were appointed by the Prime submission of the report is likely. Minister, himself chosen as the person who To appreciate the significance of the commanded the support of the majority of anticipated report of the Fiji Constitution members elected to the House of Review Commission, it is helpful to glance Representatives. In the case of Fiji, the back briefly over the constitutional events Queen of England was Head of State, of the past 30 years. represented locally by a Governor-General. From 1970 until 1987, the Alliance Party Background won elections and governed Fiji under Ratu Sir Kamisese Mara as Prime Minister. An In the late 1960s, leaders of Fiji’s principal exception occurred in 1977 when the communities (i) indigenous Fijians, (ii) Alliance Party failed to gain a majority but, Indian Fijians and (iii) a grouping of as leadership of the National Federation European, Chinese and other races (called Party was allegedly uncertain, Ratu Mara ‘general voters’) were encouraged by the was appointed caretaker Prime Minister British colonial administration to agree to and parliament was dissolved, leading to the terms of a constitutional charter under new elections won by the Alliance Party. which Fiji would become independent. In 1987, a Labour–National Federation After serious disagreement at the 1965 Party coalition won the general election London conference, concessions were and the Labour Party leader, Dr Timoci 73 PACIFIC ECONOMIC BULLETIN Note Bavadra, was appointed Prime Minister. members, and, in particular, the nominees The first sitting of parliament was brought in the Senate of the Great Council of Chiefs. to a halt on 14 May by a military coup led It seems that the Alliance Party lost the by Lieutenant Colonel (later Major General) 1987 election because sufficient Sitiveni Rabuka. Dr Bavadra and his indigenous Fijians and others who were Cabinet ministers were physically removed previously Alliance Party voters decided from parliament and detained. The to support the Labour-National Federation Governor-General, Ratu Sir Penaia Ganilau, Party coalition. declared a state of emergency, dissolved parliament and appointed new ministers. The coalition won 28 seats (19 Indian, On 1 October, a second military coup 7 Fijian and 2 General) to the Alliance resulted in the abolition of the 1970 Party’s 24 seats (15 Fijian, 6 General and 3 Constitution and the declaration of Fiji as Indian). Contrary to fears expressed at the a Republic. time, control of parliament along racial lines did not shift to Indian Fijians because A new charter was eventually the Constitution preserved the balance at prepared and adopted by the Interim 22 Fijian, 22 Indian and 8 General, in the Government—the Constitution of 1990, 52-member House of Representatives. which is in force today. Initially, Ratu Penaia was President and Ratu Mara, Prime The 1990 Constitution is constructed Minister. In the first election held in 1992, along the same lines as its predecessor. It Sitiveni Rabuka was successful and is within the ‘Westminster’ tradition in the appointed Prime Minister. After the death sense that the Prime Minister who appoints of Ratu Penaia, Ratu Mara was appointed the ministers in Cabinet is the member of President by the Great Council of Chiefs the House of Representatives who (acting in accordance with the new commands the support of that House. It Constitution). In further elections held in contains modifications that give rise to 1994, Sitiveni Rabuka was again returned, concern that the 1990 document goes further supported by the Soqosoqo ni Vakavulewa than the 1970 document in favouring ni Taukei (Indigenous Fijian Party). indigenous Fijians at the expense of other races: 37 of the 70 members of the House of Representatives must be Fijian and 1 The Constitutions Rotuman, while 27 must be Indian and 5 General. The 34-member Senate is It is important to note that the compromises dominated by 24 nominees of the Great reflected in the 1970 Constitution had Council of Chiefs. The President is chosen included acknowledgment that, if by that Council. The Prime Minister must indigenous Fijians chose to vote strictly be an indigenous Fijian. along racial lines, the combination of There is also a constitutional requirement communal and national electoral rolls that parliament should promote the would block Indian supremacy in the economic, social, educational, cultural and House of Representatives. Also, key traditional interests of ethnic Fijians, legislation regulating Fijian affairs and the notwithstanding any apparent conflict administration and leasing of Fijian land with the human rights guaranteed to all (such as the Agricultural Landlord and citizens in the Constitution (Section 21). Tenant Act) had been entrenched in the Such human rights are further limited in Constitution to prevent amendment without situations of emergency, or if parliament the concurrence of indigenous Fijian chooses to pass laws prohibiting group 74 Note behaviour which threatens to ‘excite and Mr Jon Apted as Legal Counsel and disaffection’ or ‘promote feelings of ill-will Mr Walter Rigamoto as Secretary. In the and hostility between races’ (as defined in course of its work, the Commission is Section 162). obliged by its mission statement to facilitate ‘the widest possible debate on the terms of The response of many indigenous the Constitution’ and ascertain ‘the variety Fijians, and the Soqosoqo ni Vakavulewa of views and opinion among Fiji citizens ni Taukei in particular, is that the 1990 on how the provisions of the Constitution Constitution does not go far enough to can be improved to meet the needs of Fiji as secure their legitimate aspirations. Others a multi-ethnic and multi-cultural society’. would retain the present Constitution in the belief that criticism of its provisions The Commission has engaged in a emanating from international and broad consultative process in Fiji. It has business quarters will eventually die been open to hear submissions from away. For their part, Indians have ordinary members of the public, in demonstrated their anxiety by continuing addition to receiving detailed written and to depart Fiji in significant numbers. oral arguments from the main political parties and many interested groups, such One may question to what extent the as the Citizens Constitutional Forum. In present and future health of Fiji’s economy, pursuit of a wider understanding of the its political institutions and its social fabric experience of other multi-racial societies, can sensibly be said to depend upon the the Commission has travelled to Malaysia, terms of the Constitution itself. One may Mauritius and South Africa. Interviews also have reservations as to whether any and discussions took place in London, proposals for significant change to the New York, Canberra and Wellington. Constitution would be likely to be adopted, Throughout, the principal parties, having regard to the impossibility of amending important parts of the document reflecting opposing points of view, have without first securing the approval of been represented before the Commission. special majorities of members of parliament The thoroughness and care with which (which was also the case with the 1970 the Commission has undertaken its task Constitution). guarantee that Fiji will benefit from a Nevertheless, the government appears searching analysis of the constitutional to have taken its constitutional obligations situation and an extensive report seriously in the appointment of the present containing principled recommendations. Review Commission and the resources The outcome of the Commission’s provided to it. research and its recommendations are awaited with heightened anticipation. The challenge faced by the members of the Fiji Constitution Review Commission to find answers for Fiji is a Commission reflection of the challenge handed to the people of Fiji on independence. It would Members of the Commission are the be unreasonable to expect a single inquiry Reverend Sir Paul Reeves, former Governor- such as this, no matter how competent, General of New Zealand, as Chairman, impartial and well-resourced, to discover with Dr Brij Lal and Mr Tomasi Vakatora solutions to some of the more fundamental as Commissioners. The Commission is difficulties inherent in a multi-racial post- assisted by Mrs Alison Quentin-Baxter colonial society such as that of Fiji. 75.
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