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Constitution-Making in Fiji: the Search for a Practical Solution

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Constitution-Making in Fiji: the Search for a Practical Solution 221 Constitution-making in Fiji: the search for a practical solution Isikeli Mataitoga* The author’s purpose in writing this article is to place on record the process surrounding the promulgation of a new Constitution for Fiji and the reasoning behind it. His insights were gained first hand in his position as advisor to the Governor- General. Fiji’s constitutional history from Cession to Queen Victoria in 1874 to the present is canvassed. It is the author's view that the use of a Committee to obtain the views of the population before the adoption of the 1990 Constitution was the optimal practical solution given the plural character of Fijian society. I INTRODUCTION Constitution-making in any country is always a difficult process, even in the best of times. The process is made all the more difficult when that country is characterised by a proud and demanding indigenous population on the one side, and an equally proud and successful immigrant population on the other side. As if those problems were not enough, the Military Coups of 1987, with all their associated difficulties, became the primary focal point in the Constitution-making process. It was against this tense and racially charged background that the various political administrations in Fiji since 1987 had to work to produce the new Constitution for the Republic of Fiji, which the President, Ratu Sir Penaia Ganilau, promulgated on 25 July 1990. Each of the political administrations had its own area of emphasis so far as the content of the new Constitution is concerned. The purpose of this paper is to place on record the process and the reasoning behind the same. An attempt will also be made to explain why some of the alternative methods for Constitution-making, put forward by some academic commentators, woe canvassed but not followed. An understanding of the difficulties associated with the process of Constitution­ making in Fiji since 1987 requires a brief outline of the constitutional history of Fiji and some of the relevant general background. This paper will not discuss the text of the newly promulgated Constitution; rather it seeks only to explain the rationale behind the process that produced it. Barrister & Solicitor of the High Court of New Zealand and Fiji. The views expressed in this paper are personal ones and do not represent the views of the Fiji Government or the office of the DPP. 222 (1991) 21 VUWLR II OUTLINE OF THE CONSTITUTIONAL HISTORY AND OF RELEVANT GENERAL BACKGROUND A The Instrument of Cession By an instrument of Cession dated 10 October 1874, the King of Fiji (known by the title Tui Viti and Vunivalu) together with other High Chiefs of Fiji voluntarily and unconditionally ceded to Ho* Majesty Queen Victoria possession of and full sovereignty and dominion ova* the Fiji Islands and over the inhabitants thereof. By the resolution and instruments of Cession,1 the said Tui Viti and several High Chiefs recorded that they "trust and repose fully in Her Majesty, that she will rule Fiji justly and affectionately, that we may continue to live in peace and prosperity” and further that "they are desirous of securing the promotion of civilisation and Christianity, and of increasing trade and industry within the said islands". Fiji comprises some 302 islands. The islands are grouped within Confederacies (Matanitu Vanua), and within the Confederacies under tribal High Chiefs there exists a patriarchal chiefly system.2 Before 1874, tribal jealousies and warfare had racked the population. The quality of colonial "buccaneers", many of European origin, had been very mixed and the native population had been greatly affected also by foreign diseases. Trade had increased but a short lived cotton boom ended in the early 1870s. It is against this background and with what seems like an extraordinary breadth of vision that the High Chiefs decided to place their trust in a Queen thousands of miles away from Fiji. In part, this trust may have been influenced and stimulated by the enthusiasm with which the Fijians had adopted Christianity, principally through Methodist missionaries. The fact of voluntary cession has had deep and meaningful consequences. It was cession to the English Crown personally, accepting, of course, rule though its government, but the personal nature of the act has never lost its significance. The link with the Crown for die Fijians has therefore always been quite different to any other colonial link with the Crown. The Fijians, through their Chiefs, had direct access to the Crown. Indeed, until some few years before independence in 1970, there was an annual personal message of loyalty and a report (sometimes a complaint) made direct by the Chiefs to the Monarch. The Monarch was not just a King or Queen of Fiji in the conventional colonial sense, but truly a Tui Viti or Fijian Monarch of Fiji. 1 Fiji Government Gazette, 1874, No 1,10 October 1874. 2 See RR Nayacakalou Leadership in Fiji (Oxford University Press in association with the University of the South Pacific, Melbourne, 197S) 31-52; and GK Roth "Native Administration in Fiji During the Past 75 Years” (1951) Royal Anthropological Institute Occasional Paper No 10. CONSTITUTION-MAKING IN FIJI 223 Quoted here in full is the text of one such letter personally expressing the loyalty of the Chief of Fiji to His Majesty King George V:3 The Council House Bau, Fiji, 20th November 1933 To His Majesty George the Fifth King of the United Kingdom of Great Britain and Ireland, Emperor of India and the British Dominions beyond the Seas, May it please your Majesty, We, Your Majesty's faithful subjects, are assembled in the Council of Chiefs of Fiji. 1 In the year 1930 the Council of Chiefs met at Suva, and it is a source of great satisfaction to us, your people, that the Council of Chiefs is being held this year in the great and historic town of Bau, the old capital of Fiji. 2 In 1929 and again in 1930 disaster overtook us in the form of hurricanes and floods, which destroyed many of our plantations and gardens and caused distress in some of the Provinces. Truly our sufferings were great during those years but the burden which we had to bear was greatly lightened by the constant assistance and relief that was provided by the Government to us in our time of trouble. 3 Now we are suffering from the low price of copra and of the other products from which we derive our income. Truly these things trouble us in our minds, but our courage is restored because we know that the Government is taking every step possible to find fresh markets and higher prices for our products. 4 It is a matter of the greatest satisfaction to us, your faithful subjects, that we can tell Your Majesty that the Fijian population is increasing in numbers. We realise that this is one of the fruits of the devoted work that is being carried on among us by the nurses, European and Native, engaged in the Child Welfare Campaign. The doctors, too, are co-operating fully in this great work, and our women are being taught to care for their children. 5 We, your faithful subjects, wish to express to Your Majesty our grateful appreciation of the bestowal by Your Majesty on two of us Fijians of the high distinction of a Companionship of the Imperial Service Order. We rejoice greatly at this for we thus realise that Your Majesty ever remembers your faithful Fijian people. 6 It is with deep sorrow that we have to report the deaths of Ratu Epeli Ganilau, Roko Tui Cakaudrove, Ratu Tevita Nawaqa, Tui Nadi, Ratu Taione Rosivela, Tui Ba, and Ratu Peceli Derederenalagi, Buli Naqalimare. All these were Chiefs of high repute and loyal servants of the Government They ruled their people wisely and they were all members of the Council of Chiefs. 3 Report of the Council of Chiefs - 1933, p 13. 224 (1991) 21 VUWLR 7 We are glad to have this opportunity of assuring Your Majesty, our great ruler, in all reverence and respect of our unswerving loyalty to you and your Government. 8 We humbly pray that the Almighty will lengthen Your Majesty's days and the days of Her Majesty the Queen: that Your Majesty's Royal House will be blessed and that peace and prosperity will be the lot of all who live under its benign production. We, the Members of die Committee of the Council of Chiefs selected to write this letter, humbly beg to subscribe our names. We are, Your Majesty's most humble and obedient servants PVEli ALAHANARA JRCAKOBAU ESERU MRAIBE DTOGANTVALU GEO C TUISAWAU B The Instrument of Cession -as the Fijians see it The instrument of Cession contained no article to the effect that the interests of the Fijians were to be paramount, but a voluntary and unconditional cession of sovereignty and the expressed declarations of trust in Her Majesty to undertake the government for the Fijians necessarily give rise to such an implication. Any other interpretation would defeat the main object of cession. Subsequently the Fijians have repeatedly asserted the principle. It has not been denied, but its application to changed circumstances has come into issue. Its application in a multi-racial society manifestly gives rise to difficulties. It is beyond doubt that a belief in the principle that the interests of the Fijians were, and are according to the Deed of Cession, to be paramount has been fixed in Fijian thinking for decades. It is essential to an accurate understanding of recent events in Fiji to remember the significance to Fijians of this voluntary cession of the territory and its people to the Crown.
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