CHAPTER SEVEN CONSTITUTIONAL ENGINEERING AND IMPACT: THE CASE OF FIJI Jill Cottrell and Yash Ghai1 University of Hong Kong The lessons of May 2000 have been traumatic as well as salutary, but it is an open question whether we are any the wiser or that anything has been learnt. Ratu Joni Madraiwiwi, Vice-President of the Fiji Islands2 I Introduction The politics of Fiji have been closely tied to its constitutions. The ori- gins of the social, political and economic organisation of Fiji lie in the policies of Britain, the colonial power, in the late 19th century when it acquired control over the country. The centre piece of the policies was the preservation of the traditional institutions of indigenous Fijians, particularly the chieftaincy, land and customary practices. Economic development was based on foreign, principally Australian, capital, largely invested in the sugar industry, and indentured labour recruited from India. The various communities of colonial Fiji, Fijians, ‘Europeans’, Indians, Chinese and ‘part-European’, were segregated by race, which determined their entitlements, political rights and economic situation, and there was no sense of a common political community. It could not 1 The authors recently retired from with the University of Hong Kong, and Ghai remains an Honorary Professor there. He thanks the University for the Distinguished Researcher Award which has facilitated his research on constitutions and con ict. The authors provided an overview of the process for the making, and outcomes, of the 1997 constitution in an essay for United States Institute of Peace (2001, in press) and a detailed account of the process for IDEA—(2004) see http://www.idea.int/con ict/ cbp/upload/CBP-Fiji.pdf. 2 Australia-Fiji Business Forum at the Gold Coast in Queensland, Australia, Fiji Times, p. 7, 2/11/2004. Madraiwiwi is a High Chief who has always taken a very liberal approach to inter-ethnic relations; he was brie y a High Court judge but resigned. ARJOMAND_F8_158-192.indd 159 7/2/2007 5:03:22 PM 160 chapter seven even be said in Furnival’s terms that the various races met only in the market place, for the market itself was highly regulated and ascribed different roles in and differential access to the market, with indigenous Fijians embedded more in custom than market transactions. Until inde- pendence in 1970, many of these policies were based on administrative practices, but there were some laws which protected indigenous insti- tutions, land and customary practices. The independence constitution was the rst attempt to provide a constitutional basis for Fiji’s social, political and economic organisation. The constitution was basically a codi cation of the system of segregation, and thus a great portion of it was devoted to the status of the racial communities and their differing relationship to the state. A considerable portion of it was also devoted to the constitutionalisation of the social, political and economic systems of indigenous Fijians. The constitution effectively ensured their political dominance and control of the apparatus of the state. The constitution came under stress as the fundamental assumptions of the protective policies about indigenous Fijians seemed to come apart. The contradictions of the constitution—torn between the market and the insulation from it of key economic resources and social customs, and between universal franchise and racial hegemony—had surfaced in the early 1980s, when the Indian based political party won a major- ity in the House of Representatives. However, it was in 1987, when a coalition of the Indian party and a non-racial political party won the elections and formed government, that Fijians realised that the 1970 constitution could not be counted on to guarantee their political control. The response was a military coup by Sitiveni Rabuka, third ranking of\ cer in the overwhelmingly ethnic based military force. The military dominated administration replaced the independence constitution in 1990. It provided more explicitly for the political segregation of races by removing provisions aimed at a measure of political integration through common roll seats. It sought to ensure Fijian hegemony by allocating a majority of seats in the legislature to Fijians, restricting the of\ ces of the president and the prime minister to Fijians, and strengthening Fijian institutions. To meet the criticism of this patently racist constitution, the military included a provision whereby the constitution would be reviewed within seven years. After initial hesitation, other communities did contest elections and this led to some form of dialogue between their leaders and the makers of the coup. The sharp decline in the economy, the plunder of state resources by the administration and its cronies, the repression of human rights, ARJOMAND_F8_158-192.indd 160 7/2/2007 5:03:22 PM.