Tuesday, December 11, 2012

Fiji Constitution Commission Findings Leaked

A draft copy of the recommendations of Fiji's Constitution Commission has been leaked.
The document is to be officially handed to the President, Ratu Epeli Nailatikau some time before Christmas. But copies of the document are now available on several blog sites.(first revealed on this Blog)

Dr Brij Lal, an academic who co-authored Fiji's 1997 constitution, has seen the recommendations, and he says although he has some issues with some of them, the general approach is a good one.

Presenter: Bruce Hill
Speaker: Dr Brij Lal from the Australian National University in Canberra, who co-authored Fiji's 1997 constitution

LAL: My first reaction is that on the whole there are many good things in the document. It makes a number of significant recommendations which will take Fiji away in a new direction. There are some things which are obviously missing at the moment, and there are some recommendations which are problematic. I mean the things that I think are good in this is it's moving away from a system of racial representation, I think that's a good thing. The term of parliament has been reduced to four years, which is not necessarily a bad thing. One of the many significant differences from the 1997 constitution is that this document proposes to remove the multi-party cabinet provision that was there in that document. In other words under the old constitution any political party which had more than ten per cent of seats in parliament was constitutionally entitled to be invited to serve in Cabinet. Here that provision is removed on the understanding I think that power sharing will be done through the electoral system. And the second major difference of course is the electoral provisions of the consultation document. In the 1997 constitution you had the alternative vote system that's in Australia. What they're proposing here is a closed list system where the country will be divided into four electoral districts; north, south, east, west, and elections will be held accordingly from a list that political parties presents to the electorate.

HILL: Doesn't that give a lot of power to party leaders though to choose who's going to be on that list? That assumes that the party system in Fiji is really well developed, and I don't know that that's the case?

LAL: I think this is one of the difficulties of this, that this indeed gives too much power to party elite, party leaders, and in a sense the voter is in some sense put at a disadvantage because you won't have a single constituency member to whom you could go to have your grievances readdressed and so on. The one that is I think a bit problematic, at least on the surface, is the provision for electing the President. Now the President will in this document have the same kind of nominal role that a head of a state has in the conventional Westminster system. But as I read the document, the President will be elected by an assembly of Fiji, which will include the president, prime minister and worthies from about 100 or so organisations in the country, NGOs and so on. On paper it looks good but I think that it's problematic in the sense that it sets up a rival centre of power if you will.

HILL: Well as you say this is a draft sort of recommendations, what actually happens to these recommendations? Are they going to get through completely unchanged, or will this new constituent assembly, which is being selected by the interim Prime Minister Frank Bainimarama, possibly change it before it becomes law?

LAL: Absolutely, this is what the constituent assembly will do. They'll look at the draft constitution, deliberate on it to see if it's consistent with the so-called negotiable principles. But the other thing that's really important to bear in mind is there are two or three very, very contentious issues which are not mentioned in this document at all. One is the role of the Fiji military forces, what role will they have in the future, will they revert to the barracks or will they have a more visible role in this new constitutional dispensation. The other contentious issues of course is the whole issue of immunity.

Dictator Bainimarama running scared from prosecution

HILL: Why would you ask for immunity for something, if you thought you did the right thing, why would you want to make sure that you were never prosecuted for it if you were confident your actions were right?

LAL: There is this danger there and the realisation that the coup was in fact illegal. To safeguard their interests, to save their skins, they want to make absolutely sure that constitutionally and legally they are protected. I mean of course they have the force of arms on their side, but they also want the protection from the law.

HILL: So once they actually no longer have the force of arms and the threat of violence on their side, they want to make sure that a future democratic government doesn't immediately turn around, put them on trial for staging the coup and put them in prison?
LAL: Absolutely, absolutely.

HILL: Is that sort of immunity thing binding on a future government?

HILL: If these draft recommendations were to become the basis for the next constitution for Fiji, would this in the eyes of the international community return Fiji to democracy?

LAL: Well that's a very, very difficult question because you see I've no doubt, I've got no doubt in my mind that the draft constitution will be a good one because of people like Professor Gai who has wide international experience and he has a reputation to safeguard. But how the document is then translated into a constitution, how best to ratify, what if the provisions of the draft are significantly altered to accommodate the demands of the military? These are questions that we would have to address at a later date. I think it is now really, the ball is in the court of Fijian citizens.


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