Constitutional Development And Related Issues In Fiji: A Critical Analysis

From the very beginning, making Constitution has been declared as an important way of transition

Question:

Discuss about the Constitutional Issue and Development.

From the very beginning, making Constitution has been declared as an important way of transition[1]. Over the years, states have undergone transformation from authoritarian regime to democratic regime with an intention to give rise to a new democratic constitution. In this regard, it is noteworthy to mention here that as a result of transition from an authoritarian regime to democracy, it formulated a new social relationship between the governors and the governed[2]. It is worth noting that in transitioning societies like Fiji, constitutional development can be complex as various processes are associated with it in relation to different state actors consulting with each other before reaching a final settlement. However, the measures adopted by the Constitution of Fiji may vary with the principles of Constitution of other countries. This is because; most of the countries modifies the constitution which exists while other countries repeal the existing constitution and thereby initiates the drafting of a new body[3]. As a result of various processes involved in democratization and amendments much emphasis is laid on the rights and interests of general public.

Constitutional development in Fiji can be referred to as the making of constitution into democracy. Modern scholars opined that the ideas involved in constitutional development are based on the idea that democratic constitutions could only be adopted through the process of democratization. Similarly, in case of constitutional issue arising out of internal and external forces the process of democratization can be taken into account. In this regard, various authors have shared their opinions regarding the development of political and social relationships between different countries and communities in the process of constitutional development. It is worth mentioning that in spite of efficient constitutional development in Fiji, it faced various constitutional crises from the beginning of 1977[4]. Authors were of the view that the process involved in constitutional development could address the existing constitutional issues[5]. Therefore, the purpose of the essay is to critically analyze the process of constitutional development and the related constitutional issues in Fiji.

In order to critically analyze the constitutional development and issue it is important to emphasize on the constitutional history in Fiji. After its independence from Britain in 1970, the constitution of Fiji was scattered with periods in relation to the interim rule of the government and the military[6]. However, the Constitution which came into operation in 1970 negotiated the terms with the British. Scholars were of the view that the Constitution of Fiji was formed resulting from the process of decolonization undertaken by the British Constitution for the purpose of making independent colonies. In the beginning of 1960, he people of Fiji had greater roles in the administrative system[7]. However, after the constitutional conference which was held in 1965 in London, created a right on the people of Fiji to take control of the government activities of their own. In this regard, the deed of cessation came into effect, which guaranteed rights related to land for the purpose of constitutional protection in Fiji. However, there existed inequality in the voting system. Voters were recognized according to the ethnic groups in which they belonged. However, the Constitution vested powers on the politicians in Fiji as long as they maintained active partnership with the general voters. Therefore, as a result of such condition the voting system in Fiji remain unified. The procedure of appointment into Senate was totally based on the condition that the individuals belonging to their ethnic groups would be guaranteed majority rights in voting. With the establishment of parliamentary system in Fiji, the Governor-General was represented as the Head of the State.

Democratization and Amendments

It can be observed that the first constitutional crisis faced by Fiji was during the early 1977 when the National Federation Party was dominated by the Indo-Fijians. The Governor of ethnic Fijian groups, Governor General Cakobau negotiated with the Mara’s Fijian Alliance for the purpose of forming a caretaker government[8]. However, splits within the Nation Federation Party were observed and as a result of it the leaders of the party hesitated to take control of the office. In this process, the Mara’s Alliance Party won the election and therefore took the government under its control. The second constitutional crisis took place during 1987 when the ethnic Fijians got concerned about the domination of the governmental activities by the Indo-Fijians. In 1987, two coups were initiated by Lieutenant Colonel Sitiveni Rabuka. In the first coup, the government led by Timoci Bavadra was disposed. In the same year, the second coup of Fiji replaced Queen Elizabeth II as the Head of the State. Therefore, as a result of this, the constitution changed its identification from the Dominion to the Republic of Fiji. However, the military action created ethnic discrimination and due to this reason the Indo-Fijians were oppressed under the existing government. In 1990, a new Constitution was formulated for the purpose of strengthening the control of ethnic Fijian groups within the country. According to the perspective of contemporary authors, the formulation of a new Constitution was encouraged for the purpose of establishing the position of the ethnic Fijians in administrative functions[9]. Therefore, during that time, 37 of the parliamentary seats were occupied by the Fijians belonging to the ethnic group. All forms of non-racial voting were abolished by the new constitution.

The Constitutional Reviewed Commission was established in 1995 which resulted into the third and present Constitution of Fiji, the 1997 Constitution. In the perspective of modern scholars, the representation of ethnic population has been balanced under the government of Fiji. Authors were of the perspective that the Constitution of Fiji regained a new shape during the election of the first Indo-Fijian Prime Minister Mahendra Chaudhry. This time another coup was experienced by the people of Fiji under Prime Minister Mahendra Chaudhry. However, rebel broke down on 2002 and the ministers were held in hostage for a considerable period. In this regard, the coup was denounced by President Mara however; the government was dismissed. The prevailing condition was declared as a state of emergency by President Mara and therefore took the executive under his control. However, he left the office on May 29, 2000 and hence questions were raised regarding the fact that whether he was disposed or he resigned. The military forces governed by Bainimarama hold control of the existing Constitution with the implementation of an interim government presided by Laisenia Qarase. However, the nature of such Constitution was dominated by the population of ethnic Fijians. Modern authors argued that at the beginning of 2001, no majority were observed in electoral selections and due to this reason Laisenia Qarase has been appointed as the Prime Minister. As a result of it, the government led by Laisenia Qarase was declared to be unconstitutional in 2003 by the Supreme Court.

Constitutional History in Fiji

In the beginning of 2013, new constitutional developments and challenges took place in Fiji with the adoption of a new Constitutional framework. With the emergence of new Constitution, it marked the end to the two year long controversial constitutional implementation process[10]. In the perspective of modern authors, the new Constitution proved to be beneficial for the government in addressing to the existing political instability and issues in Fiji. According to modern scholars, the constitutional framework of Fiji consists of a vicious pattern of election system with the involvement of an inefficient government. However, previously various attempts were made by the government of Fiji in releasing a drafted Constitution. The draft Constitution was released in March 2013 in order to gather public response in relation to such draft. After receiving public opinion and by considering the same, the Constitution of 2013 was given legal assent by the President. Authors rightly stated that as a result of the emergence of the new Constitution, it promoted and at the same time contributed to the strengthening of the existing communal lands. The new Constitution of 2013, protected the rights of the indigenous community, promoted the creation of a single constituency and thereby established the Parliamentary system[11].

It was argued by different authors regarding the fact that the Constitution of 2013 gained recognition while addressing some of the major challenges of the past. The division of ethnic population in Fiji was briefly addressed by the new Constitution of 2013. It was stated by modern autocrats that the new Constitution entrusted the right to vote on all the individuals in Fiji[12]. According to the Constitution of 2013, each and every voter has the right to equal vote and every vote shall be given equal value. However, these votes need to be casted for the electoral purposes of political parties and other independent candidates who occupy equal position in the Parliament, based upon the proportion of the casted votes rather than ethnical discrimination. In addition to this, scholars emphasized on the fact that from the very beginning, the Constitution of 2013 has not imposed any restrictions on individuals who wish to hold position in political field in relation to their ethnical identification. Contemporary authors were of the view that in spite of various advantages initiated by the 2013 Constitution, it continues to face criticism from the part of the general public. The 2013 Constitution of Fiji granted immunity to the officials of the government which includes the involvement of the government officials, the legislature, the executive and the judiciary. In this regard, the critics were of the opinion that with the development of a single and national constitutional framework could favor the interests of the existing political parties to a large extent. In their perspective, the nature of the newly formed Constitution may allow the laws passed by the present government to remain in force for a long time.

From the viewpoint of contemporary authors, throughout the constitutional history of Fiji, the existence of racial awareness played significant role. Recently, it was observed that about hundred people gathered in order to protest against the military government for the formulation of a new constitution. As a result of such gathering, it forced the former politicians associated with the United Front to write a letter to the President in relation to their opposition to the proposed constitution. It is worth noting that in the history of constitutional development in Fiji, this is not the first constitutional proposal for development that has been proposed by the government. A first consultative process was initiated by the government in the early 2012 which promoted the appointment of five commissioners. These commissioners comprised of international constitutional legal experts, local politicians of former political parties and the representatives of local civil society[13]. It is important to note that various existing political parties in Fiji opposed to such constitutional development. In the perspective of modern authors, the commissioners initiated the development of a new constitutional dimension in order to provide recognition to the indigenous communities of Fiji. The indigenous communities existing in Fiji provided active support and few others participated towards the contribution[14]. The end result was satisfactory, as the new constitutional document produced by the Commissioners was accepted by the right and left political parties of Fiji. According to modern scholars, with the development of new constitutional dimension in Fiji, the indigenous population got a new recognition. Their interests are now protected and they have equal rights towards the political and social development in Fiji.

Constitutional Crises Faced By Fiji

However, the military government was only concerned about the existing provisions which considerably reduced the powers of the armed forces to a large extent. Due to this reason, the leaders of military forces were held liable for the purported human rights abuses which arose since the beginning of 2006[15]. A series of debates took place later in 2012 between various political parties regarding the contents of the proposed constitutional document. It was stated by contemporary authors that the responses of the military forces in relation to such document has purely authoritative and therefore seized the proofs of such constitutional document from the government and burned the existing copies. However, in the early 2013, a new constitutional document has been drafted by the military government which is purely based on the contents of the draft formulated by the Commission in 2012[16]. In the perspective of modern autocrats, in spite of making considerable effort towards the achievement of a new constitutional reform, the government of Fiji laid much emphasis on the transition towards democratization. Modern authors were of the views that the provisions related to the rights of indigenous groups and the active participation of women in politics were largely ignored by the government. These gave rise to a constitutional crisis during that period. With the introduction of Bill of Rights, the rights of both indigenous groups and women were included however; certain limitations were imposed to these rights[17]. According to modern authors, the most important matter of concern regarding such Bill of Rights is that it gave the Prime Minister the right to govern the armed forces of the country and it entrusted on the Authority-General with the authority to undertake judicial appointments.

In this regard, it is worth stating that the new constitution of Fiji was introduced in 2013 for the purpose of restoring democracy within the country. The Bill of Rights was introduced in 2013 by the new Constitution of Fiji in order to protect the rights of both women and other existing groups which are contained between Articles 6 to 45[18]. The major constitutional issue that has been noticed till date is that in spite of various efforts to give equal recognition to the indigenous population, the new constitution failed to address the limitations imposed on the rights to freedom of association, freedom of expression and the independent appointment of the judiciary[19]. In the opinion of contemporary leaders, with the reshaping of the Constitution of Fiji in 2013, it created opportunities for former political leaders to make a comeback with the restoration of old alignments.

The constitutional development and issue existing in Fiji can be compared with the principles of constitution. Constitutional law governs the powers and functions of the state institutions and governs the relationship between the individuals and the state. According to the opinion of various authors, the subject matter of Constitutional law efficiently governs both the interpretation and the implementation of the Constitution of a particular country[20]. However, authors emphasized that as a result of constitutional issues, disruption can be observed in the relation patterns which exists between the federal and the state government. In some cases, the power of judicial review is challenged due to the nature of the existing constitutional issue. Modern scholars emphasized that the subject-matter of constitutional law is broad and complex and is often difficult to deal with. In the perspective of various constitutional scholars, from the very beginning the intention of the framers of the Constitution was to implement the drafting of a legal document for the purpose of re-shaping the society in a new way. However, according to the opinion of contemporary scholars, the provisions of the Constitution should be constructed in such a way so that it could be applicable to matters involving literal and strict constitutionalism[21].

Present Constitution of Fiji

Modern autocrats were of the view that it is important to understand the judicial branch of government while referring to the application of constitutional law in the formation of a new Constitution. However, in-depth understanding of the judiciary leads to the constitutional challenges because at this stage, the role of judicial review is challenged depending upon the grounds of constitutional crisis. In this regard, the concept of judicial review has been emphasized by modern scholars by stating the ability of the Court to challenge the nature of unconstitutionality on the part of the federal and state laws[22]. This is due to the reason that the decision of the Court is considered to be binding upon the two branches of the government- the legislative and the executive. If it comes to the knowledge of the Court that the provisions implemented by the Constitution is unconstitutional in nature then the Court is at the authority to repeal such laws and declare them to be void. In Marbury v. Madison[23]it was held that the Court is at the authority to declare the action taken by the administrative body to be unconstitutional and void, if such act is inconsistent with the Constitution of that country. It is worth mentioning that under the Constitution of 2013 in Fiji, the Supreme Court was established which was considered as the Court of superior authority. However, the Constitution has not established courts which are subordinate to the Supreme Court which includes- the Court of Magistrate, Island Courts and Local Courts.

Modern scholars stated that one of the vital document which is utmost significant to the subject-matter of constitutional law is the Bill of Rights[24]. In the initial stage, the Bill of Rights was formulated to address to the inequalities faced by the Federal government. In this regard, the present constitutional status of Fiji can be referred. According to scholars, with the introduction of Bill of Rights in Fiji, it helped to create equal rights between the individuals in relation to various ethnic groups[25]. However, in recent era various amendments were made to emphasize on the rights of women and other vulnerable groups.

In the conclusion it can be stated that, the Constitution was formulated in reference to the Ghai Constitution which was based on the principle of one individual and one vote. The Prime Minister was appointed as the Commander-in-Chief of the military. The indigenous Fijian population is protected by the new constitution. The Ghai constitution contained certain provisions related to the arrangements before an electoral procedure. However, the new constitutional draft implemented by the Fiji government contained no such provisions. The new Constitution in Fiji was therefore introduced with an intention to pave the way for a new Parliamentary government. Therefore, it can be finally concluded that with the development of new Constitution in Fiji, it efficiently addressed the issues which were in existent for a long time.

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