March 22, 2013 2:00pm by David Farrar

The draft Fiji constitution

Commodore Bainimarama has released his draft constitution for Fiji. I can’t find it online anywhere but the Government kindly sent me a copy so I have embedded it below.

The proposed constitution is actually very good in the main, and a huge improvement over the former constitution. I’ll go through what I see as the major good and not so good points of it.

Concern remains over the process. The independent constitutional panel’s report was basically sidelined and the pledge to have the draft considered by a Constituent Assembly has now been dropped also. The ends do not justify the means.

The draft constitution proposes it can only be amended by referendum. If so, then the constitution itself must be adopted by referendum, not by decree. It also should require the same vote in favour as will be needed to amend it.

The Commodore’s summary is:

it gives sovereign control to a single house in Parliament, which is represented by members elected by you;
the size of parliament shall be 45 with a four year term. The idea is to attract good quality and honest parliamentarians who will be paid accordingly and who won’t be corrupt;
it provides for not only civil and political rights, but also, for the first time in our constitutional history, it provides for a wide range of socio-economic rights. As seen through the constitutional submissions, many Fijians are concerned about their day to day living and access to better facilities and utilities. The draft Constitution has rights to housing and sanitation, reasonable access to transportation, adequate food and water and social security schemes. It also for the first time gives specific rights to persons with disabilities and to children;
it creates a secular state which will allow all Fijians to practice their own faiths;
it has proportional representation through a multi member constituency which will give enhanced opportunities for women and the youth to be in Parliament;
it gives more independence to the Judiciary, to control their own budget and finances as approved by Parliament. FICAC and the DPP’s office shall control their own affairs;
it creates a Human Rights and Anti-Discrimination Commission to give protection to all citizens irrespective of their backgrounds or socio-economic status;
it creates a truly independent electoral commission with appropriate powers; and
for the first time in our history, it gives you the right to change the constitution once implemented via a referendum;

As I said, overall it looks to be be very good, and worth adopting. But there area areas of potential improvement. My key take from it is:

Explicitly rules unconstitutional any future coups, or immunities for future illegal actions. A valiant attempt to stop the coup culture. Of course those with guns can ignore laws, as we have seen, unless soldiers are trained to arrest any commanding officer who gives an illegal order.
Clearly defines Fiji as a secular state with freedom of religion, and that religious beliefs are subservient the the constitution and laws. Excellent.
All citizens are equal, regardless of racial background.
A comprehensive bill of rights. Of course having the Commodore back state officials who torture prisoners makes you wonder about the will to enforce this.
The freedom of speech section has a long list of limitations which could in fact lead to fairly restricted speech. Will depend on how independent the Judiciary is.
A 45 MP proportional representation Parliament, with four multi-member electorates.
No hereditary upper house
A four year fixed term unless two thirds of Parliament vote for an early election.
There is an Independent Electoral Commission but four members are appointed by PM and one by the Opposition Leader. Would be far better for all to be consensual appointments.
A neutral President appointed by Parliament. Ceremonial powers only. Would be better to require President to have a super-majority so backed by Govt and Oppn.
PM, not President, is Commander-in-Chief of Military.
An independent Judiciary
The PM appoints the Commander of the Republic of Fiji Military Forces.
The role of the Republic of Fiji Military Forces is “to ensure at all times the security, defence and well-being of Fiji and all its residents”. I think that is far too wide a role, and can be used to justify the military doing almost anything they want, so long as they believe it is necessary to the “well-being” of Fiji. It is not their job to decide. Their job should be to protect Fiji from external threats.
Grants immunity to all those involved in past coups etc, and this section can never be amended or repealed.
Constitution can only be amended by a bill in Parliament that is then ratified by a three quarters majority in a referendum. Happy with that, but the adoption of the constitution MUST also be subject to a three quarters majority referendum to be morally valid.