The new Government Draft Constitution [GDC] is an ambiguous document—at times continuing the traditions of the 1997 Constitution [1997] and 2012 draft of the Constitution Commission [2012], while at others making major departures from the past. The GDC clearly satisfies many of the ‘non-negotiable principles’ that the Government established as the basis for the constitution-making process [decrees 57/2012, 58/2012].
A secular state is defined as a founding principle in the GDC (see s.4). The electoral system provides for a version of ‘one person, one vote, one value’ based on proportional representation for all Fijians 18 years and older and does away with communal seats. The Bill of Rights includes many rights—including non-discrimination—previously provided in 1997 and 2012, as well as some new social and economic rights. Corruption is tackled in various ways by measures like entrenching the Fiji Independent Commission against Corruption.
Despite all these achievements in meeting the non-negotiable principles and values, the GDC falls short in at least four important ways. Hopefully the analysis below will contribute to efforts that the government will make to revise the GDC in the coming weeks as it seeks to realize all its aspirations to ensure Fiji becomes a ‘true democracy’ founded on ‘respect for, and protection and promotion of, human rights.’
First, the GDC concentrates nearly all executive authority in the offices of the Prime Minister and Attorney-General. Together they control nearly all appointments to the judiciary and independent commissions and offices [see appendix 1], as well as senior state service and other appointments. The Prime Minister also controls the remuneration and removal of members of constitutional commissions and ‘independent’ constitutional office holders. Some crucial institutions provided for in 1997 and 2012, like the Constitutional Offices Commission and Ombudsman, have been removed entirely [see appendix 2]. There is an extreme concentration of power in the Prime Minister and Attorney-General that is unprecedented in most modern, democratic constitutions, and dangerous for Fiji.
Second, the otherwise impressive Bill of Rights comes at the expense of severe limitations on many rights. In general, a future government will no longer have to justify laws limiting rights before an independent court on the grounds that they are necessary in a free and democratic society [as in 1997 and 2012]. Instead, the government will usually only have to show that the limitation is ‘reasonable’. In some cases (especially for labour rights) the standard is even lower. This effectively undermines the real value of nearly every right under the GDC. Social and economic rights are a partial exception. It is not clear, however, why these rights are formulated as an obligation on the State to ‘progressively’ meet those goals rather than a ‘right’ of every citizen [as in 2012]. A final worry is that the Bill of Rights will depend on the existence of an independent judiciary.
Third, the GDC does not provide the necessary structural protections for the judiciary to be seen as independent. The Chief Justice and President of the Court of Appeal will effectively be political appointments. They will both be appointed* by the Prime Minister after consulting the Attorney-General and may be removed by a process controlled by the Prime Minister. This is rare in modern constitutions [and in 1997 and 2012] that seek to de-politicize judicial appointments. The Judicial Services Commission is a critical body to manage and discipline the judiciary, and so should be free from executive interference. However, the Commission in the GDC is composed of members appointed exclusively by the Prime Minister and Attorney-General. Also worrying is that the GDC [unlike in 1997 and 2012] does not allow appeals from military courts to the civilian courts.
[*An appointment power vested in the President must be exercised in accordance with advice of a specified authority. If that authority is the Prime Minister, it is that office that has the actual power of appointment. This document will refer to the office that has the actual appointment power.]
Fourth, there are very few avenues under the GDC for citizens to participate in and ensure ‘good and transparent governance’. Citizens have a right to attend parliamentary committees and to somehow participate in the making of government regulations (ss.47(2) and 71(1)(b)). However, all the 2012 provisions for public participation in government are removed. The GDC will also not include the Access to Information law included in 2012. It also did not include the 1997 requirement that Parliament pass such a law ‘as soon as practicable’.
There are also two significant omissions from the GDC involving several other important issues affecting the ‘needs of Fiji and aspirations of its people’. First, women are not mentioned once in the GDC. Indeed, there are no positive duties on the State to promote participation of women or protect their distinct needs. Second, the land and governance rights of iTaukei, Rotuman and Banaban communities are no longer protected by the constitution. For example, 23 members of Parliament can vote to repeal any law like the iTaukei Lands Act that protect these rights.
All of these areas of serious concern with the GDC, as well as some of perhaps lesser significance, emerge from the chapter-by-chapter analysis which follows. As a final note, this analysis includes recommendations and suggestions to remedy drafting errors in what was surely the rapid process required to develop the GDC in the limited time available to the government. The final section highlights some of the most evident mistakes that can be easily remedied.
