Author: Scott MacWilliam
While much attention focuses on the legal principles involved in the 2008 High Court decision in Fiji, less public notice is directed at the 1997 Constitution and some of the laws which have flowed from this document. Lawyers in particular have a long history of regarding upholding the rule of law as an almost sacred principle, regardless of whether a law or Constitution is meritorious by other principles, such as whether the law is just or the Constitution democratic.
Nor are those who defend the rule of law always aware that for others, legalism can form the basis for a political strategy in support of unjust and/or undemocratic laws. This strategy is currently being pressed by the former government and its supporters, in Fiji and overseas. People who are anxious to resolve the current impasse in Fiji need to be wary of lending support to a Constitution and associated laws which do not form the basis for a just or democratic settlement.
In the case of the 1997 Fiji Constitution, there is sound reason for arguing that it is undemocratic and that the laws which follow from the Constitution should be subject to more scrutiny and less respect than it and they are sometimes given. The outcome of the Constitution-making process, whatever the intentions of the people who formulated the initial document, is a decidedly undemocratic framework for a modern society such as Fiji.
The basis of this conclusion rests on the following points:
a) Contrary to claims that the Constitution received widespread popular support in Fiji before being adopted, it did not. Little more than ruling elite opinion was ever sought by the Constitution drafters and the final document was a compromise among the parliamentary representatives of this elite.
b) Under the Constitution, the President is not an elected office-bearer but appointed.
c) The Great Council of Chiefs, which at best only claims to represent one part of the national population (ethnic Fijians), is not elected yet wields inordinate power, including in the appointment of the President. The widely-held view, including among many of those whom the GCC purports to represent, is that much of the membership of this body is less than august: one popular description of the GCC is `Great Council of Thieves’.
d) The Senate, or upper house of the Parliament, is not directly elected, but again appointed, consisting mainly of party loyalists chosen with little or no attempt made to gauge if they have any substantial popular support.
e) The lower House of Parliament, where the Government is formed, is elected on an electoral system which is grossly malapportioned toward the rural areas. A vote in some seats is worth many times what a vote is worth in others. That is, whether formed by an ethnic-Fijian led party or an Indo-Fijian led party, the government does not necessarily represent the views of the majority of the people as a result of holding the majority of seats from electorates which conform to anything near the one-vote one-value democratic principle. Fiji general elections are even worse in this respect than Australian Federal elections were until the 1974 reform in this country.
In short, defenders of the 1997 Constitution and laws which flow from it are arguing that a democracy which would not be acceptable to constitutionalists in Australia, New Zealand and elsewhere should be upheld in Fiji. There is more than a slight degree of hypocrisy involved when it is suggested by implication that such `thin’ democracy is good enough for Fijians.
Instead of resorting to legalism as the basis for assessing the High Court decision, a political evaluation is required. The 1997 Constitution must be democratised, to move Fiji beyond being the thinnest of thin democracies Yet neither the ousted Laisenia Qarase-led government nor one led by any other party or party coalition elected on the existing electoral boundaries can be trusted to make the necessary reforms. While the capacity for reform may not lie with the military either, for the moment they hold the most important power and must be negotiated with, not treated as pariahs. It is to be hoped that political change in Australia and New Zealand will stimulate negotiations devoid of the moralistic and patronising preaching which has characterised much of both governments’ positions so far.
How soon political advance along these lines will occur depends to a certain extent, however, on whether the lawyers and some politicians have their way and the High Court decision is appealed. If this is done, it is highly likely that the military government in Fiji will become more and more intractable. It is to be hoped that instead of listening to the devotees of the rule of law principle, that the Australian, New Zealand and other governments recognise what is the central political as well as legal dilemma. How to reform a constitution by unconstitutional, deeply political means is the task which lies in front of all the parties.