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Fiji: Building a constitutional and parliamentary culture

Fiji: Building a constitutional and parliamentary culture
Published 9 Oct 2014 

Fiji's return to parliamentary government, following elections deemed credible by international observers and the first meeting of the new parliament, is cause for celebration. But much remains to be done to consolidate democracy under the new constitution. Both the incoming Government and the Opposition bear particular responsibility for giving effect to the constitution in a way that maximises the opportunities it offers, notwithstanding controversy over how it was made.

First and most obviously, the institutions of parliament and cabinet, around which parliamentary government revolves, must be made to work effectively. The constitution provides a promising framework. A raft of provisions, superficially more progressive than any in Australia, position the parliament to develop as a forum that genuinely represents the people of Fiji, in which proposals for new law are publicly considered and in which government is publicly held to account.

Fiji's newly renovated parliament building, last used in 1987. (Photo by Fiji Govt.)

Significant and innovative provisions in this regard include the requirement for an open-list electoral system of proportional representation (sec 53); the prescription of the responsibilities of the Speaker, who must not be an MP and must 'act impartially, and without fear, favour, or prejudice' (sec 77); the imperative for parliamentary standing orders to provide 'sufficient time' for 'due consideration' of each bill (sec 47(2)); the obligation of ministers to provide parliament with 'full and regular reports concerning matters for which they are responsible (sec 90(4)); the obligation of parliament to facilitate public participation in its processes (sec 72); the need for a 'reasonable opportunity for public participation' before regulations are made (sec 50(2)); and the requirement for treaties to be approved by parliament (sec 51).

Building a parliamentary culture within which such provisions can take effect will require patience and commitment. Much of the responsibility for doing so lies with the Government. [fold]

It will not be easy to move from the relative simplicity of law-making by decree to law-making in the public and contested forum of parliament. The Government also will need to avoid the temptation of unnecessary recourse to any exceptional procedures the constitution provides: to enact legislation quickly without due deliberation through sec 47(3), for example.

The responsibility does not lie with the Government alone, however. All MPs, including, crucially, the Opposition, have roles to play in this regard. Drawing on the logic of the constitution and the opportunities it provides, they must hold the Government to account on points that matter, acting in the public interest. Ultimately, the Opposition must present itself as a credible alternative government, worthy of majority support at a subsequent election.

The challenge of constitutional implementation extends beyond the performance of elected institutions to the rest of the constitution. Often, one of the first tasks following the introduction of a new constitution is the creation of all the other institutions for which the constitution provides. To some extent, this is necessary in Fiji as well. The Accountability and Transparency Commission (sec 121) and the Constitutional Offices Commission (sec 132) are important examples. For the most part, however, the institutions of government for which the constitution provides are already in place in Fiji. Some are long-standing: the public service; the courts; the Fiji police force; the military forces. Others owe their existence to more recent decrees. The Independent Legal Services Commission (sec 114), Human Rights and Anti-Discrimination Commission (sec 45) and the Director of Public Prosecutions (sec 117) are examples.

Most public institutions in Fiji have become used to working in conditions of military government, without constitutional constraints. They must now adapt themselves to a democratic environment in which public accountability is expected and in which they must comply with both the letter and the spirit of the new constitution.

There is an opportunity to set the course of any new constitution at an early stage through judicial interpretation of constitutional provisions. The primary responsibility here lies with judges and the legal profession, although the Government has a role to play as well, through its stance as a litigant and the grace with which it receives adverse decisions.

Interpretation is likely to be particularly important in relation to the Bill of Rights. The Bill of Rights has been the subject of some criticism because of the limitations it apparently allows in the interests of, for example, preservation of 'public order' or 'public morality'. But the Bill of Rights has considerable strengths as well, which can be maximised through constitutional interpretation as well as political practice. Those worthy of particular mention include the broad application of the Bill of Rights to all organs of government including the courts themselves and, potentially, to the private sector; the extraterritorial operation of the Bill of Rights; the obligation of courts to develop common law consistent with the Bill of Rights; the express provision of a right to 'executive and administrative justice'; the commitment to equal citizenship; and a range of social and economic rights to, for example, education, economic participation and adequate food and water. Through strategic litigation and argument over time, the limits of the Bill of Rights may prove less significant than at first sight.

Fiji's constitution is ambitious and there is a considerable legacy of bitterness and suspicion to overcome. The first few years following the return to parliamentary government will be critical in setting the constitution on a positive course.

Photo by Flickr user Jared Wiltshire.

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