Why the Fiji regime rejected the draft constitution

Professor Wadan Narsey is an Adjunct Professor at The Cairns Institute.

As Jenny Hayward-Jones described last Friday, the Fiji regime's promise of a transparent and accountable 'roadmap' to parliamentary elections in 2014, following the writing of a new constitution to be approved by a 'Constituent Assembly', is now sounding quite hollow.

The constitutional review went as decreed. The regime appointed all the members of the Yash Ghai Commission which, after wide public consultations, produced a draft constitution that we all thought would be what the regime ordered. It abided by all the conditions stated in the regime's decrees: immunity for those supporting unlawful governments from 2000 to 2014, an electoral system for parliament where each person's vote was of equal value, and a clear enunciation of human rights.

But the draft constitution has now been rejected by the regime on dubious grounds. The military regime will now modify the draft before it goes to the Constituent Assembly.

President Nailatikau put forward a number of arguments in rejecting the draft constitution, nearly all without substance. The most serious was the allegation that 'it is an anathema to democratic representation that the Ghai Draft allows for, at the very least, a 144 member body of unelected people (the People's Assembly) deciding on key issues pertaining to the people of Fiji.' [fold]

Yet the People's Assembly, despite its extremely wide composition, would not have any real legislative or governmental powers; these would reside with the democratically elected parliament. The only real power the People's Assembly would have is the election of the president. This aspect could easily have been changed by the Constituent Assembly, should it have seen fit.

What may have been far more worrying for the military regime is that the draft constitution did not grant immunity for human rights abuses, it required the relinquishing of authority by the military regime in the lead-up to the 2014 elections, and an obvious end to the tenure of the current president.

Also a sore point with the regime may be that the draft constitution's 'Schedule 6 — Transition Arrangements' stated in clause 24 that:

Any proceedings before any court, tribunal or commission that had arisen under any law and that had been terminated by order at any time before the General Effective Date, are revived and may be proceeded with under this Constitution...

This would have restored the basic right to go to court with just grievances, no doubt of relevance to Fiji National Provident Fund pensioners (whose case before the courts was terminated by a decree) and also international owners of investments at Natadola and Momi, appropriated by decree to the Fiji National Provident Fund. While the international community would see this recommendation as helping to restore investor confidence in Fiji, the president's speech fatuously claimed that 'the Ghai Draft can lead to financial and economic catastrophe and ruin'.

The international community must also view with dismay the president making a number of clearly hollow allegations, such as that the regime's own Constitutional Commission was being influenced by foreign donors and local political groups.

What can the international community do?

When it comes to Fiji, the media focus is usually on what Australia and New Zealand think (here's Bob Carr's statement on the Fiji regime's reaction to the draft constitution). Most commentators ignore China and India, whose support to Fiji's military regime after the 2006 coup has undermined the diplomatic stances and sanctions of Australia, New Zealand and the EU. Australia and New Zealand, with the support of the US and EU, urgently need to engage with China and India on achieving a common position on Fiji. More on that in a follow-up post.

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