Fiji In transition: Towards a Susutainable Constitutional Democracy

Patira, Elly and Kirkby, Coel and Mishra-Vakaoti , Vanisha and Vakaoti, Patrick and Kant, Romitesh (2014) Fiji In transition: Towards a Susutainable Constitutional Democracy. In: Fiji in Transition: Towards a Sustainable Constitutional Democracy. Citizens' Constitutional Forum , Suva, pp. 105-146. ISBN 342.9611023

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Abstract

At the time of writing, Fiji has just seen its first elections, and the first sitting of Parliament under its newly introduced constitution of the Republic of Fiji 2013 (the 2013 Constitution). The Citizens’ Constitutional Forum (CCF) shares in the excitement felt by many Fijians about this new and exciting chapter. This publication attempts to join in that excitement and hope for the future, while recognizing that there is significant work yet to be done in order to enshrine a sustainable constitutional democracy for Fiji. CCF has worked in the area of constitutional strengthening and debate for more than 15 years. We hope that the substantive analysis of the 2013 Constitution presented here will contribute to a vibrant national discussion on constitutional issues fundamental to Fiji’s transition to sustainable constitutional democracy. CCF intends this book to help kindle an informed, open and progressive national debate on the extent of constitutional dilemmas facing the country. It is directed at moving Fiji towards a stable democracy that avoids the divisions and mistrust that have hindered past transitions. The publication begins by presenting three discussion papers that provide substantive analysis on technical constitutional issues. First, on the Transitional Process, sets the scene for the volume by describing international and comparative best practice regarding transitional arrangements for nations attempting to emerge from military-backed rule. While Fiji has its unique historical, cultural, socio-economic and political context, there are common issues of central concern for countries shifting from a military-backed government to civilian rule. This paper assesses the transitional provisions set out in the 2013 Constitution against these international and comparative best practices. It concludes by presenting suggestions for ways in which the 2013 Constitution can better support a successful transition back to civilian rule. The second paper tackles the constitutional issues surrounding the doctrine of Separation of Powers. It highlights the fact that in countries emerging from highly centralized military rule, appropriate checks and balances on the executive power, including strong oversight powers in the legislature and an independent judiciary, are essential to implement the will of the people. In the absence of adequate checks and balances and the concentration of power in the hands of a few, nations emerging from military-backed rule risk becoming illiberal democracies – that is, governing systems in which elections provide nothing more than a democratic façade to dictatorial government. Such systems are particularly vulnerable to future coups. In light of this danger, the paper highlights the importance of taking steps to amend the 2013 Constitution in order to strengthen Fiji’s democratic process and end the engrained coup culture. The third Discussion Paper explores the 2013 Constitution’s Bill of Rights. The paper emphasizes that during a period of transition, such as Fiji’s, a strong Bill of Rights is essential to protect a nation’s citizens. Rights of expression and association, rights of persons to participate in political and civil life, rights necessary to ensure that the state does not harm individuals, rights essential to the rule of law, rights to promote an open and democratic society and rights to prevent governmental intrusion on an individual’s private life are all critical to any successful transition to civilian rule. Equally so is the enumeration of limitations on those rights that accord with international best practice and standards. For this reason, this paper explores the troubling omissions and limitations to be found in the 2013 Constitution’s Bill of Rights as well as the provisions that essentially undermine the Constitution’s rights and protections altogether. Key actions for the new Parliament and civil society to rectify this situation are suggested. The publication then shifts focus from the technical issues found in the 2013 Constitution, to an exploration of how the Fijian public understand the 2013 Constitution in the Constitutional Perceptions Survey. According to international and comparative best practice, constitutional reform should adhere to fundamental international principles of inclusivity, participation, transparency, consensus and national ownership. This helps to legitimize the constitution-making process and the resulting constitution in the eyes of the public, thereby reducing the risk of instability during the transitional process. The Constitutional Perceptions Survey attempts to explore and document a small portion of Fijian citizens’ thoughts, feelings and opinions about the Constitution and to gauge their sense of ownership over the document. While the results of the Perception Survey are mixed, many participants felt that they would have been more satisfied with the 2013 Constitution if its development had been more consultative and transparent, so that its contents could be seen as reflective of citizen’s wishes. The Perception Survey concludes by presenting some recommendations based on the participants’ comments for how to encourage Fijian citizens to take ownership and pride in their supreme law. The publication concludes with a Monitoring Report, which attempts to document the key events in the implementation of the 2013 Constitution over the year between its promulgation in September 2013 and the September 2014 elections. According to international and comparative best practice, an environment most conducive to democratization is achieved in a transition where the military-backed government hands over to a caretaker government for a reasonable period before elections are held. !is helps to make sure that the incumbent military-backed government does not gain an unfair advantage over any opponents, given their power to arbitrarily control events in the lead up to elections. Given that no such provisions were put in place for Fiji’s transition, it was important to monitor and document the implementation of the transitional requirements of the 2013 Constitution itself. !e Monitoring Report outlines these events, reviews the implementation status of the 2013 Constitution, the challenges that implementation has faced so far and the prospects for timely and comprehensive implementation in the future.

Item Type:	Book Chapter
Subjects:	H Social Sciences > HT Communities. Classes. Races J Political Science > JF Political institutions (General) K Law > K Law (General)
Divisions:	Faculty of Business and Economics (FBE) > School of Government, Development and International Affairs
Depositing User:	Romitesh Kant
Date Deposited:	03 Oct 2016 01:20
Last Modified:	03 Oct 2016 01:20
URI:	http://repository.usp.ac.fj/id/eprint/7760

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