PRESENTATION TO A PUBLIC DISCUSSION HOSTED BY THE USP SCHOOL OF GOVERNMENT
7 October 2015
As with my previous presentations, I will begin by placing this phase of Constitution making in Fiji in the context of global experience. More than half the Constitutions of the world have been remade over the past two decades or so and there is plenty of opportunity to examine how others have met the challenges of putting a new Constitution into effect, with varying degrees of success. The many historical and so now well-established examples include South Africa, which has been a model for the world in the approach to constitution making. There are also others, however, in which the Constitution has been put in place more recently and which therefore are going through the implementation phase at the moment. These include Kenya, Zimbabwe and Tunisia, in all of which implementation is well underway. They also include Nepal, where a new Constitution has only recently been promulgated and implementation has barely begun.
Most of my remarks will be directed to the implementation of the Constitution of Fiji. My aim is to provide a framework for analysing progress with implementation, together with some examples to illustrate the point. I will not attempt to provide an inventory of every item that requires implementation, which would make for a tedious presentation, even if I had all the necessary insights. I am in any event well aware of my own limitations in speaking to you on this subject. Those who live with a Constitution are likely to have a much better innate understanding of how implementation is going than anyone who comes in from outside.
- Constitutional implementation
In recent years, the implementation phase has begun to receive increased attention from those interested in the subject of Constitution making. The reasons for this are obvious, at least from one perspective. Modern Constitutions play a critical role in the life of any state. They provide a framework for the organs of government. They authorise new law. They structure the relationship between people and the state, identifying the rights of the former and the obligations of the latter. They may have a range of other, transformative, goals.
But a Constitution, standing alone, is no more than a text. To make any sort of difference in the life of the state and its people, it requires implementation to give it practical effect. Understood in this way, implementation is also one of several factors that underpin the legitimacy of a Constitution as the foundation for government. Other factors include the authority on which the Constitution relies, the process by which a Constitution is made and the legal continuity of a new Constitution with the old one. One or more of these factors may well be missing in any Constitution making exercise. In this case, however, implementation becomes all the more important, offering legitimacy in the form of a Constitution that works.
The Constitutions of Germany and Japan are often suggested as examples of Constitutions of this kind. In the aftermath of the Second World War, there were obvious deficits in the ways in which these Constitutions were made, under the pressures of occupation, from the standpoint of legitimacy. In practice, however, both Constitutions have provided an effective framework for peaceful, prosperous and harmonious democratic societies and have attracted broad acceptance on that basis.
The new focus on constitutional implementation in recent years has also been stimulated by the observation that some new Constitutions perform poorly, or even fail, because they are not adequately implemented. This observation suggests that, just as successful implementation can strengthen constitutional legitimacy so poor implementation can weaken it. Where implementation is a problem, possible explanations range from inadvertence on the one hand to lack of commitment, for whatever reason, on the other. It may also reflect the complexity of contemporary Constitutions, or overreach in what they seek to achieve. In an attempt to counter the problem, some new Constitutions have begun to put formal implementation procedures in place, at the time the Constitution is made. Kenya, for example, has a schedule to its Constitution listing things that need to be done within a prescribed period, and an Implementation Commission to try to ensure that this happens.
I am something of a sceptic about the utility of formal procedures of this kind. I acknowledge that they may provide a useful prompt for government action, in the wake of the introduction of a new Constitution. I suspect the Kenyan provisions have been helpful in that sense. I am sceptical, however, because it seems to me that constitutional implementation is too complex a project to be captured in a list that can be included in a constitutional appendix. There is a risk that the items on the list monopolise attention during the implementation phase, at the expense of others that may be at least as important. There is a risk that implementation is regarded as solely the business of the state, rather than also a matter of importance to the entire community.
To explain what I mean, I will build the rest of my remarks around three quite distinct dimensions of constitutional implementation, each of which is important, generally and in Fiji.
The first of these involves what I will describe as technical requirements of the Constitution: new institutions that the Constitution requires to be established; new legislation that it requires to be passed; appointments that are to be made; myriad other requirements of this kind.
The second dimension of implementation involves the interpretation of the Constitution. Sometimes this is necessary where provisions are ambiguous or conflicting. Equally, however, it will be necessary where provisions are simply general, as is often the case in a constitutional text. In any of these cases, the text of the Constitution needs to be shaped through interpretation, in a positive direction that is consistent with its goals. Often the interpreter is a Court. In some cases, however, it may be the government or the Parliament or some other responsible actor that has front-line responsibility for the administration of these provisions. And, once more, the meaning of key parts of the Constitution is an issue on which the community can usefully have a view.
The third and final dimension of implementation concerns cultural change, to ensure that the Constitution takes effect in spirit as well as in literal form. Cultural change may be particularly important where a Constitution is designed to be transformative. Any new Constitution changes previous practice in some way, however, requiring adjustment in legal and political culture and, sometimes, in the culture of society at large. Clearly this is the dimension of implementation that is the most difficult to achieve. It will not respond to regulation. It may take some time, during which it requires careful nurturing. Once it occurs, it will have lasting effect, dealing automatically with the issues with which the other dimensions of implementation are concerned.
I will move in a moment to consider each of these dimensions of implementation in relation to Fiji. First, however, I will make a few remarks about the significance and challenges of constitutional implementation in Fiji more generally.
- Constitutional implementation in Fiji
The implementation phase is important for Fiji because the Constitution itself is important. It is the vehicle designed to return Fiji to civilian and democratic government and the rule of law. Boldly, it seeks to achieve what no previous Constitution has managed here: equal political citizenship. It also attempts to overcome the legacy of successive coups, by putting in place a Constitution that will last. I will return to these matters later, in considering the cultural dimension of implementation. My only point at this stage is that the workability of the Constitution matters, because much depends on it.
Workability of a Constitution always depends on implementation. In the case of Fiji, implementation is at least as important as anywhere else. Implementation also must do much of the heavy lifting in Fiji as far as legitimacy is concerned. Legal continuity was not possible when the Constitution was made, because the institution of the Parliament was no longer in existence. The process of constitution making was contested. As in many transitions, the history of recent years also has created divisions within Fiji which the new Constitution must overcome, presenting a further challenge for implementation.
I do not want to overstate the challenges of constitutional implementation in Fiji. In some respects, the task of implementation is easier here than it has been elsewhere. For the most part, the Constitution creates institutions that already are familiar: parliamentary government, a non-executive president and generalist courts in a unitary system. Fiji does not face the difficulty currently confronting Nepal, for example, of creating and operating a federal system for the first time. On the other hand, familiarity also breeds, if not contempt, at least complacency. A new Constitution offers the opportunity for old institutions to work in new (and better) ways. This is a challenge for implementation too.
- Technical requirements
Fiji is no exception. The new Constitution of Fiji is moderately long, with a preamble, 174 sections and a schedule. It assumes the establishment of more than 20 public institutions, in addition to the core organs of Parliament, Government, President and Courts. It anticipates the enactment of implementing legislation for a range of other purposes from the positive protection of particular rights to effectuating the machinery of government. These are the kinds of matters that would be found in an implementation schedule, if there were one. It would be easy enough for the government to establish, and tick off, the list. It would be easy enough for the media, or civil society, to do so too.
For present purposes, I propose to group the issues for technical implementation in Fiji into three broad categories, to convey an idea of the issues that arise.
The first category concerns the main organs of state: Parliament, Government, President, Courts. From the standpoint of constitutional implementation, the most significant of these is the Parliament. This is the key elected institution, on which Fiji’s return to democracy is based. I will therefore focus on Parliament, although I am aware that questions of technical implementation may arise in relation to the other principal organs of the state as well.
Formally at least, many of the constitutional requirements affecting the Parliament have been met. There have been elections; a system of proportional representation was used (s. 53); pleasingly, this returned a larger proportion of women than before; there was a single register of voters (s.55 (5)); the resulting Parliament was summonsed to meet (s. 67); a Speaker was elected (s.77); Standing Orders have been published (s. 71(9)); parliamentary committees are established; and so on. Once a Parliament was elected it became possible also to appoint a government that derives its authority from the support of a majority of the Parliament, in accordance with constitutional requirements (ss 91, 92). The Constitution lays down various other procedures in association with the Parliament that also require technical implementation in the sense in which I use that term. They include the important budgetary processes set out in chapter 7, including the requirement in section 146 for public moneys to be ‘dealt with and accounted for according to law and otherwise in accordance with accounting principles generally accepted in the private sector’. They also include the equally important requirement for a ‘reasonable opportunity for public participation in the development and review’ of delegated legislation before it is made, in accordance with section 50(2). And they require a procedure for approval of treaties by Parliament, for the purposes of section 51. These examples by no means exhaust the aspirations for a participatory parliamentary democracy set out in this part of the Constitution, to which I will return.
Of course there is, or should be, more to parliamentary government than compliance with constitutional formalities, once compliance occurs. I will come to these in due course. But the constitutional formalities deserve entry on the credit side of the implementation balance sheet too. They provide the base on which other developments can build, and in the absence of which there will be no constitutional government at all.
The second category of matters for technical implementation involves the various other public bodies for which the Constitution provides. They include, for example, the Human Rights and Anti-Discrimination Commission (s. 45), the Commission against Corruption (s. 115), the Accountability and Transparency Commission (s. 121); the Constitutional Offices Commission (s. 132) and the Reserve Bank (s. 153).
The Constitution expressly requires most of these bodies to be independent. In most cases general terms of reference are set out in the Constitution. Some have criteria for appointment specified as well. Some have their resourcing constitutionally guaranteed. Implementation requires compliance with all of these matters.
There are some differences between these bodies in the manner of their establishment that are relevant to the process of implementation and deserve notice for that reason.
Some of the independent bodies for which the Constitution provides were already in existence when the Constitution came into effect, although appointments to them had not necessarily been made. In a sense, this simplifies the task of implementation, as long as bodies of this kind comply with any new constitutional rules and the appointments that are made enable them to fulfil their constitutional mandates. This category of bodies raises an additional point, however, indirectly linked to implementation. In providing for their continued existence the Constitution refers to most (although not all) of them as having been established by Decree. This drafting technique not only perpetuates the origins of important constitutional bodies in a military decree but perpetuates the concept of a military decree in the Constitution itself, contradicting its democratic purpose. One additional task for the implementation phase may be to reconstitute each of these bodies by legislation, enacted by the new Parliament. This would enable the terminology of decree to be removed from the Constitution In due course, in a tidying-up exercise, on which consensus should be possible. I will return to other aspects of the relevance of decrees to the process of implementation in a moment.
By contrast, independent institutions that did not exist at the time the Constitution came into effect are established by the Constitution itself. These also require resourcing and the appointment of members. They may also need implementing legislation. Institutions in this category are in a minority, but they exist. They include, for example, the Accountability and Transparency Commission, exercising authority, functions and responsibilities to be prescribed by a ‘written law’ that, inter alia, must give the Commission authority to investigate complaints against all persons holding public office (s.121). Under s. 121 (13), the Constitution requires the Commission to provide ‘regular updates and advice to Parliament’ on matters relating to its functions and responsibilities. Also in this category is the Constitutional Offices Commission for which section 132 provides and which also has the obligation to provide ‘regular updates and advice’ to Parliament. The Constitutional Offices Commission is now in operation, but the Accountability and Transparency Commission is not, although draft legislation is said to be underway. This is one obvious respect in which the technical requirements of the Constitution remain to be fulfilled.
My third category of matters for technical implementation comprises legislation and other action that it necessary to fulfil other constitutional mandates. Important examples include the requirement for a written law to establish a code of conduct for office holders and associated matters, including the protection of whistleblowers (s. 149). Another is the requirement for freedom of information legislation, in a form that complies with constitutional requirements (s. 150). I do not think that either of these is yet in existence.
From a technical point of view, therefore, there has been progress with implementation of those parts of the Constitution that specifically mandate action, although there is more to be done. Before leaving this subject, however, I note one other, less obvious aspect of technical implementation, arising from the transitional provisions of the Constitution. These continue the force of existing laws, including decrees, but also, appropriately, recognise the authority of the Parliament to alter them (s. 173). This suggests a further project for the implementation of the Constitution over the longer term: to enact legislation to replace the decrees on the statute book of Fiji, as a basis for removing references to decrees from the Constitution altogether. Such legislation necessarily would comply with the terms of the Constitution. It would give the independent institutions a more appropriate legal base. It would have the additional advantage of avoiding the need for interpretation to resolve some internal inconsistencies within the transitional provisions and between the transitional provisions and the rest of the Constitution.
In most cases, constitutional interpretation is the business of the courts, at least as a last resort. But it also is a task for public officers with responsibility to administer the provisions in issue. Not all questions of interpretation reach a court, or do so in a timely manner. A well-formed government view about what is involved in the obligation to ‘respect, protect, promote and fulfil’ the rights and freedoms in the bill of rights (s. 6(2)), for example, can limit the need for recourse to the courts at all. In addition, some parts of the Constitution for which interpretation is necessary may be less suitable for adjudication by the courts at all. Examples include the important provision for the values and principles of State service in section 123. Some of these values are fairly obvious: ‘free from corruption’ is such a case. Others require more content. Does the requirement for ‘faithful implementation of government policies’ leave room for constitutional standards to be taken into account? What is involved in ‘respectful’ delivery of service to the public’? What else does ‘transparency’ include, apart from ‘timely… disclosure of information to the public’ and ‘prompt, complete and candid reporting to Parliament’? Of course, these are standards to be encouraged through training. But they need to be given meaning first.
There are plenty of other examples of provisions of the Constitution that public officers must interpret before they apply. What amounts to ‘adequate funding and resources’ for the Human Rights Commission or the Auditor-General for the purposes of the constitutional mandate (ss 45(11), 152(9)? What is involved in assisting the courts to ‘ensure their independence, impartiality, accessibility and effectiveness’ (s. 96(4))? What is required for administrative action to be ‘lawful, rational, proportionate, procedurally fair and reasonably prompt’ (s. 16(1))? And in an issue for interpretation of an entirely different kind, what does the overall responsibility of the RFMF for the ‘well-being’ of Fijians mean (s. 131(2))? If understood as any form of specific authority for action, it appears to trespass into the sphere properly reserved for civilian government. If understood rhetorically, it becomes an expression of a general goal, shared by all public officers, as they perform their constitutional roles.
Interpretation of a new Constitution is likely to present particular challenges for the courts. It is possible to anticipate what some of these may be although there will also be, almost certainly, surprises. Examples of the range of issues that might arise can be gleaned from the experiences of other countries. In Zimbabwe, for example, a recent decision has held unconstitutional a legislative provision that enabled prosecutors to overrule judges who freed suspects on bail. This is a fairly straightforward example, which has attracted attention largely because it occurred in Mugabe’s Zimbabwe. In a less usual example, in South Africa, judicial decisions have played a role in promoting participatory democratic standards by giving substantive effect to constitutional provisions that require the Parliament to ‘facilitate public involvement’ in the legislative process.
I note in passing that there are provisions in the Constitution of Fiji that might provide a foundation for such decisions as well. Section 72 is an example, with the duty that it places on the Parliament to ‘facilitate public participation’.
As the South African example shows, questions that require judicial interpretation can arise in relation to many different parts of a Constitution. They are most obviously likely to do so, however, in connection with a bill of rights. There are some particular challenges in this regard in Fiji, caused by transition from military rule. Under section 173, for example, the courts appear to have sweeping authority to interpret existing laws in a way that complies with the Constitution. It is important that they do so in a way that takes advantage of the authority to reinterpret legislation and does not compromise the meaning of the Constitution itself. This challenge may be exacerbated by the apparent protection of the constitutionality of decrees in the section 173(4). Whether section 173(4) does offer such protection or not is itself an issue for judicial interpretation, taking into account the significance of the placement of this section in the transitional provisions of the Constitution.
In some cases interpretation of the bill of rights itself is straightforward because the meaning of the section seems obvious. The presumption of innocence until proven guilty in section 14(2) seems to me to be an example. There are some very big ticket items as well, however, in relation to which early interpretation will be important. They include the extent to which rights will be given horizontal application in accordance with s. 6(3) and the interaction between the bill of rights and the common law, foreshadowed in s. 7 (4). They also include the extent to which courts will be prepared to enforce the social and economic rights provisions in chapter 2, including the rights to education, economic participation, a minimum wage, transportation, housing, food and water, social security, health, housing, and the environment. In some respects these are modelled on provisions in the Constitution of South Africa, which has a sophisticated and effective jurisprudence that could also be useful in Fiji. I am sure you are aware of the potential of these sections, generally and as interpreted by the courts and I will not elaborate further here.
A more difficult question concerns the meaning and scope of the legislative authority to limit constitutional rights and freedoms. At a general level, this is a familiar problem in all common law constitutional systems that have a modern bill of rights. In Fiji, however, the problem takes a particular form. Civil rights in particular, including freedom of expression, appear to be exposed to limitation on a wide range of grounds, including national security, public safety, public order, public morality and public health as long, as least, as limitation is ‘necessary’ (s. 17(3)). Section 6(5)(c) also seems to suggest that other, unspecified, ‘necessary’ limitations can be imposed by ordinary law.
On the other hand, in interpreting the bill of rights, a court is expressly enjoined by the Constitution itself to promote the ‘values that underlie a democratic society based on human dignity, equality and freedom’ (s. 7(1)). Reference to international law is expressly authorised. These rights-protecting indicators are further reinforced by the principles of constitutional interpretation in section 3 of the Constitution, the principles of supremacy of the Constitution in section 2 and the values of the Republic of Fiji in section 1, including respect for human rights.
Inconsistencies of these kinds in the meaning of the rights provisions of the Constitution ultimately must be resolved by the Courts; preferably sooner, rather than later. In doing so, a court might, for example, take advantage of ambiguities in the text of the limitations provisions, of which the repeated references to ‘necessity’ potentially is one, in order to preserve the values of the Constitution itself.
As this example shows, constitutional interpretation rarely involves deciphering the meaning of a particular provision considered in isolation. Rather, interpretation must proceed holistically, giving meaning to the provision in context, in the light of an understanding of the Constitution as a whole. This can be a challenge for judges who have developed their interpretive techniques under an earlier governance regime.. There may be an additional degree of difficulty for judges who are nationals of other countries and more accustomed to the particular problems of interpreting their own Constitution.
The problem of judicial adjustment to a new Constitution is not unique to Fiji, however. It is a well-recognised task to be carried out during the implementation phase. Its accomplishment is complicated by the need to respect the independence of the judiciary. To some extent, therefore, judges must be self-starting in this regard.
But other Fijians have a role to play as well. Lawyers, working in concert with civil society, can be strategic about the cases that they take to court at this early stage. Test cases can be chosen with an eye to the opportunities they offer. The arguments used to advance them should have the longer term development of constitutional meaning in mind. Similarly, while government lawyers necessarily will seek to advance the interests of their client they should do so in a way that nevertheless takes into account the greater good: the interpretation of the Constitution of Fiji in way that enhances its stated goals. And the rest of the community can participate as monitor and critic, explaining the implications of pending cases and analysing the reasons once decisions are made.
- Cultural adaptation
While the new Constitution of Fiji is not uniformly ambitious in its provisions, it is ambitious in its goals. I rehearsed three of these earlier:transition to democratic, civilian rule under an entrenched Constitution; equal political citizenship, subject to the land rights of the i-Taukei; commitment to constitutional government so as to break the cycle of coups. Each of these is specific to the challenging circumstances in which Fiji presently finds itself. Associated with these, however, is another, which reflects a challenge that Fiji shares with many other states. This is to establish representative democracy in a form that genuinely engages citizens and overcomes the cynicism engendered by old-style democratic practices.
Collectively, effective implementation of these important goals, through the medium of the Constitution, requires cultural change on the part of the government, the institution and Members of Parliament, political parties, the public service, the armed forces, the judiciary and Fijian society at large.
Much of the burden necessarily falls on the shoulders of the government, which must make the transition from a form of rule unhindered by checks and balances in the making of law and the conduct of public administration to the very different demands of constitutionalised representative democracy. As in any parliamentary system, the construction of a responsive, transparent and participatory democracy depends critically on executive vision and self-restraint. The government also has the primary responsibility of leading the cultural change that the Constitution demands in the public sector, including the security forces and the police.It must do so, moreover, in a way that encourages confidence in the new Constitution, despite the legacies of the past, as a foundation for cultural change in other quarters.
But responsibility for cultural adaptation does not lie with the government alone. All Members of Parliament, whether government or opposition, including the political parties to which they belong, must contribute to the task of building a contemporary representative democracy in Fiji, giving real life to the new Constitution. Independent institutions, including the judiciary, must insist on being just that. The media and civil society need to play their role as well, so as to prod constitutional evolution in the right direction, despite their apprehensions and misgivings about doing so.And finally, last but not least, cultural change is important in the society as a whole. Much depends on it, including equal citizenship in a participatory democracy and constitutional government in which coups are a thing of the past. Particularly significant in this regard are the expectations of young Fijians who have spent much of their adolescence under non-democratic rule.
All this is more easily said than done. Cultural change is not responsive to command. A constitutional text and implementing legislation can be helpful in providing a foundation for a vibrant democracy, acceptance of checks and balances, willingness to resolve disagreements through constitutional forms, commitment to human rights and mutual respect. They can go only a small part of the way, however, even if the Constitution were perfect. The rest depends on much less tangible drivers, including vision, trust and will. This is the principal challenge of implementing any new Constitution. The difficulty, which also is something of a paradox, is that changes of this kind may take some time, but also are foundational.At the very least, it is important to set them in train early in the implementation phase in a way on which subsequent stages of a longer transition can build.
My task tonight has been to talk about the implementation of the Constitution. The implementation phase is at least as important as any other in making a new Constitution. By this stage, by definition, the Constitution is in effect, warts and all. The challenge of the implementation phase is to try to minimise any defects while ensuring that the rest evolves in the most positive possible way, in the interests of the community that the Constitution is designed to serve.
Fiji is still at the beginning of the implementation phase. This is a time of both opportunity and challenge. Only Fijians can adequately assess whether the opportunities are being taken and the challenges are being met. This is a good time to take stock, for the first time, although it should not be the last. My goal tonight has been to provide you with a possible framework for this assessment, by thinking about implementation as having three dimensions: technical compliance; interpretation; and cultural adaptation and change. The Constitution of Fiji offers fertile ground for maximising its operation by reference to all three, if the opportunities are taken. I very much hope that this occurs.
Melbourne Law School
6 October 2015
 Recent controversy over the interpretation of the ‘peace clause’ in article 9 of the Constitution of Japan may require some qualification of this proposition, with the benefit of hindsight.
 Constitution of Kenya, section 261, Fifth Schedule, http://www.cickenya.org/images/downloads/Constitution/The_Constitution_of_Kenya_2010.pdf; Constitution of Kenya Implementation Commission http://www.cickenya.org/
 Fiji Times Online, 11 December 2014, http://www.fijitimes.com/story.aspx?id=288757
 For example, in Doctors for Life International v Speaker of the National Assembly and others CCT 12/05
Fijileaks Editor: We are grateful to Professor Saunders for making a copy available to Fijileaks for publication.