  |  Nilesh Lal |
The Centre for Democracy and Dialogue has found much to welcome in the Constitution Review Commission’s draft Constitution. That is its right. It has also found much of its own submission in the document. Its chief executive, Nilesh Lal, says that around 17 of Dialogue Fiji’s 22 proposals are reflected in the draft. He calls the draft, in many respects, a major improvement on the 2013 Constitution.
Seventeen out of 22 is a fine result if one is marking a submission. It is a poor way to judge a constitution.
The figure deserves a closer look. In CDD’s first statement, 17 proposals were said to be reflected “to some degree”, including 12 substantially or fully reflected. In its next statement, the 17 became “almost 80 per cent”.
The arithmetic is sound. What the percentage conceals is that five of those proposals have only partial recognition, by CDD’s own preliminary account. The public has yet to see a clause by clause explanation of what was accepted, what was changed and what was left behind.
CDD’s account reads rather like a report to its supporters on how many of its recommendations found favour. Its donors may be pleased by that figure. Fiji’s voters need a different accounting: which proposals were adopted, in what form, and whether the constitution as a whole deserves their support.
The organisation identifies Bread for the World as a funder of some of its constitutional education publications. That funding tells us nothing about why CDD chose to emphasise the number in this press release. The number must be judged on its usefulness to the public.
There are gains worth examining. A limit on the Prime Minister’s terms, a cap on Cabinet size, stronger protection for rights, more independent appointments and firmer parliamentary scrutiny all deserve consideration. CDD has argued for such changes and is entitled to say when the Commission has listened.
The question before Fiji, however, is whether the proposed constitution, taken as a whole, would distribute power fairly, protect every citizen and command public confidence. A serious flaw in representation cannot be cancelled by a dozen attractive provisions elsewhere.
CDD knows this. In its own preliminary assessment it raises serious concerns about the proposed electoral system: 26 constituency seats and 15 compensatory list seats in a 41 seat House. It questions the return of a 19 member Senate containing unelected members, the reopening of the debate over a common Fijian identity, and constitutional political roles for traditional or ethnically defined institutions. These matters concern who gets a voice in Parliament and who exercises authority over citizens.
Take the electoral proposal. CDD warns that the Commission’s version of mixed member proportional representation could operate in a strongly majoritarian fashion because so many seats would be decided in single member constituencies. Fiji’s electoral arrangements have never been a mere exercise in choosing a voting formula.
They affect whether votes translate fairly into seats and whether communities can see themselves represented. If the proposed system fails that test, a constitutional cap on Cabinet will offer little comfort to those left outside the chamber.
The proposed Senate raises a related question. What authority would its unelected members possess, and to whom would they answer? CDD rightly asks whether Fiji should move from a fully elected national legislature to one in which a substantial part is selected through political and traditional institutions. That concern calls for close examination of the Senate’s composition and powers. It should not be softened by the reassuring sound of “17 out of 22”.
CDD says a constitution must protect the ruled from the ruler. Agreed. But power can sit beyond the Cabinet of the day, in appointments bodies, unelected chambers and institutions whose decisions affect people who had no meaningful part in choosing them. Every proposed safeguard needs the same test: who appoints its members, whose interests can they advance, what powers can they exercise, and how can the public hold them to account?
There is also the question of the Commission’s assignment. It was established to review the Constitution and make recommendations. The public has now been given a draft constitution alongside its report.
CDD may favour many provisions, but it should address plainly how the draft was prepared, who drafted it, and how citizens are expected to scrutinise changes of this scale. Praise for an improved clause cannot settle questions about the process that produced the whole document.
None of this requires CDD to withdraw its support for worthwhile reforms. Its warning about possible regressions is valuable. It does require CDD to publish the full comparison behind its figure. Identify the five proposals that did not make it, the five reflected only partly, and the clauses said to meet the other 12. Then explain how those gains stand up against the proposed changes to elections, Parliament and national institutions.
CDD has promised a fuller assessment. It should use that assessment to ask the hardest question of its own favourable finding: could a draft adopt most of CDD’s proposals and still leave Fiji with a constitution it ought to reject in its present form?
The answer cannot be found by counting recommendations. Fiji’s people will have to live under the entire constitution. They are entitled to weigh every exercise of power it permits, every voice it includes, and every voice it leaves out.
The Constitution Review Commission heard from 3,873 people, but only 7 per cent of those recorded by ethnicity were Indo-Fijians. Before its report is presented as the voice of the nation by Nilesh Lal and his CDD, he should ask whose voices were heard, whose were missing, and why.
Seventeen out of 22 is a fine result if one is marking a submission. It is a poor way to judge a constitution.
The figure deserves a closer look. In CDD’s first statement, 17 proposals were said to be reflected “to some degree”, including 12 substantially or fully reflected. In its next statement, the 17 became “almost 80 per cent”.
The arithmetic is sound. What the percentage conceals is that five of those proposals have only partial recognition, by CDD’s own preliminary account. The public has yet to see a clause by clause explanation of what was accepted, what was changed and what was left behind.
CDD’s account reads rather like a report to its supporters on how many of its recommendations found favour. Its donors may be pleased by that figure. Fiji’s voters need a different accounting: which proposals were adopted, in what form, and whether the constitution as a whole deserves their support.
The organisation identifies Bread for the World as a funder of some of its constitutional education publications. That funding tells us nothing about why CDD chose to emphasise the number in this press release. The number must be judged on its usefulness to the public.
There are gains worth examining. A limit on the Prime Minister’s terms, a cap on Cabinet size, stronger protection for rights, more independent appointments and firmer parliamentary scrutiny all deserve consideration. CDD has argued for such changes and is entitled to say when the Commission has listened.
The question before Fiji, however, is whether the proposed constitution, taken as a whole, would distribute power fairly, protect every citizen and command public confidence. A serious flaw in representation cannot be cancelled by a dozen attractive provisions elsewhere.
CDD knows this. In its own preliminary assessment it raises serious concerns about the proposed electoral system: 26 constituency seats and 15 compensatory list seats in a 41 seat House. It questions the return of a 19 member Senate containing unelected members, the reopening of the debate over a common Fijian identity, and constitutional political roles for traditional or ethnically defined institutions. These matters concern who gets a voice in Parliament and who exercises authority over citizens.
Take the electoral proposal. CDD warns that the Commission’s version of mixed member proportional representation could operate in a strongly majoritarian fashion because so many seats would be decided in single member constituencies. Fiji’s electoral arrangements have never been a mere exercise in choosing a voting formula.
They affect whether votes translate fairly into seats and whether communities can see themselves represented. If the proposed system fails that test, a constitutional cap on Cabinet will offer little comfort to those left outside the chamber.
The proposed Senate raises a related question. What authority would its unelected members possess, and to whom would they answer? CDD rightly asks whether Fiji should move from a fully elected national legislature to one in which a substantial part is selected through political and traditional institutions. That concern calls for close examination of the Senate’s composition and powers. It should not be softened by the reassuring sound of “17 out of 22”.
CDD says a constitution must protect the ruled from the ruler. Agreed. But power can sit beyond the Cabinet of the day, in appointments bodies, unelected chambers and institutions whose decisions affect people who had no meaningful part in choosing them. Every proposed safeguard needs the same test: who appoints its members, whose interests can they advance, what powers can they exercise, and how can the public hold them to account?
There is also the question of the Commission’s assignment. It was established to review the Constitution and make recommendations. The public has now been given a draft constitution alongside its report.
CDD may favour many provisions, but it should address plainly how the draft was prepared, who drafted it, and how citizens are expected to scrutinise changes of this scale. Praise for an improved clause cannot settle questions about the process that produced the whole document.
None of this requires CDD to withdraw its support for worthwhile reforms. Its warning about possible regressions is valuable. It does require CDD to publish the full comparison behind its figure. Identify the five proposals that did not make it, the five reflected only partly, and the clauses said to meet the other 12. Then explain how those gains stand up against the proposed changes to elections, Parliament and national institutions.
CDD has promised a fuller assessment. It should use that assessment to ask the hardest question of its own favourable finding: could a draft adopt most of CDD’s proposals and still leave Fiji with a constitution it ought to reject in its present form?
The answer cannot be found by counting recommendations. Fiji’s people will have to live under the entire constitution. They are entitled to weigh every exercise of power it permits, every voice it includes, and every voice it leaves out.
The Constitution Review Commission heard from 3,873 people, but only 7 per cent of those recorded by ethnicity were Indo-Fijians. Before its report is presented as the voice of the nation by Nilesh Lal and his CDD, he should ask whose voices were heard, whose were missing, and why.
A Constitution That Remembers Cession but Somehow Forgets Girmit
“ACKNOWLEDGING our unique constitutional history: (a) first, the Deed of Cession of 10 October 1874, when Ratu Epenisa Seru Cakobau and the High Chiefs of Fiji, signifying their loyalty and devotion to God and the rule of law, ceded Fiji to Great Britain, followed by the cession of Rotuma to Great Britain by the Chiefs of Rotuma in May 1881…”
One of the Constitution Review Commission members, Neelesh Goundar, has yet to reply to my question whether he insisted, or even considered suggesting, that this account of Fiji’s “unique constitutional history” should also acknowledge the arrival of the first Indian indentured labourers, the girmitiyas, aboard the Leonidas on 14 May 1879.
Chronologically, girmit belongs between the Deed of Cession in 1874 and the cession of Rotuma in 1881. Historically, its omission speaks more loudly than its inclusion ever could.
Cakobau Government Sought Indian Labour in 1872
*It was Ratu Seru Cakobau’s chief official, John Bates Thurston, a member of the Cakobau Government, who wrote directly to the Government of India in 1872, advocating the introduction of Indian indentured labourers to help rescue Fiji’s struggling economy. Thurston pointed out that Fiji had a ‘fully constituted government of European residents and native chiefs’, which had been recognised by British and other European powers. Indigenous Fijians, he added, had ‘lately emerged from barbarism’ and were displaying a ‘remarkably cordial attitude’ towards foreigners. He was suggesting, in effect, that there would be no indigenous hostility towards the introduction of Indian labourers into Fiji. It was governor Sir Arthur Gordon who, in 1879, secured the labourers.
