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OATH AND LOATHING 2013 CONSTITUTION
*As we have reminded repeatedly, one cannot take oath under the 2013 Constitution of Fiji and, in the next breath, attempt to trash it. We have individuals who simply disappeared to ply their trade in other Pacific Island states, and have re-appeared with the change of political guard.
*If Fiji needs a new Constitution, it needs a Constitution to prevent the now majority i-Taukei from reverting to the blood-letting power of the clubs during the old tribal days, for sooner or later, they will turn on each other now they have become the dominant race in Fiji - African style tribal conflicts.
*And the military, the last bastion of law and order, must reform and become a genuinely multi-racial outfit representing all the races in Fiji.
*It is the minority races who need water-tight constitutional protection from the die-hard racists and nationalists swimming with snakey Rabuka.
* GRAHAM LEUNG was allegedly all suited and waiting to be picked up, driven to Government House and sworn in as the new Attorney-General and Justice Minister in the Rabuka led Coalition government.
*The car never came, for Siromi Turaga and his hardcore nationalists arm-twisted Rabuka, insisting that Leung-Ho was NOT i-Taukei enough to be appointed the new Attorney-General of Fiji.
*The 2013 Constitution, flawed as it is in some aspects, was one last gasp to rein in the i-Taukei racists and nationalists hell-bent on reducing Indo-Fijians to second-class citizens, in the name of – to borrow Mick Beddoes' hobby-horse - 'The First Nation Peoples of Fiji'.
*As for 'Kai Vata Professor Anthony Regan' - no expert on Fiji politics - we have heard it all from him (1 December 2023 article, below).
*When Graham Leung revealed that they had initiated discussions with local and international lawyers regarding the amendment of the 2013 Constitution, our instinct and long history in the study of constitution-making in divided societies led to ANTHONY REGAN, and we were spot on when it was revealed that he would be keynote speaker at the FNU.
*Let us talk about the racist, feudalistic, and autocratic 1990 Constitution and bring to justice those who disenfranchised, persecuted, and turned Indo-Fijians into second-class citizens, especially Sitiveni Rabuka.
*One ISIKELI MATAITOGA is now judge on the Fiji Court of Appeal.
*He had argued (Victoria University Law Review Journal, 1991) that there was no need to hold referendum on the imposed 1990 Constitution of Fiji.
* He had donned military uniform, become DPP and was in the forefront of hounding, persecuting, and prosecuting opponents of 1987 Coups.
*The critics of the 75% majority in a referendum entrenched in the 2013 Constitution want to challenge it in the Fiji High Court - well, Fiji, we have a JUDGE who was against referendum and champion of racism in 1991.
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The good, the bad, and the nasty in attendance at FNU to listen to Anthony Regan
ANTHONY REGAN'S 1 December 2023 article, Journal of Pacific History:
 ABSTRACT: This article analyses the origins, practice, and prospects of the 2013 Fiji Constitution, which delivers on aspects of Brij Lal’s hopes for a civilian government under a liberal democratic constitution. Yet the Constitution is also distinctly illiberal in concentrating enormous power in just two offices, and in its unusual amnesty and amendment procedures. It creates a winner-takes-all government system that grants electoral victors great powers. They are constrained mainly by the self-appointed extra-constitutional and expansive role of the RFMF as guardian of the Fijian people and the 2013 Constitution, rendering uncertain the constitutional review proposals of the new regime, elected in December 2022 |  |
"Unless the new [Coalition] government can be remarkably adroit in handling its promised review, the current militarily imposed constitution – intended to do away with Fiji’s coup culture – could well itself provide the impetus for the next military intervention into Fiji’s politics."
PROSPECTS FOR THE 2013 CONSTITUTION, AFTER THE 2022 ELECTION
In December 2022, a change of government under the terms of the 2013 Constitution occurred in a relatively orderly manner, despite a deliberate attempt by Bainimarama to incite an RFMF intervention in support of the continuity of his leadership.70 FijiFirst was replaced by a three-party coalition, headed by the new prime minister, Sitiveni Rabuka, with a majority of just one seat. Following the change, the future of the 2013 Constitution is uncertain. All three coalition parties have a strong history of criticizing and calling for change to the 2013 Constitution, and review and amendment proposals were explicit in the People’s Alliance 2022 election manifesto. Further, the 30 December 2022 ‘Coalition Agreement’, signed by all party leaders and general secretaries, committed the new government ‘to consult widely on the setting up of a process to review the 2013 Constitution and consider amendments’ (though adding ‘to be implemented in keeping with Chapter 11 of the Constitution’, the near-impossible amendment procedure). The agreement also envisages policy initiatives that could require constitutional change, namely re-establishing the Great Council of Chiefs; and reviewing, and then amending or repealing, decrees and other laws passed since 2006 that impact Taukei interests.
At the same time, however, Bainimarama has insisted that the constitution must be adhered to in full, and criticizes the coalition’s alleged non-compliance. Further, the RFMF continues to claim a constitutional guardianship status. Public discussion by the new coalition’s attorney-general of possible constitutional amendment without a vote in parliament saw the commander express serious concerns and refer to the RFMF’s ‘guardian role’. In a mid-February 2023 parliamentary speech, Bainimarama again sought RFMF intervention, this time in support of the constitution, which he claimed was under immediate threat by the new regime.74 His subsequent three-year suspension from parliament for breach of parliamentary privilege for his attack on the president in the same speech heightened concern about the possibility of some form of military intervention.
Under constituency pressure to honour election promises to review and amend the 2013 Constitution, the coalition government faces two significant obstacles: an almost unamendable constitution and concern about RFMF intervention being possible. Despite Bainimarama’s 2017 assertion that review is not possible because of the absence of a review provision in the 2013 Constitution, there is, in fact, no obstacle to a government reviewing the constitution through a parliamentary committee or other ad hoc body. In advance of the 2022 election, Rabuka promised to establish a constitutional review commission, including ‘people with expert knowledge’, within the first 100 days of his government. Proposals for constitutional amendment developed through a review process would normally be dealt with under the existing amendment provisions (ss. 159–161).
Not only is amendment through these provisions a near impossibility, but near equality of government and opposition seats in parliament makes meeting the three-quarters absolute parliamentary majority requirement inconceivable without major defections from FijiFirst and its supporters. As a result, coalition leaders and Fiji observers are suggesting possible ways of amending or replacing the 2013 Constitution. One possibility involves utilizing a referendum to adopt amendments, but without a three-quarters absolute majority vote in parliament. has been made by both Rabuka and the new attorney-general, Siromi Turaga, neither has explained how their proposal could succeed against judicial challenge when it is clearly inconsistent with the current amendment provisions.
A second option advanced by Australian lawyer and drafter of the 1997 Constitution, Denis O’Brien, proposes that the new government restore the 1997 Constitution by establishing a parliamentary committee to record changes needed to the 1997 document to form the basis for a constitutional amendment bill for enactment using the special majority procedure in the 1997 Constitution. 78 The brief published report of O’Brien’s proposals is unclear regarding what legislative body would enact the proposed amendment bill. Would it be the last parliament under the 1997 Constitution? If so, what practical problems might there be in seeking to re-convene that body? Or would it be the current parliament? If so, where would it derive its authority and how would the necessary numbers in favour of the amendments be found in the post-2022 election politically polarized parliament?
The third and more promising approach involves a judicial challenge to the validity of the 2013 Constitution as a whole, on the basis that the 1997 Constitution remains in force.79 The argument is that, in 2009, the Court of Appeal ruled that the 1997 Constitution was still in effect despite the 2006 coup (a decision never since challenged in any court), and that the 2009 decision’s validity remains untouched by Bainimarama’s subsequent purported abrogation of the 1997 Constitution. Former permanent secretary in the office of the deposed pre-2006 coup prime minister and part-time law lecturer at the University of Fiji, Jioji Kotobalavu, recommends that the prime minister and leader of the opposition ‘jointly sponsor a motion in Parliament’ to ‘request the Supreme Court … to provide an advisory opinion on the status in law of the 1997 Constitution’. 80 Given the division of numbers in the parliament and Bainimarama’s attitude, such a jointly sponsored motion is unlikely in the extreme. But the suggested constitutional basis for the challenge has merit with precedent in court decisions in Nigeria, Pakistan, and elsewhere.81 Yet another basis for judicial review of the 2013 Constitution’s validity would involve challenging its legitimacy on the basis of the regime’s failure to ensure its adoption by an elected parliament or representative constituent assembly.
Another ground for challenge could be regime non-compliance with its own Decree No. 12, 2013 (March 2013), which repealed Decree No. 58, 2012, that had envisaged a constituent assembly debating the draft 2012 constitution prior to its adoption, but left untouched Decree No. 57, 2012 (establishing the 2012 Commission and specifying the non-negotiable principles that its draft constitution was required to meet). Decree No. 12, 2013 provided that after the president’s receipt of the 2012 Commission’s draft, ‘such changes … as the President considers necessary’ could be made to that document, before it was published in the media and with time allowed for receiving ‘written submissions on the views of the people’.
Further changes could then be made before presidential assent was given to the final constitution. The key point here is that the decree required the regime to receive and to continue working with the 2012 draft constitution. As both the constitution, developed in secret by the attorney-general and published by the regime in March 2013, and the final 2013 Constitution, had very little relationship to the 2012 commission draft, it is evident that the regime did not work from the commission’s draft as required by its own decree. In addition, it could be argued that the 2013 Constitution failed to comply fully with the ‘principles and values’ that Decree No. 57, 2012 (s. 3(e)) required the final constitution to meet, for example, those envisaging a constitution providing for ‘an independent judiciary’, ‘good and transparent governance’, and perhaps even ‘social justice’. The repeal of Decree No. 58, 2012 did away with the only mechanism for evaluation of adherence to the ‘principles and values’ (a tribunal headed by the chief justice), and there has never been a substantive evaluation of the 2013 Constitution in these terms.
Several obvious legal issues could arise for a government challenging the validity of the constitution that brought it to power. There would be some practical issues to resolve if the 1997 Constitution were to be declared in operation and replacing the 2013 Constitution, including a possible need to reinstate the parliament elected in the last election held under the 1997 Constitution (in 2006). The obvious answer would be to propose to the court to simply treat the 1997 arrangements (modified by ‘judicial ingenuity’) as temporary transitional arrangements while a new constitution is developed and adopted through a legitimate process.
Each of these alternatives would require a judiciary ready to deny the legitimacy and validity of the 2013 Constitution, but there are two major obstacles to that requirement. First, the judiciary, transformed since 2008–9, is no longer clearly independent and impartial. Yet the 2013 Constitution gives the new prime minister and attorney-general considerable control of judicial appointments, which could allow the emergence of a judiciary open to such alternatives. In fact, the Rabuka government has already used these powers to suspend the chief justice, Kamal Kumar, a FijiFirst appointee, on the grounds of alleged misbehaviour.82 The second and most difficult obstacle is the RFMF. As the self-appointed extra-constitutional guardian of the 2013 Constitution, any government intent on its review and change would need RFMF approval – or at least its acquiescence. Its position since 2006 makes this seem unlikely.
CONCLUSION
In April 2022, Prime Minister Bainimarama contrasted the ‘racist’ 1987 coup with his 2006 coup that had ‘targeted racism’. 83 In truth, however, as Brij Lal observed in his final interview, the material basis for past Fijian politics no longer exists: the iTaukei community now dominates demographics. At the same time, chiefly authority was already eroded through coups and urbanization. As a result, the political and constitutional engineering from 2006 to the present, supposedly intended to end racial divisions and prevent future coups permanently, was not needed.
While Bainimarama may have sought to end the extensive politicized ethnic rivalry of 20th-century Fiji, Lal reminds us that the price was a constitution and political party ‘so personalised and so focused on him’. 84 Ultimately, Bainimarama retained his near-absolute authority until December 2022, derived from both democratic elections under the 2013 Constitution and his effective control over the RFMF. Ironically, given its coup alibi of ending racism in public life, the RFMF remains the ultimate iTaukei ethnic institution, with civilian governance subsisting on its sufferance.
It remains to be seen if any written text – even one drafted by and for its former leader – can restrain its existential self-interest. Following the 2022 election, the future of the 2013 Constitution is uncertain. The fragile coalition, under pressure to review and amend it, also faces the everlooming danger of RFMF intervention to preserve the constitution. At this stage, there is no clear constitutional process available for an orderly change to a new constitutional order, particularly as the RFMF ultimately does not see its self-defined mandate as constrained by the constitution.
Unless the new government can be remarkably adroit in handling its promised review, the current militarily imposed constitution – intended to do away with Fiji’s coup culture – could well itself provide the impetus for the next military intervention into Fiji’s politics.
In December 2022, a change of government under the terms of the 2013 Constitution occurred in a relatively orderly manner, despite a deliberate attempt by Bainimarama to incite an RFMF intervention in support of the continuity of his leadership.70 FijiFirst was replaced by a three-party coalition, headed by the new prime minister, Sitiveni Rabuka, with a majority of just one seat. Following the change, the future of the 2013 Constitution is uncertain. All three coalition parties have a strong history of criticizing and calling for change to the 2013 Constitution, and review and amendment proposals were explicit in the People’s Alliance 2022 election manifesto. Further, the 30 December 2022 ‘Coalition Agreement’, signed by all party leaders and general secretaries, committed the new government ‘to consult widely on the setting up of a process to review the 2013 Constitution and consider amendments’ (though adding ‘to be implemented in keeping with Chapter 11 of the Constitution’, the near-impossible amendment procedure). The agreement also envisages policy initiatives that could require constitutional change, namely re-establishing the Great Council of Chiefs; and reviewing, and then amending or repealing, decrees and other laws passed since 2006 that impact Taukei interests.
At the same time, however, Bainimarama has insisted that the constitution must be adhered to in full, and criticizes the coalition’s alleged non-compliance. Further, the RFMF continues to claim a constitutional guardianship status. Public discussion by the new coalition’s attorney-general of possible constitutional amendment without a vote in parliament saw the commander express serious concerns and refer to the RFMF’s ‘guardian role’. In a mid-February 2023 parliamentary speech, Bainimarama again sought RFMF intervention, this time in support of the constitution, which he claimed was under immediate threat by the new regime.74 His subsequent three-year suspension from parliament for breach of parliamentary privilege for his attack on the president in the same speech heightened concern about the possibility of some form of military intervention.
Under constituency pressure to honour election promises to review and amend the 2013 Constitution, the coalition government faces two significant obstacles: an almost unamendable constitution and concern about RFMF intervention being possible. Despite Bainimarama’s 2017 assertion that review is not possible because of the absence of a review provision in the 2013 Constitution, there is, in fact, no obstacle to a government reviewing the constitution through a parliamentary committee or other ad hoc body. In advance of the 2022 election, Rabuka promised to establish a constitutional review commission, including ‘people with expert knowledge’, within the first 100 days of his government. Proposals for constitutional amendment developed through a review process would normally be dealt with under the existing amendment provisions (ss. 159–161).
Not only is amendment through these provisions a near impossibility, but near equality of government and opposition seats in parliament makes meeting the three-quarters absolute parliamentary majority requirement inconceivable without major defections from FijiFirst and its supporters. As a result, coalition leaders and Fiji observers are suggesting possible ways of amending or replacing the 2013 Constitution. One possibility involves utilizing a referendum to adopt amendments, but without a three-quarters absolute majority vote in parliament. has been made by both Rabuka and the new attorney-general, Siromi Turaga, neither has explained how their proposal could succeed against judicial challenge when it is clearly inconsistent with the current amendment provisions.
A second option advanced by Australian lawyer and drafter of the 1997 Constitution, Denis O’Brien, proposes that the new government restore the 1997 Constitution by establishing a parliamentary committee to record changes needed to the 1997 document to form the basis for a constitutional amendment bill for enactment using the special majority procedure in the 1997 Constitution. 78 The brief published report of O’Brien’s proposals is unclear regarding what legislative body would enact the proposed amendment bill. Would it be the last parliament under the 1997 Constitution? If so, what practical problems might there be in seeking to re-convene that body? Or would it be the current parliament? If so, where would it derive its authority and how would the necessary numbers in favour of the amendments be found in the post-2022 election politically polarized parliament?
The third and more promising approach involves a judicial challenge to the validity of the 2013 Constitution as a whole, on the basis that the 1997 Constitution remains in force.79 The argument is that, in 2009, the Court of Appeal ruled that the 1997 Constitution was still in effect despite the 2006 coup (a decision never since challenged in any court), and that the 2009 decision’s validity remains untouched by Bainimarama’s subsequent purported abrogation of the 1997 Constitution. Former permanent secretary in the office of the deposed pre-2006 coup prime minister and part-time law lecturer at the University of Fiji, Jioji Kotobalavu, recommends that the prime minister and leader of the opposition ‘jointly sponsor a motion in Parliament’ to ‘request the Supreme Court … to provide an advisory opinion on the status in law of the 1997 Constitution’. 80 Given the division of numbers in the parliament and Bainimarama’s attitude, such a jointly sponsored motion is unlikely in the extreme. But the suggested constitutional basis for the challenge has merit with precedent in court decisions in Nigeria, Pakistan, and elsewhere.81 Yet another basis for judicial review of the 2013 Constitution’s validity would involve challenging its legitimacy on the basis of the regime’s failure to ensure its adoption by an elected parliament or representative constituent assembly.
Another ground for challenge could be regime non-compliance with its own Decree No. 12, 2013 (March 2013), which repealed Decree No. 58, 2012, that had envisaged a constituent assembly debating the draft 2012 constitution prior to its adoption, but left untouched Decree No. 57, 2012 (establishing the 2012 Commission and specifying the non-negotiable principles that its draft constitution was required to meet). Decree No. 12, 2013 provided that after the president’s receipt of the 2012 Commission’s draft, ‘such changes … as the President considers necessary’ could be made to that document, before it was published in the media and with time allowed for receiving ‘written submissions on the views of the people’.
Further changes could then be made before presidential assent was given to the final constitution. The key point here is that the decree required the regime to receive and to continue working with the 2012 draft constitution. As both the constitution, developed in secret by the attorney-general and published by the regime in March 2013, and the final 2013 Constitution, had very little relationship to the 2012 commission draft, it is evident that the regime did not work from the commission’s draft as required by its own decree. In addition, it could be argued that the 2013 Constitution failed to comply fully with the ‘principles and values’ that Decree No. 57, 2012 (s. 3(e)) required the final constitution to meet, for example, those envisaging a constitution providing for ‘an independent judiciary’, ‘good and transparent governance’, and perhaps even ‘social justice’. The repeal of Decree No. 58, 2012 did away with the only mechanism for evaluation of adherence to the ‘principles and values’ (a tribunal headed by the chief justice), and there has never been a substantive evaluation of the 2013 Constitution in these terms.
Several obvious legal issues could arise for a government challenging the validity of the constitution that brought it to power. There would be some practical issues to resolve if the 1997 Constitution were to be declared in operation and replacing the 2013 Constitution, including a possible need to reinstate the parliament elected in the last election held under the 1997 Constitution (in 2006). The obvious answer would be to propose to the court to simply treat the 1997 arrangements (modified by ‘judicial ingenuity’) as temporary transitional arrangements while a new constitution is developed and adopted through a legitimate process.
Each of these alternatives would require a judiciary ready to deny the legitimacy and validity of the 2013 Constitution, but there are two major obstacles to that requirement. First, the judiciary, transformed since 2008–9, is no longer clearly independent and impartial. Yet the 2013 Constitution gives the new prime minister and attorney-general considerable control of judicial appointments, which could allow the emergence of a judiciary open to such alternatives. In fact, the Rabuka government has already used these powers to suspend the chief justice, Kamal Kumar, a FijiFirst appointee, on the grounds of alleged misbehaviour.82 The second and most difficult obstacle is the RFMF. As the self-appointed extra-constitutional guardian of the 2013 Constitution, any government intent on its review and change would need RFMF approval – or at least its acquiescence. Its position since 2006 makes this seem unlikely.
CONCLUSION
In April 2022, Prime Minister Bainimarama contrasted the ‘racist’ 1987 coup with his 2006 coup that had ‘targeted racism’. 83 In truth, however, as Brij Lal observed in his final interview, the material basis for past Fijian politics no longer exists: the iTaukei community now dominates demographics. At the same time, chiefly authority was already eroded through coups and urbanization. As a result, the political and constitutional engineering from 2006 to the present, supposedly intended to end racial divisions and prevent future coups permanently, was not needed.
While Bainimarama may have sought to end the extensive politicized ethnic rivalry of 20th-century Fiji, Lal reminds us that the price was a constitution and political party ‘so personalised and so focused on him’. 84 Ultimately, Bainimarama retained his near-absolute authority until December 2022, derived from both democratic elections under the 2013 Constitution and his effective control over the RFMF. Ironically, given its coup alibi of ending racism in public life, the RFMF remains the ultimate iTaukei ethnic institution, with civilian governance subsisting on its sufferance.
It remains to be seen if any written text – even one drafted by and for its former leader – can restrain its existential self-interest. Following the 2022 election, the future of the 2013 Constitution is uncertain. The fragile coalition, under pressure to review and amend it, also faces the everlooming danger of RFMF intervention to preserve the constitution. At this stage, there is no clear constitutional process available for an orderly change to a new constitutional order, particularly as the RFMF ultimately does not see its self-defined mandate as constrained by the constitution.
Unless the new government can be remarkably adroit in handling its promised review, the current militarily imposed constitution – intended to do away with Fiji’s coup culture – could well itself provide the impetus for the next military intervention into Fiji’s politics.
