 *The Constitution Review Commission has proposed a radically restructured legislature, a new method of choosing the President, the restoration of the Great Council of Chiefs and a division of responsibility between FICAC and the Director of Public Prosecutions. Some recommendations deserve serious consideration. *Others, especially the unexplained removal of Fiji’s constitutional identity as a secular State, raise questions that cannot be answered while the Commission’s report and Draft Constitution Bill remain concealed from the public. |   |
The Constitution Review Commission has delivered to President Ratu Naiqama Lalabalavu a set of recommendations capable of fundamentally altering the architecture of the Fijian State.
The proposals deserve careful public examination. That examination cannot properly begin, however, when neither the Commission’s full report nor its Draft Constitution Bill has been released.
A smaller elected House but on what democratic calculation?
The proposed reduction of the elected House from the present 55 members to 41 requires a convincing explanation.
Fiji’s Parliament had 50 seats at the 2014 election, 51 in 2018 and 55 in 2022. The increases reflected the population-based formula contained in section 54 of the 2013 Constitution. The Electoral Commission has already determined that the next Parliament should remain at 55 seats.
The Review Commission now proposes reducing the number of elected representatives by fourteen, more than one-quarter of the existing House, while simultaneously creating a 19-member Senate.
The total legislature would therefore contain 60 members: 41 elected members in the lower House and 19 senators. Fiji would not necessarily obtain a cheaper or smaller Parliament. It would obtain a smaller directly elected chamber alongside a substantial upper chamber whose method of composition has not yet been disclosed.
That distinction matters.
A reduction in elected MPs means larger constituencies, fewer representatives available to individual citizens and potentially greater difficulty for outer islands, rural districts and dispersed communities to obtain effective representation. It could also strengthen the executive’s control over the elected House, particularly if a government secured a comfortable majority from a distorted first-past-the-post result.
The Commission must explain why 41 is the appropriate number. Was it derived from population, geography, provincial representation, international comparison, cost, administrative convenience or simply political compromise?
Without the report, the figure appears arbitrary.
The mixed electoral system may improve local accountability or manufacture majorities
The proposed electoral system combines 26 constituency seats elected under first past the post with 15 proportional-representation seats.
There is a respectable democratic case for abandoning Fiji’s present single nationwide constituency. Under the current system, voters across the country choose candidates from one national list. It gives every vote formally equal value but weakens the direct connection between an MP and a particular locality. Individual candidates also depend heavily upon the popularity of party leaders.
The proposed 26 constituencies could restore geographical representation and give citizens an identifiable local MP. That would be a genuine improvement if constituency boundaries were independently and fairly drawn.
But first past the post carries its own dangers. A party can win a constituency with considerably less than half of the vote where several candidates contest the seat. It can also secure a majority of constituency seats without winning a majority of votes nationally.
The 15 proportional seats might correct that distortion but only if they are genuinely compensatory.
The public needs to know whether the proportional seats would be allocated to ensure that each party’s total number of seats broadly corresponds with its national share of the vote. If the 15 seats are merely added independently to the 26 constituency results, the system could reward large parties twice: once through constituency victories and again through a party-list vote.
The Draft Constitution must therefore answer several essential questions: Will voters have one vote or two?
The description “26 first-past-the-post seats plus 15 proportional seats” is not an electoral system. It is merely its outline.
No reserved seats: formal equality may not produce representative equality
The Commission has rejected reserved seats for women and ethnic groups and states that all seats will be open.
The decision against racial reservation is understandable. Fiji’s constitutional history demonstrates the danger of permanently organising political representation around ethnicity. Communal rolls helped entrench racial political identities and encouraged parties to mobilise voters as members of ethnic blocs rather than as citizens sharing common economic and social interests.
But the rejection of reserved seats for women requires separate analysis. Ethnic reservation and measures designed to remedy the chronic under-representation of women do not raise identical constitutional or historical considerations.
An open-seat system can be formally equal while continuing to favour established male candidates with party connections, financial resources and traditional authority. The Commission should disclose whether it considered party-list quotas, alternating male and female candidates, financial incentives for parties presenting balanced lists, or other less rigid mechanisms.
Simply declaring every seat “open” does not establish that every citizen has an equal practical opportunity to enter Parliament.
A 19-member Senate could provide scrutiny or become a house of political patronage
Restoration of the Senate deserves more than automatic rejection or nostalgic approval.
A properly designed upper chamber can review legislation, restrain hurried law-making, protect long-term constitutional interests and provide representation for regions and communities that may be overwhelmed in the elected House. Fiji’s recent experience of legislation being rushed through a single chamber strengthens the argument for institutional review.
But everything depends upon the Senate’s composition and powers.
Who will appoint the 19 senators? How many, if any, will be nominated by the Great Council of Chiefs, the Prime Minister, the Leader of the Opposition, religious organisations, provincial councils, women’s organisations, trade unions, professional bodies or minority communities?
Will senators possess an absolute veto over constitutional amendments? Will they merely delay ordinary legislation? Can they reject money bills? Will ministers be appointed from the Senate? Will Senate appointments be used to reward defeated candidates and political allies?
The restoration of a Senate is not intrinsically democratic. An unelected chamber can improve democratic government by imposing scrutiny upon the elected executive. It can equally become a repository for patronage and an instrument through which unelected interests frustrate the will of voters.
The proposed Senate cannot be evaluated merely by counting its 19 seats. Its legitimacy will depend on who fills them, who selects them, what interests they represent and what powers they exercise.
The Presidential Appointment Committee is already numerically unclear
The Commission proposes that the President be chosen by a six-member Presidential Appointment Committee. Yet the FijiVillage account identifies only five sources entitled to nominate candidates:
Is each body nominating a person to serve on the committee, or merely submitting candidates for the presidency? Who appoints the sixth committee member? Who chairs the committee? What happens in the event of a three-three division? Is the committee’s decision final, or must Parliament confirm it?
There is also a broader constitutional issue. Giving both the Council of Churches and an interfaith organisation a formal role in selecting the Head of State sits uneasily beside the Commission’s assertion that religious freedom will remain equally guaranteed.
Religious organisations are entitled to participate in national debate. But constitutional participation is different from constitutional power.
If religious bodies are to be given a formal role in appointing the President, the Commission must explain why they are constitutionally privileged over organisations representing women, workers, universities, people with disabilities, youth, business, civil society or Fiji’s non-religious citizens.
Religious freedom without a secular State: protection or constitutional contradiction?
The most troubling recommendation is the proposed removal of Fiji’s declaration as a secular State while retaining a guarantee of religious freedom.
Section 4 of the 2013 Constitution does more than attach the word “secular” to the State. It states that religion and the State are separate; public office-holders must treat all religions equally; the State must not dictate religious belief; and government must not prefer or advance one religion over another or over non-religious belief.
Section 22 separately guarantees freedom of religion, conscience and belief, including the freedom to practise religion publicly or privately and the freedom not to be compelled to act contrary to one’s beliefs.
The two protections perform related but different functions.
Religious freedom protects the individual and the religious community. Secularism restrains the State. It prevents public power from being captured or constitutionally influenced by a dominant faith.
Removing secularism while retaining religious freedom may therefore leave an important constitutional gap. A government might claim to respect everyone’s private freedom of worship while simultaneously preferring one religion in public ceremonies, education, appointments, legislation or the allocation of State resources.
Fiji’s multi-faith character makes the distinction especially important. Christianity is the majority religion, particularly among indigenous Fijians. Fiji also contains substantial Hindu and Muslim communities, together with Sikhs, Baháʼís and citizens who profess no religion.
The real test of religious liberty is not whether the majority can worship freely. Majorities seldom need constitutional protection from themselves. The test is whether minorities, and those who reject religious belief, remain equal before a State influenced by the religion of the majority.
If the Commission does not propose a Christian State or any official religion, why remove the secular-State provision?
If it does propose a new constitutional relationship between Christianity and the State, it must say so directly rather than conceal the change behind a general promise of religious freedom.
The Commission’s proposal becomes still more sensitive because religious bodies are also contemplated as participants in the selection of the President. The removal of secularism and the constitutional elevation of religious organisations cannot be considered separately.
Together, they could shift the State from religious neutrality towards formal religious influence without expressly declaring an established religion.
That would be a profound constitutional change.
Restoring the Great Council of Chiefs but with what authority?
The restoration of the Great Council of Chiefs recognises an institution of immense historical and cultural importance to the iTaukei people. Its abolition by decree was deeply resented and its re-establishment by the present Government restored an institution that should never have been dismantled without consultation.
But cultural legitimacy does not by itself settle constitutional authority.
The Commission must distinguish the GCC’s role as the highest traditional consultative body of the iTaukei from the exercise of State power over all citizens. If the GCC nominates senators, participates in presidential selection or possesses a veto over legislation, the constitutional basis and limits of those powers must be clearly stated.
A democratic constitution can recognise indigenous institutions and protect iTaukei land, culture and customary authority without making citizens of other communities constitutionally subordinate. The real task is not to choose between indigenous recognition and common citizenship, but to design institutions in which both can coexist.
Separating FICAC investigation from prosecution is defensible but incomplete
The proposal that FICAC investigate corruption while the Office of the Director of Public Prosecutions conducts prosecutions is one of the Commission’s more defensible institutional recommendations.
Separating investigation from prosecution can provide an independent evidential assessment before charges are filed. It could reduce the danger of an investigative agency becoming institutionally committed to defending its own investigation and charging decisions.
It may also bring corruption prosecutions within a unified and professionally accountable prosecution service.
But the proposal creates its own questions. The DPP already carries an enormous criminal caseload. Complex corruption matters require specialist financial investigators, forensic accountants and prosecutors. Transferring prosecutions without transferring adequate expertise and resources could weaken enforcement rather than improve it.
The recent controversies surrounding FICAC demonstrate why concentration of investigative and prosecutorial authority can be dangerous. They also demonstrate why an unexplained transfer of power from one institution to another is not, by itself, reform.
The Public Service Commission’s restoration could repair fragmented accountability
Restoring a Public Service Commission with responsibility for the administration and personnel affairs of the civil service may reverse the highly centralised arrangements established after 2006.
A genuinely independent PSC can promote merit-based appointments, consistent disciplinary standards and protection against ministerial interference. But the identity of the appointing authority, security of commissioners’ tenure and transparency of senior appointments will determine whether it operates independently or merely transfers patronage to another body.
The Commission’s reference to oversight of “personal matters” presumably means personnel matters. The final text must define that jurisdiction carefully and distinguish policy responsibility, which belongs to elected ministers, from professional management of the civil service.
“Fijian” remains but the constitutional question is postponed
The Commission proposes retaining “Fijian” as the common national identity while recommending further consultation on whether the people wish to maintain it.
This is an attempt to avoid imposing an immediate answer upon one of Fiji’s most emotionally charged questions. That caution is understandable.
The common name “Fijian” was intended to express equal citizenship. But for many iTaukei, the term possesses an indigenous identity and historical meaning that cannot simply be reassigned by decree. Other citizens, meanwhile, must not be left constitutionally nameless or treated as permanent guests in the country of their birth.
A genuine consultative process could seek terminology that respects the indigenous ownership of identity while maintaining equal national citizenship. But it must not become a disguised referendum on whether non-iTaukei citizens belong equally to Fiji.
Consultation numbers do not by themselves establish popular consent
The Commission received 1,220 submissions: 832 individual and 388 joint submissions. Its face-to-face sessions attracted 3,873 people.
That represents substantial public participation. It does not, however, establish that every recommendation commands majority support.
A joint village, provincial or organisational submission may represent many people, but it may also have been formulated by a small leadership group. An individual submission may be carefully reasoned or may consist of a single demand.
A constitutional commission is not merely a post box. Its central duty is to reason publicly.
A Constitution delivered behind closed doors
The most immediate criticism concerns process.
The report and Draft Constitution Bill were handed to the President at State House without the media present. They have not been released. Cabinet is now expected to consider documents that would fundamentally restructure Parliament, the presidency, the public service, anti-corruption enforcement and the relationship between religion and the State.
That order is constitutionally unhealthy.
The people were asked to make submissions. They are now entitled to see what the Commission did with them before Cabinet selects, rejects or rewrites the recommendations.
The report should be released in full, together with the Draft Constitution Bill, explanatory notes, any dissenting opinions and a summary of the evidence received. Cabinet should not become the first substantive judge of a document supposedly derived from the people.
The Commission’s chairman, Sevuloni Valenitabua, describes the draft as “forward-looking” and responsive to Fiji’s multiracial character. Those claims must be tested against the actual text.
There is also unresolved confusion over whether the Commission has drafted an amendment to the 2013 Constitution, an entirely new Constitution, or an amendment Bill whose effect would be to replace most of the existing constitutional order. The legal route matters because the 2013 Constitution imposes demanding parliamentary and referendum requirements for constitutional amendment.
Political dissatisfaction with those requirements does not permit them to be ignored.
Reform cannot be founded upon another act of constitutional imposition
Several Commission proposals address genuine weaknesses in the 2013 settlement: excessive centralisation, the absence of an upper chamber, weak local representation, politicisation of public institutions and the concentration of investigative and prosecutorial power within FICAC.
But worthwhile objectives do not excuse defective design.
A 41-member elected House may be too small. A 19-member Senate may improve scrutiny or institutionalise patronage. A mixed electoral system may reconnect MPs to communities or manufacture parliamentary majorities. Restoring the Great Council of Chiefs may properly recognise indigenous authority or blur the boundary between cultural leadership and State power. Separating FICAC investigation from prosecution may strengthen accountability or produce delay and institutional conflict.
Most seriously, guaranteeing religious freedom while removing the secular State may sound reassuring, but it does not answer the constitutional question. Religious freedom protects belief. Secularism protects citizens from a government that prefers one belief over another.
Fiji has travelled too often from constitutional exclusion to constitutional imposition. The answer to the shortcomings of the 2013 Constitution cannot be another supreme law negotiated among political, chiefly and religious elites and presented to the people as a finished settlement.
Before Cabinet touches a single clause, the Commission’s complete report and Draft Constitution Bill must be published.
Only then can Fiji determine whether this is a genuinely forward-looking constitutional settlement or a return to old institutions carrying old dangers beneath new constitutional language.
Editorial note: This analysis is based on the recommendations disclosed by FijiVillage. The Constitution Review Commission’s full report and Draft Constitution Bill have not yet been made public. Our assessment, and our position on individual recommendations, may change once we have examined the complete documents, their precise wording and the Commission’s reasons.
- According to FijiVillage, the Commission proposes: a 41-member House of Representatives;
- 26 single-member constituencies elected by first-past-the-post voting;
- 15 seats allocated through proportional representation;
- an appointed or otherwise constituted 19-member Senate;
- no seats reserved for women or ethnic communities;
- a six-member Presidential Appointment Committee;
- restoration of the Bose Levu Vakaturaga, or Great Council of Chiefs;
- restoration of the Public Service Commission;
- retention, for the moment, of “Fijian” as the common national identity;
- continued constitutional protection for religious freedom, but removal of the provision declaring Fiji a secular State; and
- the confinement of FICAC to investigation, with corruption prosecutions transferred to the Office of the Director of Public Prosecutions.
The proposals deserve careful public examination. That examination cannot properly begin, however, when neither the Commission’s full report nor its Draft Constitution Bill has been released.
A smaller elected House but on what democratic calculation?
The proposed reduction of the elected House from the present 55 members to 41 requires a convincing explanation.
Fiji’s Parliament had 50 seats at the 2014 election, 51 in 2018 and 55 in 2022. The increases reflected the population-based formula contained in section 54 of the 2013 Constitution. The Electoral Commission has already determined that the next Parliament should remain at 55 seats.
The Review Commission now proposes reducing the number of elected representatives by fourteen, more than one-quarter of the existing House, while simultaneously creating a 19-member Senate.
The total legislature would therefore contain 60 members: 41 elected members in the lower House and 19 senators. Fiji would not necessarily obtain a cheaper or smaller Parliament. It would obtain a smaller directly elected chamber alongside a substantial upper chamber whose method of composition has not yet been disclosed.
That distinction matters.
A reduction in elected MPs means larger constituencies, fewer representatives available to individual citizens and potentially greater difficulty for outer islands, rural districts and dispersed communities to obtain effective representation. It could also strengthen the executive’s control over the elected House, particularly if a government secured a comfortable majority from a distorted first-past-the-post result.
The Commission must explain why 41 is the appropriate number. Was it derived from population, geography, provincial representation, international comparison, cost, administrative convenience or simply political compromise?
Without the report, the figure appears arbitrary.
The mixed electoral system may improve local accountability or manufacture majorities
The proposed electoral system combines 26 constituency seats elected under first past the post with 15 proportional-representation seats.
There is a respectable democratic case for abandoning Fiji’s present single nationwide constituency. Under the current system, voters across the country choose candidates from one national list. It gives every vote formally equal value but weakens the direct connection between an MP and a particular locality. Individual candidates also depend heavily upon the popularity of party leaders.
The proposed 26 constituencies could restore geographical representation and give citizens an identifiable local MP. That would be a genuine improvement if constituency boundaries were independently and fairly drawn.
But first past the post carries its own dangers. A party can win a constituency with considerably less than half of the vote where several candidates contest the seat. It can also secure a majority of constituency seats without winning a majority of votes nationally.
The 15 proportional seats might correct that distortion but only if they are genuinely compensatory.
The public needs to know whether the proportional seats would be allocated to ensure that each party’s total number of seats broadly corresponds with its national share of the vote. If the 15 seats are merely added independently to the 26 constituency results, the system could reward large parties twice: once through constituency victories and again through a party-list vote.
The Draft Constitution must therefore answer several essential questions: Will voters have one vote or two?
- Will the proportional seats compensate parties that are under-represented in the constituencies?
- Will there be an electoral threshold?
- Will party lists be open or closed?
- Who will draw the 26 constituency boundaries?
- How will malapportionment and political gerrymandering be prevented?
- How will maritime and geographically isolated communities be represented?
- Will independent candidates have any realistic access to the proportional tier?
The description “26 first-past-the-post seats plus 15 proportional seats” is not an electoral system. It is merely its outline.
No reserved seats: formal equality may not produce representative equality
The Commission has rejected reserved seats for women and ethnic groups and states that all seats will be open.
The decision against racial reservation is understandable. Fiji’s constitutional history demonstrates the danger of permanently organising political representation around ethnicity. Communal rolls helped entrench racial political identities and encouraged parties to mobilise voters as members of ethnic blocs rather than as citizens sharing common economic and social interests.
But the rejection of reserved seats for women requires separate analysis. Ethnic reservation and measures designed to remedy the chronic under-representation of women do not raise identical constitutional or historical considerations.
An open-seat system can be formally equal while continuing to favour established male candidates with party connections, financial resources and traditional authority. The Commission should disclose whether it considered party-list quotas, alternating male and female candidates, financial incentives for parties presenting balanced lists, or other less rigid mechanisms.
Simply declaring every seat “open” does not establish that every citizen has an equal practical opportunity to enter Parliament.
A 19-member Senate could provide scrutiny or become a house of political patronage
Restoration of the Senate deserves more than automatic rejection or nostalgic approval.
A properly designed upper chamber can review legislation, restrain hurried law-making, protect long-term constitutional interests and provide representation for regions and communities that may be overwhelmed in the elected House. Fiji’s recent experience of legislation being rushed through a single chamber strengthens the argument for institutional review.
But everything depends upon the Senate’s composition and powers.
Who will appoint the 19 senators? How many, if any, will be nominated by the Great Council of Chiefs, the Prime Minister, the Leader of the Opposition, religious organisations, provincial councils, women’s organisations, trade unions, professional bodies or minority communities?
Will senators possess an absolute veto over constitutional amendments? Will they merely delay ordinary legislation? Can they reject money bills? Will ministers be appointed from the Senate? Will Senate appointments be used to reward defeated candidates and political allies?
The restoration of a Senate is not intrinsically democratic. An unelected chamber can improve democratic government by imposing scrutiny upon the elected executive. It can equally become a repository for patronage and an instrument through which unelected interests frustrate the will of voters.
The proposed Senate cannot be evaluated merely by counting its 19 seats. Its legitimacy will depend on who fills them, who selects them, what interests they represent and what powers they exercise.
The Presidential Appointment Committee is already numerically unclear
The Commission proposes that the President be chosen by a six-member Presidential Appointment Committee. Yet the FijiVillage account identifies only five sources entitled to nominate candidates:
- the Great Council of Chiefs;
- the Prime Minister;
- the Leader of the Opposition;
- the Fiji Council of Churches; and
- an interfaith group.
Is each body nominating a person to serve on the committee, or merely submitting candidates for the presidency? Who appoints the sixth committee member? Who chairs the committee? What happens in the event of a three-three division? Is the committee’s decision final, or must Parliament confirm it?
There is also a broader constitutional issue. Giving both the Council of Churches and an interfaith organisation a formal role in selecting the Head of State sits uneasily beside the Commission’s assertion that religious freedom will remain equally guaranteed.
Religious organisations are entitled to participate in national debate. But constitutional participation is different from constitutional power.
If religious bodies are to be given a formal role in appointing the President, the Commission must explain why they are constitutionally privileged over organisations representing women, workers, universities, people with disabilities, youth, business, civil society or Fiji’s non-religious citizens.
Religious freedom without a secular State: protection or constitutional contradiction?
The most troubling recommendation is the proposed removal of Fiji’s declaration as a secular State while retaining a guarantee of religious freedom.
Section 4 of the 2013 Constitution does more than attach the word “secular” to the State. It states that religion and the State are separate; public office-holders must treat all religions equally; the State must not dictate religious belief; and government must not prefer or advance one religion over another or over non-religious belief.
Section 22 separately guarantees freedom of religion, conscience and belief, including the freedom to practise religion publicly or privately and the freedom not to be compelled to act contrary to one’s beliefs.
The two protections perform related but different functions.
Religious freedom protects the individual and the religious community. Secularism restrains the State. It prevents public power from being captured or constitutionally influenced by a dominant faith.
Removing secularism while retaining religious freedom may therefore leave an important constitutional gap. A government might claim to respect everyone’s private freedom of worship while simultaneously preferring one religion in public ceremonies, education, appointments, legislation or the allocation of State resources.
Fiji’s multi-faith character makes the distinction especially important. Christianity is the majority religion, particularly among indigenous Fijians. Fiji also contains substantial Hindu and Muslim communities, together with Sikhs, Baháʼís and citizens who profess no religion.
The real test of religious liberty is not whether the majority can worship freely. Majorities seldom need constitutional protection from themselves. The test is whether minorities, and those who reject religious belief, remain equal before a State influenced by the religion of the majority.
If the Commission does not propose a Christian State or any official religion, why remove the secular-State provision?
If it does propose a new constitutional relationship between Christianity and the State, it must say so directly rather than conceal the change behind a general promise of religious freedom.
The Commission’s proposal becomes still more sensitive because religious bodies are also contemplated as participants in the selection of the President. The removal of secularism and the constitutional elevation of religious organisations cannot be considered separately.
Together, they could shift the State from religious neutrality towards formal religious influence without expressly declaring an established religion.
That would be a profound constitutional change.
Restoring the Great Council of Chiefs but with what authority?
The restoration of the Great Council of Chiefs recognises an institution of immense historical and cultural importance to the iTaukei people. Its abolition by decree was deeply resented and its re-establishment by the present Government restored an institution that should never have been dismantled without consultation.
But cultural legitimacy does not by itself settle constitutional authority.
The Commission must distinguish the GCC’s role as the highest traditional consultative body of the iTaukei from the exercise of State power over all citizens. If the GCC nominates senators, participates in presidential selection or possesses a veto over legislation, the constitutional basis and limits of those powers must be clearly stated.
A democratic constitution can recognise indigenous institutions and protect iTaukei land, culture and customary authority without making citizens of other communities constitutionally subordinate. The real task is not to choose between indigenous recognition and common citizenship, but to design institutions in which both can coexist.
Separating FICAC investigation from prosecution is defensible but incomplete
The proposal that FICAC investigate corruption while the Office of the Director of Public Prosecutions conducts prosecutions is one of the Commission’s more defensible institutional recommendations.
Separating investigation from prosecution can provide an independent evidential assessment before charges are filed. It could reduce the danger of an investigative agency becoming institutionally committed to defending its own investigation and charging decisions.
It may also bring corruption prosecutions within a unified and professionally accountable prosecution service.
But the proposal creates its own questions. The DPP already carries an enormous criminal caseload. Complex corruption matters require specialist financial investigators, forensic accountants and prosecutors. Transferring prosecutions without transferring adequate expertise and resources could weaken enforcement rather than improve it.
- The Draft Constitution must also explain: whether FICAC can compel the DPP to decide within a specified period;
- whether the DPP must give reasons when declining a FICAC prosecution;
- whether FICAC can seek independent review of such a decision;
- how conflicts involving the DPP, ministers or constitutional office-holders will be managed; and
- whether specialist anti-corruption prosecutors will remain institutionally protected.
The recent controversies surrounding FICAC demonstrate why concentration of investigative and prosecutorial authority can be dangerous. They also demonstrate why an unexplained transfer of power from one institution to another is not, by itself, reform.
The Public Service Commission’s restoration could repair fragmented accountability
Restoring a Public Service Commission with responsibility for the administration and personnel affairs of the civil service may reverse the highly centralised arrangements established after 2006.
A genuinely independent PSC can promote merit-based appointments, consistent disciplinary standards and protection against ministerial interference. But the identity of the appointing authority, security of commissioners’ tenure and transparency of senior appointments will determine whether it operates independently or merely transfers patronage to another body.
The Commission’s reference to oversight of “personal matters” presumably means personnel matters. The final text must define that jurisdiction carefully and distinguish policy responsibility, which belongs to elected ministers, from professional management of the civil service.
“Fijian” remains but the constitutional question is postponed
The Commission proposes retaining “Fijian” as the common national identity while recommending further consultation on whether the people wish to maintain it.
This is an attempt to avoid imposing an immediate answer upon one of Fiji’s most emotionally charged questions. That caution is understandable.
The common name “Fijian” was intended to express equal citizenship. But for many iTaukei, the term possesses an indigenous identity and historical meaning that cannot simply be reassigned by decree. Other citizens, meanwhile, must not be left constitutionally nameless or treated as permanent guests in the country of their birth.
A genuine consultative process could seek terminology that respects the indigenous ownership of identity while maintaining equal national citizenship. But it must not become a disguised referendum on whether non-iTaukei citizens belong equally to Fiji.
Consultation numbers do not by themselves establish popular consent
The Commission received 1,220 submissions: 832 individual and 388 joint submissions. Its face-to-face sessions attracted 3,873 people.
That represents substantial public participation. It does not, however, establish that every recommendation commands majority support.
A joint village, provincial or organisational submission may represent many people, but it may also have been formulated by a small leadership group. An individual submission may be carefully reasoned or may consist of a single demand.
- Submissions must therefore be analysed qualitatively as well as counted. The Commission should publish a clear account showing: the principal questions placed before the public;
- the range of positions expressed;
- the number and geographical distribution of submissions;
- how joint submissions were authorised;
- the arguments accepted and rejected; and
- the Commission’s reasons for each major recommendation.
A constitutional commission is not merely a post box. Its central duty is to reason publicly.
A Constitution delivered behind closed doors
The most immediate criticism concerns process.
The report and Draft Constitution Bill were handed to the President at State House without the media present. They have not been released. Cabinet is now expected to consider documents that would fundamentally restructure Parliament, the presidency, the public service, anti-corruption enforcement and the relationship between religion and the State.
That order is constitutionally unhealthy.
The people were asked to make submissions. They are now entitled to see what the Commission did with them before Cabinet selects, rejects or rewrites the recommendations.
The report should be released in full, together with the Draft Constitution Bill, explanatory notes, any dissenting opinions and a summary of the evidence received. Cabinet should not become the first substantive judge of a document supposedly derived from the people.
The Commission’s chairman, Sevuloni Valenitabua, describes the draft as “forward-looking” and responsive to Fiji’s multiracial character. Those claims must be tested against the actual text.
There is also unresolved confusion over whether the Commission has drafted an amendment to the 2013 Constitution, an entirely new Constitution, or an amendment Bill whose effect would be to replace most of the existing constitutional order. The legal route matters because the 2013 Constitution imposes demanding parliamentary and referendum requirements for constitutional amendment.
Political dissatisfaction with those requirements does not permit them to be ignored.
Reform cannot be founded upon another act of constitutional imposition
Several Commission proposals address genuine weaknesses in the 2013 settlement: excessive centralisation, the absence of an upper chamber, weak local representation, politicisation of public institutions and the concentration of investigative and prosecutorial power within FICAC.
But worthwhile objectives do not excuse defective design.
A 41-member elected House may be too small. A 19-member Senate may improve scrutiny or institutionalise patronage. A mixed electoral system may reconnect MPs to communities or manufacture parliamentary majorities. Restoring the Great Council of Chiefs may properly recognise indigenous authority or blur the boundary between cultural leadership and State power. Separating FICAC investigation from prosecution may strengthen accountability or produce delay and institutional conflict.
Most seriously, guaranteeing religious freedom while removing the secular State may sound reassuring, but it does not answer the constitutional question. Religious freedom protects belief. Secularism protects citizens from a government that prefers one belief over another.
Fiji has travelled too often from constitutional exclusion to constitutional imposition. The answer to the shortcomings of the 2013 Constitution cannot be another supreme law negotiated among political, chiefly and religious elites and presented to the people as a finished settlement.
Before Cabinet touches a single clause, the Commission’s complete report and Draft Constitution Bill must be published.
Only then can Fiji determine whether this is a genuinely forward-looking constitutional settlement or a return to old institutions carrying old dangers beneath new constitutional language.
Editorial note: This analysis is based on the recommendations disclosed by FijiVillage. The Constitution Review Commission’s full report and Draft Constitution Bill have not yet been made public. Our assessment, and our position on individual recommendations, may change once we have examined the complete documents, their precise wording and the Commission’s reasons.
A Constitution Belongs to the People: Why the CRC Report Must Not Remain Behind Closed Doors
The Constitution Review Commission invited the people of Fiji to participate in shaping their supreme law. Natural justice and elementary democratic fairness now demand that those participants be allowed to discover whether their views and submissions found a place in the final report or why the Commission rejected them. Fiji has already witnessed what happens when a people’s draft constitution is treated as the property of those holding political power.
The Constitution Review Commission’s report and Draft Constitution Bill have been delivered to President Ratu Naiqama Lalabalavu, but neither document has been released to the public.
The Constitution Review Commission’s report and Draft Constitution Bill have been delivered to President Ratu Naiqama Lalabalavu, but neither document has been released to the public.
The media was not invited to witness the handover at State House. Cabinet will now examine proposals capable of fundamentally restructuring Parliament, restoring the Senate and the Great Council of Chiefs, changing the method of appointing the President, dividing responsibility between FICAC and the Director of Public Prosecutions, and removing the constitutional declaration that Fiji is a secular State.
That is not a healthy beginning to constitution-making.
Consultation becomes an empty ritual if the people are invited to speak but are then denied access to the document produced in their name.
The warning from the Ghai Commission
There is no suggestion that the present Government intends to repeat what happened to the 2012 Constitution Commission chaired by Professor Yash Ghai. But Fiji’s experience with the Ghai Draft demonstrates why constitutional reports must not be kept within government circles after commissioners have completed their work.
The Ghai Commission received approximately 7,000 submissions from the people of Fiji. Those citizens spoke in the belief that their views would help shape the constitutional order under which Fiji would return to elected government.
Yet, in December 2012, police seized approximately 600 printed copies of the Commission’s Draft Constitution from a Suva printer. Proof copies were shredded, soaked in kerosene and burned in Professor Ghai’s presence.
Ghai regarded the destruction not simply as an attack upon his Commission’s work but as an expression of contempt for the thousands of people who had participated in the process. The remaining printed copies were removed, the Commission’s draft was subsequently rejected, and the military-backed Government produced the document that became Fiji’s 2013 Constitution.
The people had been consulted. Their Commission had completed its work. But those exercising State power decided that they would control what the people were permitted to read.
For the first time, Fijileaks can reveal how the suppressed Draft Constitution reached us.
After hurriedly leaving Fiji and landing in Hong Kong while travelling onwards to Kenya, Professor Yash Ghai, fellow Oxford alumnus, friend, and academic colleague in the study of politics, race, conflict and constitutionalism in Fiji and Kenya, concluded that Fijileaks was the only platform through which the Draft Constitution could safely be placed before the people of Fiji. We had appeared together on British television and delivered a joint lecture at Chatham House in London, along with our dear and near old friend, the late Kenneth Bain, author of Treason at Ten, explaining and interpreting Sitiveni Rabuka’s 1987 coups and their far-reaching implications for race, politics, conflict and constitutionalism in Fiji.
He entrusted the document to Fijileaks because he understood a fundamental constitutional principle: the Draft did not belong to the military Government, the police, the President, the commissioners or Professor Ghai personally.
It belonged to the PEOPLE OF FIJI, whose submissions, experiences, fears, hopes and competing visions had helped to produce it.
Fijileaks published the document so that the citizens in whose name it had been prepared could read it, debate it and decide its merits for themselves.
That act was not intended to substitute Fijileaks’ judgment for that of the people. It was intended to restore to the people a document that should never have been withheld from them.
Cabinet should not see it first
The lesson for the present CRC process is straightforward.
Consultation cannot end when the commissioners enter State House. The people who supplied the submissions are entitled to see how their views were interpreted, accepted, modified or rejected before Cabinet selects which recommendations it prefers.
Cabinet must not enjoy privileged access to the CRC report while the public and the media are left to reconstruct Fiji’s possible constitutional future from fragments disclosed during a closed handover ceremony.
The order of disclosure matters.
If Cabinet examines the documents first, it may decide to accept some recommendations, reject others or alter the Draft Constitution Bill before the public sees the Commission’s original work. When the documents are eventually released, citizens may be unable to distinguish between what the independent Commission recommended and what Cabinet subsequently changed.
The complete and unaltered report must therefore be published before Cabinet begins reshaping it.
Release both publicly funded reports
That Commission recommended a markedly different electoral model: 25 open constituency seats, 25 seats reserved for women and 21 proportional open-list seats, producing a 71-member elected Parliament.
The CRC proposes a 41-member elected House and a 19-member Senate.
The people cannot fairly compare those competing models while both reports remain outside their reach.
Fiji’s taxpayers financed the two exercises. Fiji’s citizens supplied the submissions. Government does not acquire ownership of the reports merely because the documents were formally delivered to an Attorney-General, Cabinet or President.
Constitutional authority begins with informed consent
A constitution is not an ordinary government policy document. It establishes the institutions through which governments are elected, restrained and removed. It distributes public power and protects citizens against its misuse.
Its legitimacy cannot rest solely upon the expertise of commissioners, foreign advisers, legal drafters, ministers or Cabinet.
It must rest upon the informed consent of the people.
That consent cannot be informed if the people are denied access to the document upon which they are eventually expected to vote.
Nor should the Government argue that the report must remain confidential while Cabinet considers it. Confidentiality may sometimes be justified while commissioners deliberate. It becomes much harder to defend after the final report has been completed and formally delivered.
At that point, the Commission’s work has ended. The document becomes part of the public constitutional process.
That is not a healthy beginning to constitution-making.
Consultation becomes an empty ritual if the people are invited to speak but are then denied access to the document produced in their name.
The warning from the Ghai Commission
There is no suggestion that the present Government intends to repeat what happened to the 2012 Constitution Commission chaired by Professor Yash Ghai. But Fiji’s experience with the Ghai Draft demonstrates why constitutional reports must not be kept within government circles after commissioners have completed their work.
The Ghai Commission received approximately 7,000 submissions from the people of Fiji. Those citizens spoke in the belief that their views would help shape the constitutional order under which Fiji would return to elected government.
Yet, in December 2012, police seized approximately 600 printed copies of the Commission’s Draft Constitution from a Suva printer. Proof copies were shredded, soaked in kerosene and burned in Professor Ghai’s presence.
Ghai regarded the destruction not simply as an attack upon his Commission’s work but as an expression of contempt for the thousands of people who had participated in the process. The remaining printed copies were removed, the Commission’s draft was subsequently rejected, and the military-backed Government produced the document that became Fiji’s 2013 Constitution.
The people had been consulted. Their Commission had completed its work. But those exercising State power decided that they would control what the people were permitted to read.
For the first time, Fijileaks can reveal how the suppressed Draft Constitution reached us.
After hurriedly leaving Fiji and landing in Hong Kong while travelling onwards to Kenya, Professor Yash Ghai, fellow Oxford alumnus, friend, and academic colleague in the study of politics, race, conflict and constitutionalism in Fiji and Kenya, concluded that Fijileaks was the only platform through which the Draft Constitution could safely be placed before the people of Fiji. We had appeared together on British television and delivered a joint lecture at Chatham House in London, along with our dear and near old friend, the late Kenneth Bain, author of Treason at Ten, explaining and interpreting Sitiveni Rabuka’s 1987 coups and their far-reaching implications for race, politics, conflict and constitutionalism in Fiji.
He entrusted the document to Fijileaks because he understood a fundamental constitutional principle: the Draft did not belong to the military Government, the police, the President, the commissioners or Professor Ghai personally.
It belonged to the PEOPLE OF FIJI, whose submissions, experiences, fears, hopes and competing visions had helped to produce it.
Fijileaks published the document so that the citizens in whose name it had been prepared could read it, debate it and decide its merits for themselves.
That act was not intended to substitute Fijileaks’ judgment for that of the people. It was intended to restore to the people a document that should never have been withheld from them.
Cabinet should not see it first
The lesson for the present CRC process is straightforward.
Consultation cannot end when the commissioners enter State House. The people who supplied the submissions are entitled to see how their views were interpreted, accepted, modified or rejected before Cabinet selects which recommendations it prefers.
Cabinet must not enjoy privileged access to the CRC report while the public and the media are left to reconstruct Fiji’s possible constitutional future from fragments disclosed during a closed handover ceremony.
The order of disclosure matters.
If Cabinet examines the documents first, it may decide to accept some recommendations, reject others or alter the Draft Constitution Bill before the public sees the Commission’s original work. When the documents are eventually released, citizens may be unable to distinguish between what the independent Commission recommended and what Cabinet subsequently changed.
The complete and unaltered report must therefore be published before Cabinet begins reshaping it.
Release both publicly funded reports
- The Government should immediately publish: the complete CRC report;
- the Draft Constitution Bill;
- its explanatory material;
- any dissenting or separate opinions;
- the principal supporting annexures;
- electoral calculations and simulations; and
- a reasoned summary showing how the Commission treated the principal public submissions.
That Commission recommended a markedly different electoral model: 25 open constituency seats, 25 seats reserved for women and 21 proportional open-list seats, producing a 71-member elected Parliament.
The CRC proposes a 41-member elected House and a 19-member Senate.
The people cannot fairly compare those competing models while both reports remain outside their reach.
Fiji’s taxpayers financed the two exercises. Fiji’s citizens supplied the submissions. Government does not acquire ownership of the reports merely because the documents were formally delivered to an Attorney-General, Cabinet or President.
Constitutional authority begins with informed consent
A constitution is not an ordinary government policy document. It establishes the institutions through which governments are elected, restrained and removed. It distributes public power and protects citizens against its misuse.
Its legitimacy cannot rest solely upon the expertise of commissioners, foreign advisers, legal drafters, ministers or Cabinet.
It must rest upon the informed consent of the people.
That consent cannot be informed if the people are denied access to the document upon which they are eventually expected to vote.
Nor should the Government argue that the report must remain confidential while Cabinet considers it. Confidentiality may sometimes be justified while commissioners deliberate. It becomes much harder to defend after the final report has been completed and formally delivered.
At that point, the Commission’s work has ended. The document becomes part of the public constitutional process.
No submission and no bitterness
For the avoidance of doubt, I neither made a submission to the Constitution Review Commission nor received any personal invitation from the Fiji Government or the CRC to contribute to its deliberations.
That absence does not disqualify me from examining the recommendations now entering the public domain. Nor should my criticism of the secrecy surrounding the report be misrepresented as bitterness at having been excluded.
I did not seek appointment to the Commission, an advisory role or any privileged access to its work. My interest arises from more than four decades of reporting, researching and writing about Fiji’s politics, coups, racial conflict and constitutional development, and from the obligations of an editor to scrutinise proposals that would redefine the relationship between the State and its citizens.
The issue is not whether I was consulted. It is whether the people who were consulted can now see what was done with their submissions.
My call for publication would be exactly the same had I been invited to participate. Constitutional criticism is not an application for recognition, nor is disagreement evidence of personal grievance. It is part of the democratic scrutiny that a legitimate constitution-making process should welcome rather than resent.
For the avoidance of doubt, I neither made a submission to the Constitution Review Commission nor received any personal invitation from the Fiji Government or the CRC to contribute to its deliberations.
That absence does not disqualify me from examining the recommendations now entering the public domain. Nor should my criticism of the secrecy surrounding the report be misrepresented as bitterness at having been excluded.
I did not seek appointment to the Commission, an advisory role or any privileged access to its work. My interest arises from more than four decades of reporting, researching and writing about Fiji’s politics, coups, racial conflict and constitutional development, and from the obligations of an editor to scrutinise proposals that would redefine the relationship between the State and its citizens.
The issue is not whether I was consulted. It is whether the people who were consulted can now see what was done with their submissions.
My call for publication would be exactly the same had I been invited to participate. Constitutional criticism is not an application for recognition, nor is disagreement evidence of personal grievance. It is part of the democratic scrutiny that a legitimate constitution-making process should welcome rather than resent.
From Fijileaks Archive, 2012 and 2013
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Prime Minister, Sitiveni Rabuka will now table the Constitution Review Commission Report and Draft Constitution Bill in Cabinet for deliberation before it proceeds to Parliament in accordance with the appropriate constitutional and Government processes.
Acting Attorney General, Siromi Turaga says it is important to clarify the process following today’s submission, particularly in light of misinformation and speculation surrounding the report.
Turaga says the submission of the report marks the completion of the Commission’s mandate and does not mean that the recommendations contained in the report or the Draft Constitution had been adopted or approved by the Government.
Turaga says the report represents the independent work of the Constitutional Review Commission following an extensive nationwide consultation process.
He says it must now go through the appropriate Government processes before any further decisions are made.
The Acting Attorney General says the report cannot be released publicly at this stage and will be made available to the public in due course, following Cabinet deliberation and once the appropriate process has been completed.
Turaga acknowledged the commitment and work of the Commissioners and staff members throughout the review process.
He also acknowledged the contribution of constitutional and legislative experts who supported the Commission’s work, including Professor Anthony Regan, Dr Kathrene Le Roy and Fiona Leonard.
Turaga urges the public and all stakeholders to refrain from speculation about the contents of the report or its possible outcomes until it has been properly considered. Source: Fijivillage News.
Acting Attorney General, Siromi Turaga says it is important to clarify the process following today’s submission, particularly in light of misinformation and speculation surrounding the report.
Turaga says the submission of the report marks the completion of the Commission’s mandate and does not mean that the recommendations contained in the report or the Draft Constitution had been adopted or approved by the Government.
Turaga says the report represents the independent work of the Constitutional Review Commission following an extensive nationwide consultation process.
He says it must now go through the appropriate Government processes before any further decisions are made.
The Acting Attorney General says the report cannot be released publicly at this stage and will be made available to the public in due course, following Cabinet deliberation and once the appropriate process has been completed.
Turaga acknowledged the commitment and work of the Commissioners and staff members throughout the review process.
He also acknowledged the contribution of constitutional and legislative experts who supported the Commission’s work, including Professor Anthony Regan, Dr Kathrene Le Roy and Fiona Leonard.
Turaga urges the public and all stakeholders to refrain from speculation about the contents of the report or its possible outcomes until it has been properly considered. Source: Fijivillage News.
