THE PEOPLE

We are Fijian: iTaukei and all others who have come to make their home in these islands.

Preamble

The people of any country are its strength. Most of them will have citizenship (nationality) of the country. The Draft Constitution follows earlier constitutions in providing who is a citizen or can become a citizen, but most of the detail is in Schedule 1. The provisions from the Citizenship Decree are included, and the main points are: • most children born in Fiji are citizens • those born overseas are entitled to be registered as Fiji citizens if either parent was a citizen • it is possible for a person to be a citizen of Fiji and of another country • a person who is married to a Fiji citizen can become a citizen • a person who has lived in the country lawfully for 5 out of the last 10 years can apply to be a citizen – but has no right to insist • a child who is abandoned, without any information about their nationality or parents is assumed to be a Fiji citizen, provided they seem to be under 14 (the 1997 Constitution seems to have allowed this until the child was 21 but this was unusual).

BOSE LEVU VAKATURAGA

For many iTaukei the Great Council of Chiefs is an important institution. Some, it is true, said it should be abolished. But very many said they wanted it restored, and many people from other communities also mentioned it. But many submissions said that it should not have a political role. The Commission has tried to respond to these wishes by recognising the BLV as a civil society organisation, not a political body. The Draft Constitution says: • The BLV is “a custodian of iTaukei culture and traditions”;• Its role is [to] promote wider understanding of iTaukei culture traditional values, promote those values, and advise the government; • But it must do so in a way that is “consistent with  the multicultural character of Fiji”.

MEDIA

There is a detailed treatment of the freedom of expression in the Bill of Rights (Article 27) which includes “freedom of the press, including print, electronic and other media”. In Chapter 4 there is also a separate provision on the Media (Article 57) which says: • Licensing (that is not allowing media to publish without government permission) is not allowed, except for the need to regulate the use of radio frequencies etc.• Even for that limited purpose, licencing must not be controlled by government, political interests or commercial interests to prevent suppression of opposition, other political views or rival commercial concerns.• State media must not be controlled and must be impartial, and allow a wide range of views to be expressed. • There must be an independent public body, created by law, to regulate media
standards. The Draft Constitution also says that all political parties and candidates must have equal chances to appear on private or state broadcasting media (Article 60). It would also repeal many of the provisions of the “Media Decree” (Schedule 7).

NO MORE COUPS?

…any attempt to establish a government other than in compliance with this Constitution is unlawful Article 2(3)9a)

A coup is illegal and there is never any justification for a coup in a democratic society. A coup overthrows the constitution: even if some provisions are still said to be respected, this is just by wish of the coup makers. You might, however, think that saying in a Constitution that there must not be coups is about as useful as saying that no-one must break the law – which by itself would have no effect.

The Commission was frequently asked whether or how a constitution can prevent coups. Some made suggestions such as the constitution should prohibit coups, the abolition of the armed forces (since Fiji has no enemies), deploying the forces to protect Fiji’s maritime resources, storing weapons in Australia to be picked up as Fijian soldiers go abroad as peace keepers, active recruitment of soldiers from all communities, public awareness of the harms of coups, social policies based on equity, harmonious relations between ethnic communities, and economic development. A few recommended that sanctions by the
UN and the South Pacific should kick in as soon as a coup happens and that all Fijian peace keepers should be sent home immediately. Some suggested severe penalties for coup makers (including disqualification from public office and the death penalty). Some people cautioned that in all coups the military was used by other interests: politicians, business people, chiefs—which makes it harder to predict or prevent coups. So there are no simple solutions. Why do coups happen? There must be a military willing, and able, to conduct the coup, and there is usually some situation within the country or the government that gives the willing military the opening or excuse, or that persuades the military to step in. As submissions to the Commission noted, in Fiji there has always been a third factor: behind the scenes actors who use, manipulate or persuade the military to take action. And other national and international factors may be relevant. In most democracies, the military does not take over in times of crisis. This requires a military that takes pride in its role as defender of the country against outside attack, and accepts that role as one of being subordinate to the civilian government, however frustratingly incompetent, ineffective or even corrupt that government may appear to the military.
The Commission knows that a constitution on its own cannot prevent coups. But it believes that in a vigorous democracy in which citizens participate in decision making and value their democratic institutions coups are less likely. So the Commission has paid special attention to
the institutions that foster the conditions that strengthen democracy. The emphasis on public participation is particularly important as it means that all citizens can contribute to decision making and provides opportunities for citizens to build and protect democracy. If they are respected and protected by the people, all the provisions in the Draft Constitution concerned with good governance, integrity, preventing corruption will not only deepen democracy but discourage coups.

The Draft Constitution is emphatic that coups are illegal and says:• trying to establish a government except in the ways the Constitution provides for is unlawful (Article 2(3)) • no immunity can be granted for any future coups. Those who were involved in coups should be given life sentences.There will always be coups in Fiji– members of the public to the Commission. And it emphasises that the military does not have any role as a guardian of the Constitution or conscience of the nation.
In Article 176 the Draft Constitution:• makes it clear that the military is under civilian control • sets out the role of the military: it is responsible for the defence and protection of the sovereignty and territorial integrity of the country from external threats at the request of the government (Article 176 (1)(a)) • states that Parliament (or the Cabinet if Parliament is not in session) must approve use of the forces outside the country, and that the Minister responsible for defence directs that use, in accordance with decisions of Parliament • states that action by the military in Fiji in an emergency is at the direction of the National Security Council, and in other situations only after a written request from the Commissioner of Police, with the approval in advance of the Minister responsible for defence. In addition, the Draft Constitution: • does not give to the President any role in relation to the military because it is the democratically elected government that must direct the military • states that members of the security services must not obey manifestly illegal orders (Article 173 (4)). The prohibition on obeying manifestly illegal orders applies to all security forces: the police or prison officers must not obey orders to commit torture, for example. But it is of particular relevance to the military, especially in a country with a record of coups. Although soldiers and other disciplined forces are trained to obey orders, they must not use “superior orders” as an excuse for behaviour that they knew was clearly wrong (“manifestly” means “very clearly”). This includes carrying out a coup. This provision reinforces the signal to the military that coups in future are not to be tolerated.

CHANGING THE CONSTITUTION

The Commission has tried to achieve this by providing: • the fundamental values, the provisions on religion and on citizenship or the human rights provisions must never be taken away • the provisions about a new electoral system and the fixed term for Parliament cannot be changed until there have been at least two elections under the new system, so that it has been properly tested • changes to the Constitution cannot be rushed: a period of 6 months must pass between the first vote in Parliament and the final vote, so that MPs have a good chance to understand and discuss it and the public can be fully aware of it, discuss it and make their inputs • any proposal for change cannot be discussed in Parliament at all unless it has gone to the National People’s Assembly (see the discussion earlier) which will discuss it and can pass a resolution approving it or disapproving; this does not decide the matter but Parliament should take it seriously •any change needs the support of at least 48 members of Parliament (two-thirds of the full Parliament).