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“Fiji’s cancerous 2013 Constitution” (ed.in FT 9/11/2019)

09/11/2019

Fiji’s cancerous 2013 Constitution (appeared in FT 9/11/2019 as “Fiji’s Constitutional Conundrum”)

 

Biological cancers can fester with no visible symptoms, until death occurs.

While a society cannot ever die, constitutional cancers do show symptoms, such as the abject failure to treat all citizens equally before the law.

Several recent symptoms  include the following: an alleged assault of an Opposition Member of Parliament by the Prime Minister and its supposed “resolution” by the Privileges Committee of Parliament effectively punishing the alleged victim; a call by the President of the Fiji Law Society that the laws of Fiji should apply equally to all,  a complaint by an MP that the single electoral system did not make for an accountable democracy, and a statement by the Prime Minister calling on all Fijians to celebrate the sixth anniversary of the “signing” of “our” constitution.

The unifying theme to all these symptoms is that the 2013 Constitution was imposed on all Fiji, without parliamentary participation or approval.

This new constitution removed the Upper House “checks and balances” that had prevailed under the 1997 Constitution, its electoral system has resulted in large numbers of Government Members of Parliament with minimal votes and weak social legitimacy and accountability, and there are fundamental immunity provisions that essentially declare, for totally unspecified crimes, that “all are not equal before the law”.

What Fiji ought to be asking is that in contrast to the renaissance which took place after the 1987 coup, where is the social movement to reform today’s imposed constitution, however painful that challenge may be?

An alleged assault unfairly resolved

When Opposition MP (Pio Tikoduadua) complained to the police that he had been allegedly assaulted by the Prime Minister (Bainimarama) with a video recording to back his allegation, the matter was not taken up by the police or the Director of Public Prosecutions of the Human Rights and Anti-Discrimination Commission, but by the Speaker of the House (Ratu Epeli Nailatikau) who merely referred the complaint to the Parliamentary Privileges Committee.

This Committee, totally an unacceptably dominated by government MPs, decided that both MPs should apologize to each other or face six months’ suspension from parliament.

The Prime Minister apologized for his words and actions (implicitly admitting wrongdoing) and no action was taken against him.  But MP Tikoduadua, who refused to apologize stating that he had done no wrong, was suspended by the Parliamentary Privileges Committee for six months.

How can the laws of Fiji (and the 2013 Constitution) allow the police, the Director of Public Prosecutions and Director of HRADC to not follow up on an alleged crime, the alleged victim is punished while the alleged perpetrator gets off scot free?

I remind that the Speaker of the House (a former Commander of the RFMF) is also the former President of Fiji appointed after the 2006 military coup, who “signed into law” the 2013 Constitution, under which the police and all state apparatus, including Parliamentary Privileges Committee operate.

A symptom of the deep-seated political malaise today, the Leader of the Opposition (Sitiveni Rabuka), also a former Commander of the RFMF and leader of the 1987 coup, merely called for “reconciliation” between Bainimarama and Tikoduadua.

A previous Clerk to Parliament (Mary Chapman) bravely pointed out the similarly contradictory treatment of three other Opposition MPs by the Privileges Committee of Parliament for relatively minor alleged infringements:  MP Ratu Naiqama Lalabalavu was suspended for two years for an alleged slur against the previous Speaker of the House at a political gathering; MP Tupou Draunidalo was suspended for two years (and eventually resigned) for calling a Government Minister a “fool”; and MP Tikoca was suspended for two years for complaining about the alleged high number of Muslim officials serving in senior positions I the Bainimarama Government.

Any objective outside observer can note that if the 2013 Constitution does not even ensure that elected Members of Parliament are treated equally under the law, how could  ordinary people be treated equally under the law.

The Fiji Law Society and immunity provisions of the 2013 Constitution

The President of the Fiji Law Society (Laurel Vaurasi) has used the Tikoduadua example to demand that all citizens of Fiji should be treated equally before the law.

I suggest that the Fiji Law Society ought to be asking a far more fundamental constitutional question: why is there an entire Chapter 10 of the 2013 Constitution which has not approved by any parliament, devoted to “immunity” to a whole range of persons, for crimes not even specified?

Thus Clause 154 states that

Absolute and unconditional immunity is irrevocably granted to any person holding the office of the President; Prime Minister and Cabinet Ministers; Republic of Fiji Military Forces; Fiji Police Force; Fiji Corrections Service; Judiciary; public service; and any public office, from any criminal prosecution and from any civil or other liability in any court, tribunal or commission, in any proceeding including any legal, military, disciplinary or professional proceedings and from any order or judgment of any court, tribunal or commission, as a result of any direct or indirect participation, appointment or involvement in the Government from 5  December 2006 to the date of the first sitting of the first Parliament elected after the commencement of this Constitution.

Contrary to popular perceptions, the immunity provisions stretch even further back than the 2006 military coup.

Clause 153 states that the immunity granted by the Bainimarama Military Government under the Limitation of Liability for Prescribed Political Events Decree 2010 and also “signed” into law by President Iloilo without any parliamentary approval

“shall, in its entirety, continue in existence and shall not be reviewed, amended, altered, repealed or revoked by Parliament  [such that] “absolute and unconditional immunity is irrevocably granted to all prescribed persons from any criminal prosecution” including the President himself, the military, police, prisons and all those with Bainimarama during the 2000 coup and 2000 mutiny.

 Interestingly, Clause 155 of the 2013 Constitution continues the immunity provisions of Chapter XIV of the 1990 Constitution (imposed by the unelected Rabuka Government) which had been continued in the 1997 Constitution which had been approved by the elected Parliament of 1997.

Given that the essence of any “immunity” is that the law will not apply equally to all who are allegedly granted that immunity, should not the Fiji Law Society be asking whether the immunity provisions of the 2013 Constitution which has not been approved by any parliament, can have any international legitimacy?

Does the 2013 Constitution have legitimacy?

While Prime Minister Voreqe Bainimarama has been reported as saying that “the signing of our Constitution was the culmination of hopes and dreams Fijians had held for generations” the facts are that the people of Fiji have never approved the 2013 Constitution and neither did they ever approve the purported abrogation of the legitimate 1997 Constitution.

Justice Anthony Gates, Chief Justice under the Bainimarama Government, once gave the following ringing endorsement of the lawful 1997 Constitution and the illegitimacy of those who purport to abrogate it:

“It is not possible for any man to tear up the Constitution. He has no authority to do so. The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji … The fundamental law represented in a Constitutional document may only be changed in accordance with that Constitution….  Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. … [but] the courts cannot pronounce lawfulness based simply on the will of the majority. … and the courts will not assist usurpers simply because they are numerous, powerful, or even popular”. [In Koroi v Commissioner of Inland Revenue [2001] FJHC 138, pp 10-11. Quoted by Margaret Twomey (2009) 83 ALJ 319.]

It is now a moot point that the Bainimarama Government rejected the Yash Ghai Draft Constitution which had been formulated after widespread national consultation by a Commission established by the Bainimarama Government itself.

[Readers  might wish to examine the specific conditions under which the Ghai Draft Constitution gave immunity, and ponder on why those who claim immunity today (or will one day) would not wish to satisfy those immunity conditions].

The fact remains that the 2013 Constitution was formulated behind closed doors by unknown persons, with no approval by any elected parliament and merely “signed into law” by the same President Nailatikau, who as Speaker of the current Parliament is presiding over the unjust treatment of Opposition MPs supposedly under the constitution he himself “signed” into existence (whatever that means).

Fundamental questions for Fiji Law Society?

It is astonishing to me that the esteemed  lawyers and judges of Fiji who are responsible for administering the laws of Fiji have never publicly debated a  number of very fundamental questions about the 2013 Constitution, including its immunity provisions.

  1. Can immunity be granted to the very people who created that constitution and “signed” it into law without any parliamentary approval?

  1. Can a constitution bind not just the current parliament, but all future parliaments, as in Chapter 11 of the 2013 Constitution, Clause 158 states that “Notwithstanding anything contained in this Constitution, this Chapter and any immunity granted or continued in this Chapter shall not be reviewed, amended, altered, repealed or revoked…. no court or tribunal shall have the jurisdiction to accept, hear or make any decision or order with respect to any challenge against the provisions of this Chapter and any immunity granted or continued in this Chapter…. No compensation shall be payable by the State to any person in respect of damage, injury or loss to his property or person caused by or consequent upon any conduct from which immunity has been granted under this section.”

  1. Can a constitution deny natural justice to those who signed contracts in good faith, such as FNPF pensioners whose pensions were forcibly reduced by decree and who case was being heard in the Fiji courts? Clause 170 states that no court shall “accept, hear or determine any proceedings which had been terminated under the Administration of Justice Decree 2009 or any other written law” such as the Burness/Shameem FNPF case thereby denying legal natural justice to FNPF pensioners whose pensions were forcefully and illegally reduced by military decrees.

  1. Can any constitution grant immunity from prosecution for the death of citizens, who must be presumed innocent until proven guilty?

  1. Can a Constitution require conditions for amendment which were never required for its approval in the first place? Clause 159 and 160 states that the 2013 BKC may only amended (and no other way) by way of a Bill which is approved by three quarters of the Parliament, following which it must be approved in a referendum by three quarters of Fiji’s registered voters.

Where are our social activists?

Once upon a time, when the post 1987 coup military government of Rabuka had imposed the 1990 Constitution on Fiji, NGOs like Citizens Constitution Forum, with the full and active support of many university academics, organized opposition and public protests, discussions and dialogue between the political parties existing then, and a revised 1997 Constitution was approved by an elected parliament.

Where are today’s activists who can rise to the challenge and initiate a social movement to reform Fiji’s 2013 constitution with popular approval through a referendum, so that all are treated equally before the law?

Failure to address this most fundamental cancer at the heart of Fiji’s laws, sadly means that month after month, year after year, similar incidents will keep emerging and society will keep tinkering at the edges, with no long lasting resolution.

Postscript 1

It is ironic indeed that just this week a high level Fiji Government delegation  went to Geneva to justify their record on human rights with wonderful sounding rhetoric.

The glorious statements by DDP Christopher Pryde,Director HRADC Ashwin Raj, and Ambassador to Geneva Nazhat Shameem (former High Court Judge) were totally at odds with  their adamant refusal to implement the protection of human rights to life (from the 2000 coup and mutiny onward), that their tax-payer funded salaries requires them to do, as core responsibilities of their high offices.

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