And so what many people in Fiji suspected might happen has happened. The Draft Constitution prepared by Professor Yash Ghai’s Constitutional Commission has been altered before it reaches the Constituent Assembly. Its members – when they are announced – will still decide the final Constitution document but within a much narrower framework than Professor Ghai and his team envisaged. How has it come to this? Why is the Bainimarama Government taking some provisions of the Draft and referring them to the Constituent Assembly and not others? What does it all mean for the only thing that really matters – the introduction of a genuine democracy in Fiji in 2014? These are questions that much of the country will be asking as Fijians contemplate the events of Thursday evening – the unprecedented back-to-back statements by the President, Ratu Epeli Nailatikau, and the Prime Minister, Voreqe Bainimarama.
Some, of course, will accuse the Government of disregarding the advice of the constitutional referee it appointed because what he came up with didn’t suit its purposes. Others who appeared before the Commission or lodged submissions will be aggrieved that the views they expressed are being ignored. Yet as the Bainimarama Government sees it, there are sound reasons for it to take the course it has and also to be aggrieved about many of the provisions of the document bequeathed to the nation by Professor Ghai and his fellow Commissioners.
Right from the outset, the Government was looking for a simple, straightforward constitution that established a workable, sustainable democratic model based on the principle of equal votes of equal value. It would be the first genuine democracy in Fiji’s history. And the Government wanted Parliament to be the sole and supreme authority in the country. It would be made up of people who contested the 2014 election and won their seats fair and square in a clean contest. From among these individuals, a government would be formed and preferably one that was much smaller than the 71 seats that the Ghai Commission has recommended. Even if that figure was reduced to 51 seats, Fiji would still have more MPs per head of population than New Zealand. So why on earth would a developing country with scarce resources require such a big parliament?
The Government also envisaged right from the start that a leaner parliament would also be the real power in the country, its authority supreme and uncontested. What did we get instead? Layers of power and influence involving far too many people who are unelected and not accountable to the Fijian people. In the case of the 144 member National People’s Assembly, 72 of these would be “civil society” representatives, including many NGOs who receive their principal funding from overseas. And under the Ghai blueprint, it would be they, not the members of parliament, who would choose Fiji’s Head of State, the President. To whom would they ultimately owe their allegiance, the nation or their foreign backers?
When the Draft Constitution was sent to senior Government legal officers before Christmas, there was – by all accounts – a collective shaking of heads. What on earth was this document and why was it so big? It’s not only the size of the Fiji telephone book but goes way beyond the scope of the constitutions of many of the world’s great democracies. As the lawyers poured through its pages, they realised that much of the Ghai blueprint was laying down rules and regulations that ought rightly to be formulated by the new parliament. Fiji would be governed not by laws enacted by its elected representatives but by a flawed prescription formulated by the five members of the Constitutional Commission, two of whom were foreigners.
Worse, some of it undermined the most basic principles of the reforms the Bainimarama Government has instigated and got in the way of its desire to formulate a genuine democracy. When the lawyers toted up the number of all the “people’s representatives”, they were astonished to find that unelected representatives outnumbered elected representatives. And the simultaneous restoration of the Great Council of Chiefs – people who hold their positions by virtue of birth, not merit – suggested to them only one possible conclusion. That the Ghai Draft Constitution was ultimately a document not for ordinary Fijians but an elite. It concentrated power and influence in elite and unelected groups at the expense of the country as a whole.
It gradually sunk in at the highest levels of government over the Christmas and New Year period that the draft document was inappropriate in the Fiji context. Yes, some of its provisions were sound and could readily be adapted into a revised draft that was more workable. But others were clearly an impediment to good governance in a small country like Fiji. According to senior Government sources, it was faced with three choices:
(a) Proceed with the Ghai blueprint and send it to the Constituent Assembly as per the original plan. The problem with this was that the Government feared many months of intense argument over its provisions, a delay to the proclamation of the final document, a delay to the start of the political phase of the election countdown and perhaps even a delay to the election itself, taking it beyond 2014.
(b) To proceed with the Ghai blueprint in revised form, removing those sections that were inimical to parliament being the sole and supreme authority – plus a range of certain other provisions – and send that to the Constituent Assembly for discussion.
(c) To junk the Ghai draft altogether and start again.
In the end, the Government opted for Plan B. And thus we had an announcement to that effect last evening by the President and Prime Minister.
As we all know, Professor Ghai is a constitutional authority of considerable standing. When the Fiji Government engaged him, he came with an unparalleled international reputation. But unfortunately – in the eyes of the Government – he failed to live up to this reputation with his work for the Fijian people. His philosophy in writing the document and behaviour after the process concluded in leaking it has been highly questionable. To many eyes, he has displayed an appetite for self -aggrandisement and a desire to burnish his image in the eyes of the international academic community at the expense of the Fijian people.
Naturally enough, the Government now faces a period of opprobrium from elements in Fiji and in the international community. But it’s been determined all along to resist any draft that is essentially undemocratic and concentrates power with the Fijian elite and unelected groups. Now the revised draft will go to the Constituent Assembly for its consideration. The countdown to the election continues unimpeded but with the people ultimately having the dominant voice. As both the President and Prime Minister stressed, it’s in the interests of every Fijian – for the sake of the nation as a whole – to make a positive contribution towards making that process work.