a purely theoretical constitution in Fiji

Fiji has suffered a string of coups since independence, including coups within coups, counter-coups, and something called a civilian coup. The present regime is a military dictatorship headed by the armed forces commander, Commodore Frank Bainimarama. Like many junta leaders Bainimarama has assumed a number of civilian titles, including that of prime minister, but let’s be good small-d democrats and not give him dignities to which he has no claim.

Tha Bainimarama regime, in power since 2006, is going through a constitution-drafting process as a prep to promised elections. Those promises have been repeatedly broken. Professor Yash Ghai, who helped draft the South African and Kenyan constitutions, was nevertheless appointed to a constitutional commission and duly prepared his recommendation. Of course it has turned out that Frank has been betrayed again and the Ghai constitution is not at all what he wanted, but Fijileaks has posted the Ghai report. The regime has naturally declared the publication of the Ghai constitution most improper and is chasing people all over Suva for fear that someone may get to read it.

The Ghai constitution is an interesting document in a number of ways and worth a look.

11 thoughts on “a purely theoretical constitution in Fiji

  1. He’s just a zealous Ghai… That’s certainly a very interesting draft. Glad to see am not only person on planet who wants a ceremonial president to be elected by MPs plus ordinary citizens selected by lot. Also intrigued by the consistent pattern that – although former British colonies use List PR less frequently than the global average – those that do, usually spell out the details in their entrenched constitution. Eg, like Guyana and Sri Lanka, this draft specifies closed lists (the only non-Anglo constitution l can think of that entrenched that is Portugal).

  2. South Africa, another common-law jurisdiction, entrenched a detailed procedure for a closed-list system in its 1994-96 interim Constitution.

    I’m also mildly surprise that this draft (by the way, does a copy exist without the annoying “Fijileaks” watermark defacing every page?) doesn’t specify a particular formula for PR allocation but simply requires something “internationally accepted.” As Cambodia, Germany and other countries have illustrated, the precise formula adopted is less important than having one fixed (in the Constitution, or by a statute that is left alone for long periods) so it can’t be fiddled ad hoc by the ruling party/coalition. Portugal and Spain entrench D’Hondt allocation, Sweden entrenches St-Lague, and South Africa 1994-96 entrenched Hare with largest remainders.

  3. If you look at the line of development from South Africa to Kenya to Fiji, the new ideas in this constitution are the super-legislature, and the increasing strictness of the integrity and accountability regime. In this constitution officials can be dismissed from office by the monitory institutions.

  4. The grandpappy of this model is PNG since 1975, despite efforts since by its politicians to restrict the power of accountability bodies like the Ombudsman Commission to remove errant officials.

    In a more established democracy with a larger population, near-universal literacy and voting behaviour that focuses on replacing unsatisfactory parliamentarians rather than elevating tribal Big Men, I’d consider it unnecessarily dangerous to vest in a small panel the power to remove elected officials. In many Melanesian democracies, though, these factors don’t hold (and in many African countries, ditto except for large populations) so having these sort of oversight bodies is the least worst solution. It’s easier to find three (or five or seven) wise, impartial and non- corrupt persons to staff an accountability/ misconduct commission than to find two or three hundred to staff a parliament.

  5. I have no problem with monitory agency removals, if and only if a jury was involved. The procedure would not be a formal criminal trial, it would look like more like an Athenian dokimasia.

  6. Some unusual if not strange provisions: concerning the speaker (elected from outside parliament – article 93), and concerning early dissolution, (has to be proposed by the Leader of the Opposition after a non-confidence motion has been rejected, and be passed on the ground of non-confidence – article 88), particularly since there is also a provision for a constructive vote of no-confidence.

  7. Fiji has not been well-served by its presidents, although they have performed slightly better than Fiji’s military officers. The coup culture that has prevailed in Fiji since the Rambuka I coup in 1987 has meant that almost every Fijian president has ended up acceding to the demands of a coup leader.

    I suspect the odd early dissolution proposal is an attempt to get the president out of the process of granting or refusing a dissolution.

  8. The election of the president by a special college excludes the traditional chiefs, who previously elected the President, if im not mistaken-and is it unusual for closed list PR to allow partial lists to compete (or indeed to have more candidates on a list than there are seats to filled, without the extras being formally identified as substitutes)?

  9. The Great Council of Chiefs has betrayed Frank on a number of occasions. Hence his insistence on their abolition.

  10. @JD 6, I can actually see some logic to all of those so-called “unusual positions.”

    I personally have always wondered why a neutral moderator needs to be a member elected through the ordinary partisan process. And if nothing else, having a Speaker who isn’t a member may have been done to prevent the current shenanigans in Australia and recent ones in Wales where the party providing a Speaker and the lost vote played a role in determining who could go into government.

    The Leader of the Opposition having to propose either a constructive no confidence or a early dissolution also makes sense. One it prevents just anyone from bringing down the government and providing an excuse for the military. And two, it gives the Leader of the Opposition two options: try to form a new government or go back to the nation.

  11. How not to do a constitution-making process. Frank’s been betrayed by Professor Ghai. Now Frank will amend the Ghai constitution, present it to a constituent assembly he appoints, and then have it approved by the president, who he also appoints. If he doesn’t get betrayed by the assembly or the president everything should go swimmingly.

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