A tale of three constitutions: Ethnicity and politics in Fiji

International Journal of Constitutional Law

Volumn 5, Issue 4, 2007, Pages 639-669

  Ghai, Yash ^a   Cottrell, Jill ^b  

^a UNITED NATIONS DEVELOPMENT PROGRAMME   (United States)

^b UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 35648994812     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom030     Document Type: Conference Paper

References (101)

1. FIJI CONST. 1970, available at http://www.itc.gov.fj/lawnet/fiji_act/cap1.pdf.
2. FIJI CONST. 1990, available at http://www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.html?tbl= RSDLEGAL&id=3ae6b57d8 (last visited Jul. 24, 2007).
3. Chandrika Prasad v. Republic of the Fiji Islands, [2001] 2 L.R.C. 743.
4. See text accompanying infra note 80.
5. See text accompanying infra notes 82-84.
6. THE DEED OF CESSION OF FIJI TO GREAT BRITAIN, Oct. 10, 1874, available at http://www.vanuatu.usp.ac.fj/library/Paclaw/Fiji/ DEED%200F%20CESSION%20%20FIJI.htm. A facsimile ofthe Deed can be found at http://www.vanuatu.usp.ac.fj/library/Online/Texts/Pacific_archive/ Fiji/DeedOfCession.pdf (last visited June 4, 2007).
7. E.g., countries such as Kenya, or South Africa, not to mention Australia, where indigenous populations were marginalized and discriminated against, if not, as with Tasmanian aborigines, exterminated.
8. We use the term "Fijians" to refer to the indigenous peoples of the islands. Under the 1997 Constitution the official name of the state is now the "Fiji Islands."
9. It suffices for our purposes to note that the British view (that the land was held communally with the superior rights of chiefs) prevailed, with far-reaching consequences both for the indigenous communities, internally, and for their relations with others. See Peter France, The Founding of an Orthodoxy: Sir Arthur Gordon and the Doctrine of the Fijian Way off life, 77 J. POLYNESIAN SOC'Y 6 (1968);
10. PETER FRANCE, THE CHARTER OF THE LAND: CUSTOM AND COLONISATION IN FIJI (Oxford Univ. Press 1969).
11. See generally BRIJ V. LAL, BROKEN WAVES: A HISTORY OF TIE FIJI ISLANDS IN THE TWENTIETH CENTURY (Univ. Hawaii Press 1992).
12. For example, according to R. Gerald Ward, claims of the emotional attachment to land (and its centrality to Fijian social structure) have been much overdone. As people moved freely and frequently from settlement to settlement, clans were split, new associations formed, and fresh acquisitions of land took place. Nor has evidence been found of the rule sanctified by the British that land was traditionally inalienable. See R. Gerald Ward, Land, Law and Customs: Diverging Realities in Fiji, in LAND, CUSTOM AND PRACTICE IN TIE SOUTH PACIFIC 198 (R. Gerald Ward & Elizabeth Kingdon eds., Cambridge Univ. Press 1995).
13. There is considerable literature on the role of chiefs and associated traditional systems. The ideology surrounding them has been a critical factor in the designing and justifying of constitutions and coups. However, it has long been recognized that this system of chieftaincy has been a major cause of the economic discrimination against and backwardness of the indigenous community and of the country's political problems. See, e.g., LAL, supra note 9;
14. ROBERT E. NORTON, RACE AND POLITICS IN FIJI (Univ. Queensland 1977);
15. STEPHANIE LAWSON, THE FAILURE OF DEMOCRATIC POLITICS IN FIJI (Clarendon Press 1991);
16. TIMOTHY MACNAUGHT, THE FIJI COLONIAL EXPERIENCE (Austl. Nat'l Univ. Press 1982);
17. FRANCE, supra note 8.
18. JOHN SYDENHAM FURNIVALL, COLONIAL POLICY AND PRACTICE: A COMPARATIVE STUDY OF BURMA AND NETHERLANDS INDIA 311 (Cambridge Univ. Press 1948): "The foreign elements live in the towns, the natives in rural areas; commerce and industry are in foreign hands and the natives are mainly occupied in agriculture; foreign capital employs native labour or imported coolies. The various people meet only in the market, as competitors or as opponents, as buyers and sellers."
19. POPULATION OF FIJI BY ETHNICITY (Fiji Islands Bureau of Statistics, June 2007), available at http://www.statsfiji.gov.fj/ Key%20Stats/Population/2.2%20pop%20by%20ethnicity.pdf.
20. Id.
21. THE FIJI (CONSTITUTIONAL) ORDER IN COUNCIL 1963, §30, available at http://www.vanuatu.usp.ac.fj/library/ Online/Texts/Pacific_archive/Fiji/1.%20Fiji%20(Consolidated) %20Order%20in'%20Council,%201963.pdf (last visited July 22, 2007).
22. See, e.g., FIJI CONST. of 1970 §§ 38 (Constituency Boundaries Commission) and 39 (Constituencies).
23. See FIJI CONST. of 1970 §45 (providing that Great Council of Chiefs appoints eight members of Senate);
24. FIJI CONST. of 1970 §68 (protecting various laws, especially relating to the system of Fijian administration and land, from normal amendment processes).
25. FIJI CONST. of 1970 §32.
26. The Great Council of Chiefs (GCC), although a colonial invention, is still in existence and often referred to by its Fijian name, Bose Levit Vakatirraga.
27. See FIJI CONST. of 1970 §68, and the laws listed therein, namely the Fijian Affairs Act, Fijian Development Fund Act, Native Lands Act, Native Land Trust Act, Rotuma Act, Rotuma Lands Act, Agricultural Landlord and Tenant Act, Banaban Land Act, and Banaban Settlement Act.
28. The section in question was FIJI CONST. of 1970 §32, and the 19 70 constitution provided for a report by a commission to be laid before Parliament before this could be amended. See FIJI CONST. of 1970 §67(4).
29. Fiji Parliamentary Paper No. 24/1975 (report of what is known as the Street Commission, chaired by British academic lawyer Sir Harry Street).
30. For views on the various electoral systems, see id.
31. But see KAMISESE MARA, THE PACIFIC WAY: A MEMOIR 126 (Univ. Hawaii Press 1997) (in which the former prime minister denies that this was the understanding).
32. LAL, supra note 9, at 224.
33. "For an account of the election, see Brij Lal, Before the Storm: An Analysis of the Fiji General Election of 1987, 12 PAC. STUD. 71 (1988).
34. FIJI CONST. of 1990 §41.
35. Id. at §49 (6).
36. See id. at §48(2)(b).
37. Id. at §§ 54 and 55.
38. Id. at §31.
39. Id. at §78.
40. Law could vest minerals in the state, but even then there was a presumption that royalties ultimately benefited customary land owners. Id. at §9(7).
41. E.g., this officer was no longer to be consulted on various appointments such as to the Constituency Boundaries Commission. Id. at §47.
42. E.g., members of the Public Service Commission. Id. at § 126(1).
43. Id. at §128.
44. Id. at §21.
45. Id. at §100(2).
46. Id. at §16(3)(d).
47. Id. at §135 (2)(v).
48. Id. at §13(2)(d).
49. Id. at §135(2)(vi), (vii), and (viii).
50. Id. at §100(4).
51. Id. at §161.
52. Terms of Reference of the Fiji Constitution Review Commission, issued by the President of the Republic of Fiji, Mar. 15, 1995.
53. THE FIJI ISLANDS: TOWARDS A UNITED FUTURE, REPORT OF THE FIJI CONSTITUTION REVIEW, Fiji Parliamentary Paper No. 34/1996, [hereinafter The Reeves report]. A detailed analysis of the process of constitution making by the present authors will be published in a forthcoming publication of the United States Institute of Peace.
54. The Reeves report, supra note 46, at para. 2.69.
55. Id. at 18.
56. Id. at para. 9.8 7.
57. Id. at paras. 2.76, 9.96.
58. Id. at para. 9.155.
59. Id. at para. 9.177.
60. Id. at para. 9.179.
61. Under alternative voting (sometimes known as majority-preference, or instant-runoff, voting), voters rank the candidates in order of preference. If no candidate receives a majority of votes on the first count, then the candidate with the smallest number of votes is eliminated, and his/her first-choice votes are transferred to the second-choice candidate on each ofthose ballots. This process of elimination and reallocation continues until one candidate has netted a majority of the votes and is the winner.
62. The Reeves report, supra note 46, at ch. 10.
63. Report of the joint Parliamentary Select Committee on the Report of the Fiji Constitution Review Commission [hereinafter Select Committee report], Parl. Paper No. 17, Annex II (2) (1997).
64. See Select Committee report, Annex IV(4). He went on to say, "Coercing what cannot be understood or what is not desired at times results in disenchantments and resistance. We are not embarked upon some experimental academic exercise and we cannot be determined upon social engineering in a haste and with concepts and values that could arouse uncertainty, anxiety and suspicion."
65. One member of the Select Committee, from the Fiji Labour Party, has explained why the commission approach was rejected. His party, committed to nonracial distinctions, could not accept the notion of multiethnic government, while multiparty government, which the Select Committee adopted, was more congenial: Krishna Datt, Speech at the University of the South Pacific Conference on Democracy and Good Governance (Sept. 30, 2003). The explanation is puzzling, since the vehicle for representation in the cabinet in the commission proposal was parties, not ethnic groups as such.
66. No doubt in the rush of events, the select committee (or the drafter) did not have time to iron out internal inconsistencies. A glaring one is the inconsistency of section 99 on the compulsory multi-party cabinet with the Compact: see Select Committee report, supra note 56, at §6(g) (referring to coalitions only of the willing).
67. It is a bit misleading to characterize the FLP as radical Indian, though they may be so viewed by many Fijians. But for purposes of analyzing the 1999 election, especially, it tends to be regarded as such because the NFP was behaving moderately by virtue of its alliance with the SVT.
68. For detailed election results see the website of the Election Commission of Fiji at http://www.elections.gov.fj/results2006.html.
69. See, e.g., Jon Fraenkel & Bernard Grotman, A Neo-Downsian Model of the Alternative Vote as a Mechanism for Mitigating Ethnic Conflict in Plural Societies, 121 PUB. CHOICE 487 (2004);
70. Jon Fraenkel & Bernard Grofman, Does the Alternative Vote Foster Moderation in Ethnically Divided Societies?: The Case of Fiji, 39 COMP. POL. STUD. 663 (2006);
71. Donald L. Horowitz, The Alternative Vote and Interethnic Moderation: A Reply to Fraenkel and Grofman, 121 PUB. CHOICE 507 (2004) [hereinafter The Alternative Vote];
72. Donald L. Horowitz, Strategy Takes a Holiday: Fraenkel and Grofman on the Alternative Vote, 39 COMP. POL. STUD. 652 (2006) [hereinafter Strategy Takes a Holiday].
73. ELECTION WATCH II: A CITIZENS' REVIEW OF THE FIJI ISLANDS GENERAL ELECTIONS 2001 89 (Arlene Griffen ed., Citizens' Constitutional Forum 2001).
74. Horowitz has replied to the analysis of Fraenkel and Grofman, arguing that the evidence from Fiji still supports the thesis that alternate voting generally offers an incentive to moderation. See Horowitz, The Alternative Vote, and Horowitz, Strategy Takes a Holiday, supra note 62. Arguably, the 2006 election offers some evidence against this view.
75. Jon Fraenkel, Electoral Engineering and the Politicisation of Ethnic Friction in Fiji, in CAN DEMOCRACY BE DESIGNED? 200, 248 (Sunil Bastian & Robin Luckham eds., Zed Press 2003).
76. Jon Fraenkel, Redistricting Via Coups and Constituencies: The Construction of Ethnically-Mixed Constituencies in Fiji 1970-2001, 28 J. PAC. STUD. 23 (2005).
77. See, e.g., ELECTION WATCH II: A CITIZENS' REVIEW OF THE FIJI ISLANDS GENERAL ELECTIONS 2001 (Arlene Griffen ed., Citizen's Constitutional Forum 2002).
78. President of Fiji Islands v. Kubuabola, [1999] F.J.S.C. 8, Misc. Case No. 1 of 1999 (Sept. 3, 1999).
79. Qarase v. Chaudhry, [2003] F.J.S.C. 1, CBV0004.2002S (July 18, 2003). The correspondence between the party leaders is appended to the decision.
80. Id.
81. In re the President's Reference, Qarase v. Chaudhry, [2004] F.J.S.C. 1, Misc. 001.2003 (July 9, 2004).
82. Fiji Gov't Press Release, Prime Minister and FLP leader make further progress (Oct. 18, 2006), available at http://www.fiji.gov.fj/ publish/page_7649.shtml.
83. There was one on the ticket of the SDL, but he had to resign due to allegations of financial impropriety.
84. This assigning of ethnicity is distasteful and may be a bit haphazard; we base the ethnicity on names and photos on the Parliament website if there is any uncertainty. See http://www.parliament.gov.fj/mp/ hr.aspx.
85. Jon Fraenkel, The Perils of Majoritarianism in Fiji: The 2006 Polls in Perspective, (unpublished manuscript, available at http://www.usp.ac.fj/fileadmin/files/Institutes/piasdg/governance_papers/
86. FIJI CONST. §64(2).
87. In re the Constitution, Reference by HE the President [2002] F.J.S.C. 1,Misc. 001.2001S(Mar. 15 2002).
88. See infra text in §5.
89. Brij V. Lal, Constitutional Engineering in Post-Conflict Fiji, in THE ARCHITECTURE OF DEMOCRACY: CONSTITUTIONAL DESIGN, CONFLICT MANAGEMENT, AND DEMOCRACY 267 (Andrew Reynolds ed., Oxford Univ. Press 2002).
90. Chandrika Prasad v. Republic of the Fiji Islands, [2001] 2 L.R.C. 743.
91. Fiji Gov't Press Release, Commander RFMF - Public Declaration of Military Takeover, 2 (Dec. 5, 2006), available at http://www.fiji.gov.fj/publish/page_8092.shtml.
92. Id. at 3.
93. Id. at 6.
94. Id. at 7-8.
95. As mentioned earlier, the only power-sharing government to come into being was sworn in only a few months before the most recent coup; so far, it seems to have been working without tearing itself apart.
96. There were serious structural faults with the power-sharing system See Jon Fraenkel, Power Sharing in Fiji and New Caledonia, (presented at Australian National University conference "Globalisation, Governance and the Pacific Islands," Oct. 25-27, 2005), available at http://www.usp.com.fj/fileadmin/files/Institutes/piasdg/ governance_papers/fraenkel_power_sharing.pdf.
97. Id. at 16.
98. Id. at 24.
99. It is worth noting that the 2000 coup took place on the same day and in the same place as the introduction of the Social Justice Bill, aimed at ensuring benefits to the most disadvantaged of all communities, amid Fijian fears that their previous, exclusive entitlements were under threat. Concerning issues around affirmative action, see Jill Cottrell & Yash Ghai, Constitutionalising Affirmative Action in the Fiji Islands 11 INT'L J. HUM. RTS. 227 (2007).
100. See U.N. HIGH COMM'R FOR HUM. RTS., DRAFT UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, available at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES. 1994.45.en (approved by the Human Rights Council in 2006 but not yet adopted by the General Assembly).
101. FIJI MINISTRY OF INFORMATION, MOVING IN THE RIGHT DIRECTION (Apr. 2007), http://www.fiji.gov.fj/uploads/Roadmap_2007.pdf (last visited June 4, 2006).