The time may be appropriate to evaluate the Constitution, given the new government and anomalies perpetrated by the previous government. This opinion article objectively assesses weaknesses we have encountered thus far and lessons learned from governance under the 2013 Constitution.
Seven years after deposing the elected government and ruling by decree, Frank Bainimarama ushered in the 2013 Constitution.
This was in the aftermath of the shelved People’s Charter and the ignominious trashing of the Ghai draft Constitution, both of which cost taxpayers hundreds of thousands of dollars.
In his speech during the President’s assent to the 2013 Constitution, then-Prime Minister Voreqe Bainimarama stated, “. . . for the first time, Fiji meets the standards of the world’s great democracies and will join their ranks. We now have a constitution that meets the test of a genuine democracy, that upholds the legal and moral basis of a common and equal citizenry without losing individuality or culture.”
Since then, we have gone through three general elections and two governments. Most agree that our experience under Bainimarama’s Fiji First government leaves much to be desired. A leadership marred by capricious rule undermining the democratic principle of separation of powers.
The government illustrated that the 2013 Constitution as supreme law is merely a paper parchment that does not mitigate abuse of power and arbitrary rule.
Despite the highfalutin pronouncements of democratic values, individual rights, equal citizenry and separation of powers, many were left reeling from incidents reflecting disregard for the rule of law. The infamous assault case by Prime Minister Voreqe Bainimarama on Hon Pio Tikoduadua is one such example.
Appointments to constitutional offices were also questionable, contributing to public outcry of nepotism and cronyism.
A retired senior military officer and former minister who lost in the 2014 general election was subsequently appointed Commander of the Fiji Military Forces.
The Prime Minister’s brotherin-law, convicted of manslaughter, resumed Command of the Navy upon release and later became the Commissioner of Corrections.
The Fiji Independence Commission Against Corruption (FICAC) became, in public perception, a watchdog for the government hounding opposition parliamentarians with frivolous allegations.
Complaints against the powers that be in government were not pursued apparently because of inconclusive evidence. Police were not spared either, and most investigations against opposition politicians bordered on harassment and abuse of process.
The intervention of police and military in 2018 on Bau in the installation of the Vunivalu of Bau is a case in point. Public confidence in the judiciary was also eroded by perceptions of interference from the executive branch.
For example, a Magistrate that ruled against the government in Nadi lost his job after the then Attorney General criticised the judgement through a press conference.
That was not seen as contempt of court.
In contrast, the Attorney General took a prominent lawyer to task for commenting in jest regarding a judgement on social media.
The protection under the Bill of Rights for sexual orientation counted for nothing when Prime Minister Bainimarama stated that same-sex marriage would never happen in Fiji because it is a God-fearing country.
So where does that leave us, given that the Constitution declares Fiji as a secular state, guarantees religious freedom and embraces equal citizenry where everyone is equal under the law? The list goes on, but the question is what we can learn from the experience.
The Coalition government is more conducive to transparent processes, upholding democratic values and the rule of law.
However, the problem persists; some appointments have raised the public’s ire. A transparent system with merit-based appointments would address this.
For the Constitution to be effective as the supreme law, independent constitutional offices should carry out their responsibilities without fear or favour.
The legal framework provided in the Constitution has been found wanting, but how can we prevent the same from happening in the future?
The problem lies squarely in the politicised membership of the Constitutional Offices Commission (COC), which makes appointments. The Prime Minister chairs the COC, with the Attorney General as a member and two other nominees by the government. As such, COC membership is stacked against the opposition, with the Leader of the Opposition and one nominee making up the members of the COC. The same applies to the Judicial Service Commission (JSC), making appointments to various judicial offices.
This leads to the current confusion about the Commissioner of Police and Chief Justice being suspended with full pay and whether the officers acting in both positions receive the same salary.
Then we have the President, appointed by the government, who is expected to endorse decisions of the COC and JOC without question.
Similarly, many laws rushed through parliament via Standing Order 51, which became law without deliberation or consultation, but was assented to by the President.
The sad predicament is that the system cannot correct such anomalies despite the anomalies or abuse of power.
A compromised appointment process defeats independence, making appointees beholden to the appointing authority or the government and susceptible to political interference.
The challenge for us – “we the people” and our elected leaders is to ensure that the same does not happen in the future.
The pain we endured for the last sixteen years must be a lesson learnt, compounded by billions of dollars in debt left behind by arbitrary rule and narcissistic leadership. Moving forward, the 2013 Constitution needs to be reviewed.
In the process, we should consider electing the President, and granting the office veto powers to assent to legislation, and appointing constitutional and judicial officers.
•DR JALESI NAKARAWA graduated from the University of Waikato with a Doctor of Philosophy in Law. He served as Senior Assistant Secretary (Defense) Ministry of Home Affairs and was Assistant Commissioner of Prisons. He was also was an Assistant Professor (Law) at the Fiji National University. He was a PAP candidate in the 2022 general elections. The views expressed in this article are his and not necessarily of this newspaper.
