CONSTITUTIONAL ENGINEERING


appointment of the constitution commission led by Prof Yash Ghai, a leading international expert, heralded a moment of high expectation and hope. However, this optimism was thwarted by differences between Prof Ghai and Fiji’s Attorney-General, Mr Aiyaz Sayed-Khaiyum, a former student of the professor, over the legal conditions under which the constitutional reform was to take place. The professor had demanded that any constitutional reform must be carried out in a free political climate to allow for greater participation while the Attorney-General insisted that while there should be free participation, there should also be a degree of cautious restriction to avoid potential instability. The core of the contention revolved around the human rights versus security discourses. This degenerated into public debate with Cmd Bainimarama publicly scolding Prof Ghai to “just


do his job” and even urging him to resign if he could not take the heat. The rift increasingly became wider and irreparable and the fate of the constitution commission’s draft, released in December 2012, became a foregone conclusion—needless to say, it was destined for the ashbin of


“While some aspects of the Ghai draft...were retained, a number of significant provisions were either removed or altered.”


history. In its place the government put forward its alternative draft. Although some may say that it


128 | The Parliamentarian | 2013: Issue Two


was excessively long, the 200-page Ghai draft was comprehensive and enlightening in many respects. It had a very strong human rights focus with specific provisions to protect indigenous rights and land. For the first time ever, socio- economic rights were accorded a constitutionally prominent status as a way of addressing the increasingly problematic scourge of poverty. An innovative aspect of the draft was its attempt to shift power away from parliamentary hegemony to direct participation by civil society and the community at large through a proposed People’s Assembly which would also elect the President. A major break with the past was the proposal for proportional representation. The 1970 and 1990 constitutions provided for the first-past-the post system while the 1997 constitution provided for preferential system and by and


large these electoral systems led to skewed distribution of seats as well as ethnic demarcation and tension. The proportional system suggested, based on parties providing their “closed’ list was meant to transform the political culture away from ethnic- based representation to greater ethnic and gender diversity. While previous constitutions were largely focused on issues of state governance, the Ghai draft covered a whole range of areas relating to people’s daily lives such as environment and heritage, land, civil society, media, local government and national security. This was indicative of the degree of inclusiveness and thoroughness with which the commission travelled the country collecting views from people of different sections of the community. The collective spirit of the country was succinctly captured in the preamble which in a reconciliatory and at the


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76