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CONSTITUTIONAL ENGINEERING


same time forward-looking vision started by stating that, “The People of Fiji declare— We are Fijian: iTaukei and all others who have come to make their home in these islands. We recognise the indigenous Fijian and Rotuman peoples who first formed a spiritual connection with these islands, establishing a strong, vibrant culture lasting for thousands of years.” It then concluded with: “In humility and hope, determined to overcome the past, and having engaged in open discussion of our visions for Fiji, we adopt this constitution for ourselves, and as a gift to our children, with the prayer that the generations who follow may live in peace and happiness.” The draft constitution was presented to the President in late December 2012 and almost immediately the government assembled a team of lawyers, led by the Attorney-General, to dissect the Ghai draft and come up with


an alternative. Meanwhile, the government started making public statements criticizing various parts of the Ghai draft and there were hints that it was not going to see the light of day.


The alternative draft The alternative government draft which was about half the length of the Ghai draft was released in March 2013. While some aspects of the Ghai draft such as the bill of rights were retained, a number of significant provisions were either removed or altered. The People’s Assembly to elect the President was publicly derided by the President to be a form of bastardized democracy consisting of “unelected” people with no public mandate. Interestingly, Bob Carr the Australian Minister of Foreign Affairs, a vehement critic of the Fiji government concurred with Fiji’s President. The government


Left: Fiji’s Attorney General, Aiyaz Sayed-Khaiyum; Above: internationally known constitutional expert Prof Yash Ghai.


draft proposed that the President should be elected by Parliament. The provision for the existence for the Great Council of Chiefs (which under the 1997 constitution appointed the President) was removed together with special aspects pertaining to indigenous rights to land and culture. The government justified this on the grounds that in its vision for a multicultural Fiji, special protection for a community undermines trans-cultural engagement. Other parts of the Ghai draft relating to environmental protection, civil society and local government were removed and perhaps most conspicuous was the change to the preamble. The


reference to indigenous Fijians as original settlers was removed and the entire section was altered. Perhaps one of the few major areas of concurrence between the two constitutional drafts was the recommendation for the proportional party list system as a way of ensuring equity in the distribution of seats and votes compared to the first past the post and alternative preferential systems. The only difference was that while the Ghai draft recommended a closed list system (where the party selects and ranks candidates), the government draft recommended an open list system where the voters decided on the candidates and their ranking. Both drafts advocated multi-ethnic listing by political parties to move away from the tense, divisive, volatile and destabilizing zero sum ethnic competition over political control of the state which characterized Fiji politics since independence in 1970. However, unfortunately none of the drafts provided for mechanisms to explicitly “induce” or “reward” political parties to be more multiethnic. Ironically, it was assumed that the old ethnic-based parties would have enough sense to field multiethnic candidates on their own accord. The Ghai draft did mention about gender inclusion but this was removed in the government draft.


The Ghai draft made the argument that because of the need for more robust and diverse parliamentary representation, the number of seats needed to be relatively high and thus recommended 71 seats. The government argued otherwise and proposed that Parliament should be lean, affordable and efficient and reduced the number to 45, a reduction of about 33 per cent. Unlike the single-Member constituencies under the 1970, 1990 and 1997 constitutions, both the Ghai and government draft constitutions provided for only four multi-Member constituencies as a way of ensuring greater proportionality and minimizing logistical costs.


Perhaps the most controversial aspect of the constitutional reform


The Parliamentarian | 2013: Issue Two | 129


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