CONSTITUTIONAL ENGINEERING


under the legal and political direction of the Attorney-General who in many respects virtually had tight control over state policies as well as the legal and ideological trajectory of the country. The tension between Prof Ghai and Mr Sayed-Khaiyum was more than simply a battle of egos as some have suggested, it was fundamentally driven by competing conceptions of the process of constitutional reform and the substance of the constitution. Neither of them was ready to compromise as they both fiercely pursued divergent paths.


Members of the Fijian Indian community: Fijian constitutions were designed to provide political balance and ameliorate differences between ethnic groups competing for political power.


was the issue of immunity. The debates revolved around two positions: on one hand is the legal purist argument that no immunity whatsoever should be granted since immunity will only encourage the coup culture; on the other hand is the political pragmatism argument that immunity is the best exit strategy from the current political quagmire. Both the Ghai and government drafts provided for immunity. The prospect of immunity has compelled Cmd Bainimarama to enthusiastically embrace election but the long term risk is that immunity has the potential to legitimize future coups. The role of the constitution in stopping or at least minimizing the possibility of future coups has been an issue of utmost interest given the fact that the country has gone through six coups — two in 1987, two in 2000, one in 2006 and one in 2009. The Ghai draft proposed a number of


preventive mechanisms. The first was the proportional representation system which would hopefully nullify the predominance of ethnicity as the major factor in political mobilization; secondly was the proposal that while the constitution was to provide for immunity for those who were involved in the coups from 1987 to 2006, there would be no more immunity in the future.


The government draft provided for immunity since 1987 as provided for in the 1990 and 1997 constitutions but there was no provision for future immunity. This poses a major threat to future stability. However, the government argues that the new proposal to make the Prime Minister Commander in Chief of the military instead of the President is a way of keeping the military under direct civilian control. On one hand this reasoning does make sense; but at the same time it can lead to greater


130 | The Parliamentarian | 2013: Issue Two


politicization of the military by the government in power.


Constitutional challenges and paradoxes


One of the assumptions when the constitutional review team was appointed that the individuals selected were liberal-minded with the right expertise, experience and, some suggested, had political “sympathy” towards the regime. The three local members represented the diverse ethnic community (an indigenous Fijian former politician, an Indo-Fijian scholar and a Euro-Fijian woman activist) and the two foreign experts were both legal scholars (Prof Yash Ghai of Kenya and Prof Christine Murray of South Africa). To the consternation of the regime, the commission was rigorously independent and was perceived as a competitor and even a threat to the pre-formulated designs of the regime,


Prof Ghai had envisaged a more inclusive democratic system with greater civil society and community participation while Mr Sayed-Khaiyum was interested in a more regulated and leaner form of formal democracy. Mr Sayed-Khaiyum was also inspired by self-preservation by envisaging a system which would possibly return members of the regime to power in the next election as an exit strategy as well as to protect them from future treason prosecution.


The lack of compromise between the two players was indicative of the bigger national atmosphere of suspicion and tension and the failure of the government to devise a framework to integrate constitutional reform and conflict resolution. Constitutional reform was carried out as a purely technical process independent of any initiative for national dialogue and reconciliation to address the underlying fractures caused by the 2006 coup. It was largely a process of state-building without the support of nation-building. The former refers to reconstructing the dilapidated state institutions while the latter refers to mending the social fractures between communities at the people-to-people level. A process which integrated the two and which would have made constitutional reform a vehicle for national dialogue and reconciliation would have made a lot of difference in terms of transforming relationships and addressing possible tension. Furthermore, while both drafts talked about inclusiveness, there was no attempt to translate the


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