Synopsis of the Key Issues in attached Submissions to the Constitution
Commission on Constitution 20XX of Fiji
Dr Shaista Shameem
10th October 2012.
The submissions presented to the Constitutional Commission are in the form of
amendments to the 1997 Constitution for three main reasons:
(i) The 1997 Constitution clearly needs amendment- parts of it were excellent
but other parts did not make sense in the general scheme of things causing
a tension between the Bill of Rights provisions and the governance
(ii) In 1997 good governance, transparency, accountability and good
administration were not considered to be human rights issues, but now
they are incorporated into international law. The new Constitution of 20XX should reflect that shift in constitutional law towards postmodernity.
(iii) The 1997 Constitution was adopted by consensus and enacted as law.
Justice Gates said in his Chandrika Prasad decision, which was up-held by
the Fiji Court of Appeal, that “the presumption is that the Constitution
remains unimpugned until pronounced otherwise in court”. If we abide by
the rule of law and undertake to do so in future under another Constitution,
we must presume that the court must have the final say in the matter of
abrogation. This has not yet been tested. Therefore our discussions must
begin with the 1997 Constitution.
The 1997 Constitution is amenable to amendment because that document itself makes
it possible to do so (the 1997 Constitution was an amendment of the 1990
Constitution), and also because amending it is the only possible method for making
important changes in the body politic of Fiji, particularly if significant interest groups
still speak favourably of it.
It is no secret that the very first paragraph of the People’s Charter for Change, Peace
and Progress (2008) states that ‘we the people of Fiji affirm that our Constitution
represents the Supreme Law of our country, that it provides the framework for the
conduct of government and the people’. The reference to ‘our Constitution’ in the
People’s Charter meant the 1997 Constitution. This paragraph in the Charter provides
us with an effective rite of passage between the 1997 Constitution and the new one,
without a break in the grundnorm of the nation which was established well before
colonialism, and is an important legal consideration for change.
However, clearly there are parts of the 1997 Constitution that are autocratic and
authoritarian and must be removed. My amendments of the Constitution consider how
best we can retain the democratic and consensus-building parts without the patriarchal, linear, binary and hierarchical governance provisions which give primacy to undemocratic structures in civil and political life. At the same time, I keep in mind the non-negotiable principles established by Decree No 57 of 2012 without which any submissions are unlikely to be accepted since the Constitution Commissioners have, by law, agreed to work within these parameters in taking up their appointments.
My proposed amendments of the 1997 Constitution are based on the following
(i) The amended Constitution emphasises the social contract principle by
defining rights, duties and responsibilities of both the state and the people
from the Bill of Rights perspective so that governance and administration
are understood as a ‘rights and duties’ commitment.
(ii) The Bill of Rights is expanded to include duties of the people to each other
as well as to the State and Government, equal representation in parliament,
and responsibility of the public service and all arms and branches of the
State, as well as the judiciary.
(iii) It is the duty of the State to ensure that every institution within it, as well
as its laws, reflect and consider all views and opinions and give effect to
the social contract perspective of governance.
(iv) The amended Constitution emphasises the accountability principle.
Accountability is required from the very top- from the President, the
House or Houses of Parliament, and from all public officials including the
judiciary. Accountability is expected of anyone who is funded by the State.
The Government, if it expects state funding to come from taxes and other
non-monetary contributions of the people, will have to account for its own
behaviour and those of its state institutions while in power.
Accordingly, the amended Constitution, attached, proposes the following:
(a) The Head of State is appointed by consensus or elected (by the
electoral college of Parliament)
(b) Senior appointments to any public office are made after rigorous and
full consultation with all the people’s representatives in parliament.
(c) Additional independent mechanisms of accountability are included to
give effect to the social contract principle of governance.
(d) New voting mechanisms will closely follow the standards of
representation satisfactory to all communities whether in majority or
minority and conform to international post-modern standards for
voting in complex societies.
(e) The voices of minority groups are heard in concert with majority
groups as a conversation, and not a monologue or diatribe.
(f) As an additional mechanism of accountability, the full spectrum of
rights in international law is confirmed to be an indispensable part of
Fiji’s commitment to the Universal Declaration of Human Rights, and
all its instruments are considered as part of Fiji law.
(g) Everyone’s right to social development, social justice and social
security is protected by the State.
(h) The mechanisms of parliamentary law-making can be independently
assessed against the Constitution and there are checks and balances in
place to ensure that any proposed legislation likely to have an effect on
the rights of people has been properly ventilated and a knowledgeable
decision reached by consensus voting if possible.
(i) Autonomy and self-determination of persons and groups are
accompanied by mechanisms of power-sharing, or joint responsibility,
both vertically (State / People) and horizontally (among families and
(j) The security services are fully responsible for protecting the
Constitution and parliament and their role includes helping to educate
young people, as part of national service, to understand and commit to
integrated civic responsibility.
(k) The security services will continue to provide assistance internationally
to those in need in other countries whose rights are being violated and
diminished, as part of Fiji’s international responsibility to the world
(l) The security services at all times will keep the people of Fiji fully
informed through the mechanisms of reporting to parliament which
includes the President, the Senate, and the House of Representatives.
(m)The security services shall consider the preamble of the Constitution in
relation to Decree No 57 of 2012.
(n) The Judicial branch of the State will guard its independence with due
diligence and at all times without fear, favour or prejudice.
(o) The Judicial branch will exercise its responsibility to protect the
Constitution through proper resourcing of the Constitutional Court in
particular, and of all other courts of Fiji.
(p) The independent commissions will, at all times, without conflict of
interest, fully exercise their responsibilities pursuant to their mandates.
(q) In situations of crisis, when an emergency must be declared by the
President or appropriate authority, the well-being of the people shall be
of paramount concern in any decision to protect the life of the State.
3.0 Specific Recommendations
The following specific recommendations are made in these submissions:
(i) The Bill of Rights is the core part of the Constitution and all aspects of
governance, administration, state services, representation, accountability
and institutions, including the courts, are based on adherence to the idea of
primacy of rights and duties.
(ii) Parliament (includes the President and two Houses or one) is to be elected
on the basis of an electoral mechanism which gives full effect to rights of
majority as well as minority populations and groups in light of section 30
(2) ‘right to be free from unfair discrimination’.
(iii) The Head of State’s main duty is to protect and up-hold the Constitution
(iv) The primary duty of the security services is to ensure that Parliament is
protected as it does its work in up-holding the rights of the people of Fiji
and makes laws for the betterment of the community of Fiji; a duty that
extends also to devising a scheme of national service as part of the formal
(v) The establishment of the Councils of Elders alongside the Bose Levu
Vakaturaga, as a formal constitutional entity indicating self-determination
and autonomy protected by international law, is for the purpose of
providing all the communities in Fiji with the opportunity to converse with
each other on matters that affect them and to advise the President and, in
turn, receive sage advice from him or her on national issues and concerns.
(vi) The terms of reference of the Councils of Influence shall emphasise
expression of community spirit in the national interest.
(vii) The establishment of the Constitutional Court is a necessary part of the
mechanisms of constitutional protection and is modelled on the South
African Constitution with some significant differences.
(viii) A Charities Commission is proposed to ensure that the public benefit
objective of charities is transparently exercised and accountable to the
people it is designed to assist. It is based on the UK Charities Commission
but other jurisdictions may be considered to decide the best model for Fiji.
(ix) The Human Rights Commission is provided with primary responsibility to
ensure that the rights of everyone in Fiji, particularly the vulnerable
groups, for example, children, disadvantaged persons and groups, women,
people with disabilities, and minority groups are promoted and protected.
(x) In situations of emergency, when the people of Fiji and the life of the State
are threatened, a number of core rights cannot be suspended. Full
consultation with members of parliament and security services is proposed
before a declaration of emergency can be pronounced.
(xi) The oaths of allegiance and office are amended in the Schedule to include
‘up-holding the Constitution’ as a fundamental undertaking of the officers
of the State.
3.0 Role of the Constituent Assembly
The first duty of the Constituent Assembly would be to determine, preferably by
consensus, the principles upon which the governance of the State shall be based.
The discussions should then focus on the types of institutions and voting mechanisms
that would give full effect to those principles.
I am very grateful indeed to the following for making helpful comments on my early ideas
and various drafts: Professor Bradford Morse, Dr David Neilson and Mr Logan Moss
(Waikato University), Dr Chris Wilson and Dr Stephen Winter (Auckland University), and Dr James Anthony and Mr Peter Prasad.
Click on the following link for the full transcript of Dr. Shaista Shameems Submissions to the Constitution Commission.