SS2Additional comments on the draft Fiji Constitution 2013 released to the public by the Prime Minister Commodore Baninimara on 21 March 2013.

The draft 2013 Fiji Constitution released on March 21 by the Prime Minister has attracted much criticism, not all of it fair. There has been a lot of hoopla associated with the Bill of Rights (Chapter 2) provisions in the draft, for example the strident claims that they are not the same as the rights provisions in the 1997 Constitution or other constitutions. An interesting criticism is that the limitations to rights in the government’s 2013 draft are longer than the rights themselves; however, everyone should look at the limitations in the 1997 Constitution before coming to that conclusion.

In addition, these critics should carefully study the 1970 Constitution’s Fundamental Rights chapter (Chapter II) to note the limitations set out there. Even the right to life is limited in identical terms as in the government’s draft. A recent comment from one of the NGOs was that the ‘right to life’ should not be limited. If that were the case, a government could easily find it appropriate to prohibit the right to abortion. Even the UN”s Universal Declaration of Human Rights contains a blanket rights limitation- note Article 29. The International Covenant on Civil and Political Rights (ICCPR) and the Human Rights Committee do explain what these limitations mean. 

 In the fervour to protest against the government’s draft constitution people need to be careful not to throw the baby out with the bath water!

Of course there are some serious deficiencies in the government’s draft, including in the Bill of Rights provisions, but rights limitation clauses are not the main problem. The main problem is that there is no definition of ‘human rights’ in the interpretation section of the Constitution and one has to rely on the definition provided in the Human Rights Commission Decree 2009 which is, of course, quite wrong.

There is a very good reason for convening a constituent assembly as promised and that is that some of the inconsistencies in the government’s draft can be discussed and ironed out. The public meetings that are being held currently by the government are not sufficient for the technical exercise that is required to draft a legally robust constitution for the future.

Dr Shaista Shameem

April 6 2013.