Thoughts on the 2013 Constitution of Fiji

by Elias Blum

Fiji’s Constitutional History

Fiji became independent from the United Kingdom in 1970, and at first adopted a standard ‘Westminster Export Model’ constitution of the type then in vogue. However, unlike other countries – such as India under Nehru’s leadership, which abolished communal electorates when they had the opportunity to forge an independent constitutional future – Fiji retained a system of communal representation. Seats in the House of Representatives were allocated to the Indigenous ( iTaukei), Indo-Fijian and European communities according to a complex formula, while a bloc seats in the Senate were reserved for the nominees of the Great Council of Chiefs.

The constitutional history of Fiji since independence has been turbulent, with ethnic tensions between the iTaukei and Indo-Fijian communities leading to repeated military coups, which have undermined the consolidation of parliamentary liberal-democracy. New constitutions adopted in 1990 and 1997, which maintained systems of communal representation, failed to address the underlying ethnic issues.

The 2013 Constitution

The current Constitution, adopted in 2013, had a shaky start. It was not adopted by an open and participatory process. Indeed, the draft which had been produced by an independent Constitutional Commission, under the leadership of Prof. Yash-Pal Ghai, so displeased the military government that it was seized by the police, and copies of it publicly burned. After that, the government took constitution-making into its own hands, and proclaimed the new Constitution without recourse to a Constituent Assembly, referendum, or any other expression of popular endorsement.

Yet, for all the difficult circumstances of its birth, the 2013 Constitution may be the best yet in Fiji’s history. Whereas all other constitutions had attempted to accommodate ethnic communities through institutionally-engineered consociationalism, the 2013 Constitution adopted a ‘one Fiji’ approach. It did away with communal representation, guaranteed seats, and the Great Council of Chiefs. It embraced the idea of a common, equal citizenship which would – it was hoped – transcend ethnic divisions. In practical terms, this meant the establishment of a unicameral Parliament, proportionally elected, from one national voter roll, in one nationwide constituency (as in the Netherlands and Israel).

The resulting 2013 Constitution is in many ways a nice example of a modern interpretation of the Westminster Export Model, with an extensive bill of rights, proportionally elected parliament, and a full set of independent commissions. Of course it has its imperfections, which have been amply highlighted by the constitution’s critics: the lack of restrictions on the number of ministers, the draconian provisions for enforcing party discipline, wide ‘claw back’ clauses which may allow restrictive limitations on rights, the excessive appointment powers of the PM through the Constitutional Offices Commission, and some unnecessarily messy rules on the premature dissolution of Parliament. However, these are not debilitating flaws. All constitutions are imperfect compromises, and there’s nothing there that falls outside the scope of ‘normality’ compared with the constitutions of other Commonwealth nations, nor that in principle could not be easily fixed by a few minor amendments.

If one were looking for models for, say, an independent Scottish constitution (especially if one is convinced by the ideas of the Republican Left of the independence movement, which favours abolition of the monarchy and extensive socio-economic rights), then Fiji’s supreme law would in many ways not be a bad place to start.

Excessive Rigidity

It does, however, have one major, possibly fatal flaw: the amendment rule. Constitutional amendments require a 3/4 majority in Parliament, followed by a 3/4 majority of the people in a referendum. That’s an absurdly high threshold. It makes it more rigid even than the US constitution.

I spend a lot of time reassuring those who worry about the tendency of constitutions to lock-in past decisions and prevent future progress that their fears are misplaced: constitutions, while rightfully harder to change than ordinary law, are not set in stone.  But the Fijian constitution would confirm the worst of these fears.  Winning a constitutional referendum is always difficult – there is usually an inertial advantage for the status quo; winning a three-fourths majority of the total registered electorate, as required in Fiji, is for most practical purposes impossible. Such excessive rigidity does not produce stability. It creates a brittle constitution which, because it cannot bend, is likely to break.

The SNP’S 2002 draft constitution for Scotland, in contrast, proposed a much simpler and more sensible amendment formula: 3/5 majority in Parliament followed by a simple majority in a referendum. I’m not even sure that a referendum should be required for all amendments; perhaps popular sovereignty should be invoked only for those of a fundamental nature.

Protecting against Destructive Amendments

There’s another way of looking at this, of course. One of the reasons why constitutions have relatively higher amendment thresholds is to prevent regressive, partisan, or self-interested ‘destructive amendments’ – those which would enable one party or leader to consolidate power.

In Hungary, the amendment rule is a two-thirds majority in Parliament – no referendum requirement, no intervening election. Fidesz won a two-thirds majority on a little less than half of the vote (having first changed the electoral law, which is a good reason for electoral laws to be constitutionalised and not subject to change by ordinary legislation); they then proceeded to unilaterally tear-up and replace the 1989 constitutional settlement, consolidating power in a regime which is violating the norms of liberal democracy.

Let’s say, for sake of argument, that the Fijians had opted for an amendment rule like that proposed for Scotland – a three-fifths majority in Parliament followed by a simple majority in a referendum. On the basis of the 2014 general election, the governing party – which won 32 of the 50 seats in Parliament, would have had the ability to re-write the constitution in self-interested, power-consolidating ways, as long as it could get a simple majority backing in a referendum (which could well be played out on ethnic lines). As it is, the constitution places some real limits on the abuse of power – protecting judicial independence, ensuring the regularity of elections, ensuring proportional representation etc – and protects those things against unilateral changes by the government.

Again, on the basis of the 2014 election results, a three-fourths majority necessary to amendment the constitution in Parliament can be achieved if the government and the main opposition party (which between them have 47 of the 50 seats, with just 3 seats having been won by a third party) concur. In practice, this gives both of the major communities in Fiji – the iTaukei and the Indo-Fijians a veto over changes. A lower amendment threshold would not have done that.

I still have reservations about the difficulty of getting amendments passed through a referendum (this has been an issue in other Commonwealth small island states, such as Grenada and in St Vincent & the Grenadines), and I do think there’s a case for minor and technical amendments to be made without a referendum, but perhaps in the Fijian context a three-fourths majority at the parliamentary level is not such a bad idea.

Concluding Reflections

The underlying problem with the Fijian constitution is not so much its content, but the lack of political consensus in support of it. It is a democratic constitution adopted by undemocratic means. Because it was imposed by the military, and not rooted in a genuine cross-party political agreement, it remains a source of dispute and division, rather than being a common foundation for democratic politics. The main opposition party has remained critical of the constitution and has promised, if it wins power in the elections due by September 2018, to restore institutions such as the Great Council of Chiefs which formerly represented the interests of iTaukei.

The challenge for those seeking to consolidate constitutional government and parliamentary democracy in Fiji is therefore two-fold. Firstly, they must allow the constitution to ‘settle’, that is, to become accepted and respected across the political spectrum. Several constitutions of dubiously democratic origin have, over time, achieved broad political and public acceptance. If Fiji’s constitution proves its capacity to deliver stability, democracy, human rights, good governance, development, and other tangible and intangible public goods, then it may eventually overcome the inauspicious circumstances of its birth. The ability of the constitution, through its high amendment threshold, to restrain egregious abuses of power and to prevent regressive amendments, may help in this process – as noted above, it gives both Government and Opposition, and in practice both Indo-Fijians and iTaukei a veto. It thereby establishes a sort of balance between them in which both have something to gain by preserving the constitution.  A crucial test will be whether there is a change of government after the 2018 elections, and whether, if so, the new government will accept in practice the constitution’s authority.

Secondly, they must find ways for the constitution to change and evolve over time to meet changing needs. This may involve creating space for constitutional evolution short of formal amendment (e.g. through statutory provisions, judicial interpretation, and political conventions). For example, some of the decrees from the era of military rule which were preserved by the Constitution could be re-enacted by Parliament in less draconian form. At some point, however, there may come a point at which the clearly written provisions of the constitution pinch, and then the test then will be to see whether an agreement can be reached on amendment, or whether recourse will be had once to illegal and unconstitutional change through the barrel of a gun.