PUBLIC STATEMENT: NGOs concerned about Constitution-making process
9th August 2012
We are active non-governmental organisations (NGOs) for whom democracy and the rule of law are important to advance our aims. We have noted with interest the announcements of the Constitution Commission on Friday 3 August. However, we have some concerns about this process.
Our concerns centre on four things:
- the legitimacy of the constitution-making process set out in the two Fiji Constitutional Process Decrees (Nos 57 and 58) and its ability to deliver a fair and independent outcome to the people of Fiji
- the “non-negotiable principles” that the State says the new Constitution must contain
- the immunity provisions demanded by the State
- the environment that restricts full participation and debate in a constitution-making process, in particular the continuing restrictive atmosphere in which the independent news media must operate.
It is important to us that the constitution-making process be credible and legitimate. As NGOs, we are experienced and knowledgeable in our respective fields. What we do and say about the process may influence others. We want to be clear with the people of Fiji on whether this is a good process or a flawed one.
The process for making the constitution is important. If there is a poor process, there will certainly be a poor outcome. The process must be independent and free of control from people with an interest in the outcome. This includes members of the current government. In 2006 Commodore Bainimarama promised that he would appoint an interim government whose members would not participate in future elections. Elections are now promised for 2014. However Commodore Bainimarama has not ruled himself out of those elections, nor have other members of his government. Therefore the State should not have any control over the constitutional process.
We do not think it is right that the Prime Minister should have the power to appoint all the members of the Constituent Assembly. The State should only be able to tell us now how many people will be in the CA and how they will be selected.
The State must allow the CA to be comprised of persons who truly represent Fiji’s people, not those who are hand-picked by the State. Until we know more about how the CA is to be made up, we cannot tell whether the CA will be a legitimate body representing all the people of Fiji, or just a rubber stamp.
- “Non-negotiable principles”
The State has said that the constitution must contain matters that are “not negotiable.” These include:
- a common and equal citizenry
- a secular state
- the removal of systemic corruption
- an independent judiciary
- elimination of discrimination
- good and transparent governance
- social justice
- one person, one vote, one value
- the elimination of ethnic voting
- proportional representation; and
- a voting age of 18.
Many of these principles (or aspirations) are laudable and we agree with them. But there are two problems with this approach. The first problem is with the State presenting them as “not negotiable.” It is not for the State to tell the people what the constitution must contain.
Some of the “non-negotiables” are matters for the people to decide, not for the State to dictate. For example, we as NGOs may agree with the State about the way in which we should all vote, and the age at which we should vote. However, we must allow those who disagree with us to be heard and to have their views taken into account.
The second problem is that there are many important principles that the State has not included in its “non-negotiable principles.” These include freedom of expression and association, full access to courts and tribunals, rights of workers and other matters which are restricted now. The Media Decree, the Public Order Amendment Decree (which has been only temporarily suspended), the Essential National Industries Decree and the many laws which prevent citizens from going to court to challenge State decisions are not democratic. Under any truly democratic constitution, these laws will have to be significantly changed. The State needs to assure Fiji’s people that it is committed to amending these laws to align them with basic human rights.
The new constitution-making laws require the new Constitution to have all manner of immunities for members of the current government. This is something to be debated and discussed. We believe that some immunity may be inevitable, particularly for the events of December 2006. But should the military’s government have continuing immunities after the 2006 coup? For example, it promised to be a transparent and accountable government. So should its members have immunity if they are later accused of corruption or abuse of office while they were in power?
What immunities are given to members of the current government should be openly discussed, in a way that will encourage an atmosphere of justice, forgiveness and reconciliation between all sectors of the community.
- The environment for constitution making
It is common knowledge that the media, though it is not directly censored, operates under pressure from the authorities. For example, Fiji Television Limited, whose television licence expired after 12 years, has only been given a six-month licence on renewal. This looks like a “good behaviour bond” for Fiji TV, not a licence. It is also common knowledge that some media organisations have been put under direct personal pressure from people in the highest levels of the State.
The independent media are not confident to report fully and openly many things that are occurring or the things that the State’s critics are saying. This situation is going to be difficult to improve. At the very least, there must be a strong statement of assurance from Commodore Bainimarama which guarantees freedom to the media, including the right to criticise his government and publish others’ criticisms of his government.
The suspension of the permit requirements under the Public Order Act is only temporary. Why is this so? Why should the State continue to restrict citizens’ right to meet after the constitutional process is over? After all, if we have a truly democratic constitution at the end of this, any law unreasonably restricting people’s rights to meet will be invalid. If the State simply ended these restrictive laws now, it would receive credit for its efforts towards ensuring a truly democratic outcome in 2014.
These are some of the initial concerns we have about the constitutional process. Unless they are addressed, the constitution-making process risks becoming a mere rubber stamp. That would not be a fair or legitimate process to allow the people of Fiji to make their own constitution. Our people deserve better than this.
We request the State to consider and address each of our concerns. This will help persuade us and our members that it has a legitimate process for creating a new constitution so that Fiji can truly move forward.
- Fiji Women’s Crisis Centre
- Fiji Women’s Rights Movement