Krishna Datt Submission

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KRISHNA DATTMinister for Labour and Industrial Relations - 200674 RATU SUKUNA ROAD P O BOX 2592

NASESE GOVTBLDGS

MOBILE: (679) 9923111 SUVA

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Submission for the Fiji Constitution

15th October, 2012

IntroductionIn the planning and preparation of this submission I am grateful to the very many people who have

shared ideas with me and have helped to provide a sharpened focus. Some groups who have shared

some ideas such as the Fiji Public Servants Association, the Fiji Teachers Union and the School

Management Association of Fiji have gone ahead to make submissions of their own. I am grateful

to all those individuals who have acted as a sounding board and have provided useful critique from

time to time. Some individuals have felt inspired to make their own submissions.

I am particularly grateful to Jill Cottrell and the Commission for providing A Guide to

Constitution-Making for the People of Fiji.The guide has been particularly useful in providing a

focus and raising pertinent questions on issues for submissions.

However, I am solely responsible for the views and ideas expressed in the submission. There is no

order of priority. All issues are important but issues closest to my concerns have been dealt with

first. Some ideas may even be contradictory. It is not a conventional submission of fixed and

unchangeable ideas. Some ideas are being put forward for further discussion. They spring from felt

needs at the time.

The submission assumes that a collective vision will be better than individual submissions whether

presented personally or in the name of a group. They are offered here as options, in the firm belief,

that there will be other opportunities to comment and to contribute to the draft proposals made bythe Commission.


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Political Parties

This section on political parties is offered as an issue of concern. It may well be that the

Commission will find that there is indeed no good alternative to political parties. In that case this

section must be read as an expression of a strong desire to reform political parties.

The concerns expressed can then be directed at setting clear criteria for political leadership and

political party reforms. Some ideas on these issues are spread through-out the submission.

Political parties have been the major cause of division and rift in the Fiji Society.

It has been a misnomer to think that political parties represent the people. At best and closest to the

inception of a new party, political activist strive very hard to represent what they consider to be in

the best interest of the people.

With time, the activists fade away and the party becomes the preserve of a few on the top. On the

top, generally one person takes total control and begins to manipulate the party composition,

structures and ideas to suit him/her self. With some slight variation, such has been the state of party

political decision making and control. It is no different from an oligarchy. Power concentrates in the

hands of a few often, in one hand only. It is a far cry from the participative democracy we aspire for.

It is completely non representative. Yet the dialogue of the demagogues are usually couched in a

faade of democratic framework and indeed when the system goes wrong greater democracy is

demanded. The demands can be totally undemocratic. The call has been for supremacy and

dominance of one race over another. More recently the first coup has been redefined as an attempt

to reinstate the Fijian elite to power. No real heed is paid to democracy.

In 2002 and in 2006, those who were pro-coup turned anti-coup. The arguments were reversed. The

pro-coup advocates of 1987 became protagonists of 2006. Political partners quickly realigned

themselves to seek advantage for themselves. Shamefully, some leaders and prominent citizens let

down their people by following petty political and personal self interest, clearly demonstrating that

they had no consistent vision for Fiji in any case.

When self interest was no longer fulfilled or it came to threaten the self interest of the more

dominant partners in coup, they were thrown out of the partnership.


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There is complete lack of democratic decision making within political parties. Venues and agendas

are set up for making desired decisions. Support and petitions are manipulated and prearranged.

The delegates, elected, or, more often, appointed or maneuvered into positions by the top hierarchy

is then used to carry through the leaders agenda. A henchmen especially kept and nurtured to

spread decisions already made, are used to propagate the directions of decisions to be adopted.

When it has suited political parties, the parties have supported the coup-makers keeping the rhetoric

of democracy. In 1987, a major political party, a religious organisation, some social institutions, all

others who had joined and supported the coup makers are today demanding democracy. Those

who had felt ashamed with themselves in 1987 had found false defense in phrases such as we agree

with the cause but not with the means. Nobody paraphrased what was the cause.

In the 2000 and in 2006 coup, major groups changed sides. People are being fooled by some leaders

one more time. There has been no sign of commitment to any higher vision or goals for society. The

rhetoric for greater democracy and justification for their present stance has been recast in the light

of their advocacy to save the country and to bring about democracy at the earliest.

Thus we find ourselves participating in the development of a new constitution for genuine, real

and grass-root democracy.

The grass-root has been calling out that they have been let down by their leaders in the past.

Political parties are clearly identified as responsible for the mass that this country has been in. The

Commissions own notes (Building the Peoples Constitution: Your Responsibility, Suva, August,

2012) has pointed out at surveys and assessments which have reiterated that political parties have

been responsible for most of the division in the society.

Reeves Commission was very critical of the politicians exploiting ethnic differences and creating

animosity among the people. (referred to in the Commissions Guide, pg 7)

It is understandable why in some countries political parties have been banned. Such is the

frustration and disappointment with political parties. The Commission is invited to pay heed to

these frustrations.

However, it is noted that political parties do and can provide avenues for like-minded people to get

together and organize themselves to support a common vision and give direction to the country.


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Individual ideas may have a lesser chance of success unless organized in a larger group.

Unfortunately, the initial high ideals of a party are often high jacked by manipulating and self

centered individuals who take control through a pervasive mafia type operation within the party.

The unsuspecting members are stunned into believing or inaction having lost any independent

says on the issues. Those who scrutinize are either bought off, cornered into a minority or sacked

from the party.

Political parties have tended to reflect most undemocratic decision making style. A recent victim of

a prominent party had this to say about the Party and its leader: In the next calculated move,

which has been the hallmark of the leader, he proceeded to read a motion signed by some branches

to conduct elections. It is believed that the son (of the Leader) worked behind the scene to get

signatures from cronies. The process was over with a couple of minutes. ..Again we

witnessed the total manipulation of the process which is not new to the Party. Here we have a Partythat preaches democracy but its practices and its operations are totally the opposite to the very

principles of democracy. In utter frustration and disgust, I decided to walk out of the meeting.

Those who were in the meeting would have observed the father and son domination on each and

every discussion and allowed little room for anyone else to have their say. My interventions were

only possible as I had to stand my ground and make a point but on every other issue

was allowed to have a comment before anyone else was allowed a voice. This is the antithesis of

transparence and democracy. (FTUC Press Statement on Labour No: 26-13/12, 28/08/12)

Alternative to Political Parties:

It is recognized that it may be hard for a country used to political parties to make a meaningful

transition from party politics to a system using a non party mechanism. If members of the

Commission would put their minds together it may be possible to find alternative which does not

depend on party political control and manipulation.

It may be possible for example, for individuals to be elected independently and be responsible

directly to their constituency structures. To be a candidate, a specified number of signaturessupporting the candidate would be required. Once elected the member joins one or two standing

committees of parliament.

In this way the members would be directly responsible to their constituency. The political party as

an intermediary will no longer be required. The members in Parliament will have direct

responsibility to his/her constituency. The member will be able to set his or her own constituency

structures. Each structure will be constituency based. In this important sense it is likely to be more

representative of the people. This system will entail direct responsibility of members to their

constituency and give greater and more meaningful role to the Parliamentary Standing Committee.


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Such a system of a constituency based structures could dovetail well with a Presidential model in

which most members of the Cabinet is appointed immediately after the election of the President and

a substantial number could come from outside the Parliament.

In order for the President and his/her Cabinet to pass a Bill other than a Money Bill the Ministers

will have to persuade and negotiate with the relevant Standing Committee to put the Bill before the

House for a full debate.

The system has the potential for greater check and balance on the Executive. It requires hard work

by the Executive to persuade the Standing Committee and the Parliament.

A two tier election will determine the President and the Parliament. For election, Individuals

aspiring to be PMs would be required to submit a list of signatures to the election office supporting

a candidate. Once elected, he/she is responsible to the parliament and normal checks and balance of

a presidential or a West minister system shall prevail.

The Prime Minister/President selects his or her cabinet either from outside or from the House or

from both. It is recommended that Fiji should continue to have Ministers from the Parliament.

Perhaps 2/3 of the Ministers from the Parliament and 1/3 be limited to selection from outside.

The Presidential model of a Bills passage shall be adopted, with the standing committee having the

responsibility for the passage of the Bill through the House.

The crux of the outline proposes a system which makes a political party structure redundant. It will

no longer be an intermediary between the elected member and his/her constituent. The member has

direct responsibility to the constituency.

This submission is not blind to the reality that some trans constituency alliance will take place. If

not at election, there is a real possibility that it could take place in the Parliament. It is argued,

however, that these alliances will be formed on a commonality of visions and policies. At least the

pernicious control and manipulation of a Party elite will no longer be there. With other reforms in

place in a new Constitution, it is also hoped that the new generation of leaders will be less likely to

sell themselves.


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Members in the House will be free to align or re-align depending on the Merits of the Bill. The

Standing Committee will become a full time operation. The Executive will also have to work very

hard to persuade the Members of the House. It will be far more accountable and responsive to the

wishes of the people.

The Parliament will really be supreme. It could impeach the Prime Minister and could get rid of the

Ministers by a vote of no confidence.

Recommendation:

The Commission is asked to find or develop a system in which the role of political parties is made

redundant or minimized. The recommendation is intended to impress on the Commission, the

seriousness of the frustration that people have faced with political parties. Alternatively, the

Commission is invited to recommend some far reaching reforms to make political parties much

more accountable.

Leadership:

Fundamental to political party reform is the question of leadership. The major reason for the

peoples disenchantment with political parties springs largely from the nature and caliber of political

leadership. The scheming, manipulistic, self centered leadership of the past has been the major

cause of disenchantment.

Any system of government will continue to depend on individuals to come forth and take the cudgel

of leadership. What we need is for the constitution to provide for a strict criteria for people offering

themselves for national leadership.

The Reeves Commission had found much to be desired in the national leadership. The Reeves

Commission had called for a strong, honest leadership based on personal integrity and managementskills.

Providing for national leadership is a sensitive and complicated issue. It is not easy to set

measureable personal qualities for selection of leaders. However, an attempt must be made.

The Parliament, as an institution requires some qualities of its members over and above those of

honesty and integrity. For the Parliament to be relevant in a globalised world, one obvious quality

expected of a member is to have a good understanding of the global forces affecting our economic,

political and social behaviour. A member should be able to read, understand, critique Parliamentary


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business and be able to participate effectively in the Committee processes. The demands are almost

pointing to a graduate Parliament.

Pitched against the demands of the Parliament, a member must also have the social skills to interact

with the constituents and represent their views and concerns in Parliament. Conversely, the member

should have the ability and skills to translate the affairs of the State and explain the forces of global

economy to his/her constituents.

Recommended:

That the Commission lays down specific skills and personal qualities required for national

leadership which is keen to adopt practices of a cooperative and participative democracy in a

country fast becoming an integral part of a globalised world.

System of Government

The Present System

It must be said at the outset that the 1997 model of Government was workable. The right of parties

with more than 10% of the seats in Parliament to be invited to be part of the cabinet was a good one.

The last government was quite popular from this point of view.

For such a system to work, we need leaders with vision. Unfortunately, the leaders have never

wanted to make this system work. There was a basic lack of trust amongst political leaders. A deep

seated sense of reluctance to share power had marred the successful operations of such a system.

Some people have argued that a voluntary association of parties that qualified to be in the Cabinet

may have helped.

Mandatory provision to participate in government did provide the option to opt out, if a party felt it

could not work with the majority party. Reluctant participation in a system posing difficulties forparties to work together provides opportunity for greater challenges. Only a more creative and

empathetic leadership can handle such situations. Reasons of difficulty in working together also

provide greater check and balance of the majority party by the other partners. This would maintain a

check on abusing excessive power. The association of a number of parties in government helped to

create a sense of national unity.

The system is held responsible for the failure of the leaders to work together. Personal motives,

selfish interest, overriding desire for power has been the major factors in the inability of the system

to work. The solution is not in getting rid of the system but in finding ways and means of ensuring


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that enlightened leadership is at the helm of government. Voluntary rather than mandatory invitation

to Cabinet may have worked better. Without leaders determined to make the system work, no

innovation could succeed. The new constitution can make a difference if it can establish criteria for

good quality leadership in the country.

The West Minister System

Generally the Fiji system has been based on the West Minister model. People have become

accustomed to this model. Crucial to this system is the choice of Cabinet Ministers from within the

Parliament. The leader of the majority party is given this prerogative. Some ministerial positions

could be drawn from the Upper House.

The constituent is generally aware of the hierarchy of parliamentary accountability. The citizen hasaccess to a Cabinet Minister through the member representing his/her constituency or the member

can have direct access to the Minister. The Constituent is aware that the Minister is finally

accountable to the Parliament and could be asked questions to explain the Government policy and

practice.

A variation of the system, as in the case of Tonga, permits the Prime Minister to nominate a certain

number of members from outside. Such members need not be drawn from an Upper House.

Presidential Model

Public whispers in Fiji is already forecasting a presidential form of government for Fiji. The

substantial difference for Fiji would be in the two tier election used in selecting the President and

the Members of the House (or Congress). The second difference would be in the selection of the

Cabinet Ministers. The President nominates his/her own set of Cabinet Ministers from outside the

House.

While the system has some merits, the fear for Fiji, is that in the exercise of Presidential powers to

select his/her own Cabinet, the ministers could well be selected on cronyism , or be used to give

jobs to those who were ardent supporters of the President. If no complimentary standard of

leadership is imposed, the Presidential model could further corrupt the Government system.

This would defeat the very purpose of trying to bring capable and skilled people into Government

without getting them to face the hassle of politics.


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In this system the usual checks and balances of a Presidential model (as in US) would apply.

If the system is at all considered for adoption, the right of the President to choose his/her cabinet

should be carried out in consultation with the party hierarchy or any other consultative body. The

idea is to ensure that the Cabinet does not comprise merely of cronies or close supporters and allies

of the President or the Party. The cabinet Ministers should be chosen strictly on merit and be

consistent with the specific needs of each of the portfolios.

The criteria spelled out for Members of Parliament, should also be used for the selection of Cabinet

Ministers.

In any case, for continued direct link with Parliament it is recommended that no more than 1/3rd

ofthe cabinet ministers be chosen from outside the Parliament. All cabinet members whether elected

or nominated should be required to answer questions raised in the Parliament.

All other checks and balances of a Presidential System should be put in place. The right to override

the choice of the President to nominate a Cabinet minister from outside shall remain with the

Parliament. At any one time the Parliament could impeach the President and or could dismiss a

Minister with a vote of no confidence.

Mixed Member System A Recommendation

Having taken all the factors in to account, a mixed member system is recommended which

marries the Presidential and the West Minister model.

The title President shall merely become a name change. The Prime Minister will then change to

a President. The President should be elected by the whole country rather than the leader of the

Parliamentary party with the larger majority.

On election the President shall select his/her Cabinet on the basis of 1/3 from outside the House and

2/3 from the Parliament. The outsiders must have specialized skills and training in the specific

portfolio for which they are selected. In making Cabinet appointments the President must do so in

consultation with an appointing body - so appointed.

Electoral System

The communally based electoral system of the previous constitutions has become an accepted


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feature of voting. It will not be easy to eradicate communal voting under any system of elections. It

may take a long time still to change. However, this is not to say that a beginning should not be

made.

Even under one man, one vote, one value system a voter is most likely to look at the party which is

likely to represent his/her communal interest before he/she decides to cast a vote. Faced with this

kind of stark reality, the Joint Parliamentary Select Committee (JPSC) negotiating the 1997

Constitution had reversed the numbers recommended by the Reeves Commission, in favour of

larger number of communal seats to the number of open seats. The JPSC had done this with the

clear understanding that by the time of the next revision the number of open seats will be increased.

The Commission is now faced with two non-negotiable provisions: one man-one vote, one valueand proportional representation.

Both these principles does not inherently negate the forces of communal thinking or voting. It may

be suicidal for minority communities to continue to think in communalistic ways but the fears and

apprehensions reinforced by bad quality communalistic leaders of the past cannot be overcome by

the stroke of a pen writing a new constitution. Some very smart, creative and innovative electoral

engineering will have to be done to ensure that even communally based thinking will throw up

merit based leadership from all communities.

Some actual and real safeguards will have to be provided to ensure that merit based candidates from

all communities are given priority listing in all political parties. No matter what system of election

is adopted the choice of candidates based on merit will be crucial in overcoming age bound

apprehensions and fears.

Similarly, affirmative action for women should be seriously considered. A minimum percentage on

priority listing or priority seats should be allocated by political parties.

With massive Civic Education, visionary leaders at the helm, it may be possible, gradually, for the

people to come to accept that representatives of the people need not come from the same

community but be men/women of honesty, integrity and with skills and ability to lead and to

represent the Constituents in an increasingly globalised society.

To assist in this confidence building process, institutions of governance and independent


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commissions and agencies may help to safeguard the rights of equal citizenry. The creation of such

institutions may in time allay the fears of the various communities and shift their thinking from

communal leadership to leadership based on the merit principles. It should be the intention to shift

from dependence and reliance on individuals to institutions of governance and commissions to

safeguard and fulfill the needs and aspirations of the citizens. Citizens must be able to access

fairness and justice from public institutions and agencies of law and order to safeguard their human

rights.

The Commission is challenged to find an electoral system that will fulfill the vision outlined above.

Some variation of the mixed member proportional (MMP) system may in some ways help to realize

such a vision. This may not be a radical a departure from the known system.

A mixed system based on a Party List and Constituency Representation may fulfill some of the

needs. A party list, treating the whole country as a single constituency could provide the proportion

of support that each party has in the country. Having determined the overall percentage, the party

list will then supplement the numbers determined by the constituencies. Not less than half of the

number of total seats may come from the party list.

There are two ways of determining constituency votes. The constituencies could be either single

member constituency or three member constituencies. The three member constituency will perhaps

provide a better choice for voters to be more generous in casting their votes. In other words, a voter

may well be persuaded to distribute his/her vote to merit based candidates of major or minority

communities and one for a candidate of preferred sexual orientation. A single member constituency

will tend to limit the voters choice to one person which may well be only from the voters

community.

Independents could also stand from such a constituency. The voter may also decide to cast his/her

vote across party lines. Instead of a tick, the voter may be required to number transferable votes.

The constituency seats are determined first and winners declared. Each party then takes only the

remaining percentage of seats from the party list.

In this system the people have the choice to vote for a party at the National level and an individual,

independent or any other choice that the voter wishes to exercise.


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In a 53 member parliament, 26 could come from the party list and 27 from nine constituencies of

three members each.

Strengthening Parliament

The Standing Parliamentary Committee system introduced in the 1997 Constitution should be kept

and strengthened. The Executive must have support of the relevant standing committee of the

House for a Bill to be passed. It is anticipated that the Minister and his/her civil servant will first

persuade the relevant committee to adopt the Bill with or without amendments to be put to full

debate in the House.

The Committees report will have to be taken much more seriously than it was the case under the

1997 Constitution. The draft Bill should go through a full consultation phase with the people, partor whole of it to be re-negotiated with the Minister if deemed necessary and then taken to the full

House for debate and any further amendment and passage.

The Standing Committees should meet regularly to supervise the work of the Ministry, ask

questions, raise peoples issues, etc. It should not be activated only when a Bill is before the

Committee. All Bills must be referred to the relevant Committee.

Parliament should become a near full time work. Members should be well paid and well resourced

to do Parliamentary and constituency duties.

Discipline

The constitution should provide for a Code of Conduct for members and Ministers. Only a breach

of the Code could be considered a matter for expulsion or any other suitable punishment. Such

punishment is to be recommended by the Parliamentary Disciplinary Committee.

Once elected, no political party should be able to expel a Member from the Parliament. A Party may

present a case to the Parliamentary Disciplinary Committee for expulsion but cannot on its own

expel a member from Parliament.


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Corruption

Corruption has been a feature of Fiji life for a long time and appears to have gained momentum

after independence.

Some corrupt action may be attributed to an overflow of customary obligations in a traditionalsociety. The demarcation between social obligations and favours verging on corruption has been a

fine line. Seeking favors from members of the Vanua or family heads has been an expected norm for

most people in Fiji of whatever community.

Fiji has to find ways to get out of these obligations and learn to deal with complaints and provide

service on an equitable basis.

Corruption is rife not just amongst civil servants, traffic wardens and anyone who has a service to

provide but also in high places including parliamentarians and ministers.

When any matter or issue raised by the people is not fully and appropriately addressed, the people

conclude that there must be corruption. Corruption must be serious enough in Fiji for Transparency

International to rank Fiji 4/10 in 2005.

Corruption undermines the very fabric of a democratic society. It undermines all that is good and

founded on honesty, integrity and the rule of law. It undermines the right of the citizen to have equal

access to state resources and services. It leads to erosion of confidence in the government and the

public service.

Elimination of corruption must be the responsibility of every citizen. No one single institution can

eradicate corruption. There has to be a multi pronged attack. The constitution must ensure that there

is an:

independent judiciary

the State meets standards of fairness, transparency, effectiveness and the Conduct of an

organization or association with the rule of law

the government is accountable to the people

there is respect for human rights

there is social justice,

the poor and the marginalized have equal access

Most of the investigation and prosecution can be done by the police. There is no need for a special


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agency. The Parliament may establish specific independent committees to investigate corrupt

practices which are of national importance.

The actual appointment of members to special committees entrusted to execute justice must be done

by either the Judicial Services Commission or an appropriate independent body provided for in the

Constitution. The Commission is asked for a way to create really independent bodies.

Each department of government and organizations in the public sector should set up its own

mechanism for a regular and continued supervision.

The Commission set up to supervise and conduct Civic Education could also include a programme

on the nature and consequences of corruption in the society.

The state should also provide protection for whistle blowers until Fiji becomes a nation of whistle

blowers.

A more vigorous system of punishment should be meted out to those found guilty of corrupt

practices.

The Parliament should keep a close watch on the Executive and be quick to demand explanations or

institute appropriate enquiry on any signs of corruption. The whole society, the media, the

Parliament, the NGOs should all act as watchdogs on people providing service to the citizens.

Independent Commissions and Officers

In making one man, one vote, one value, non-negotiable, the sense of security, real or imagined, that

existed with communal voting should be addressed by the creation of independent commissions,

institutions and agencies which would ensure that the communal and individual concerns of the

citizens are secured.

We have had some such commissions before but the partisan appointment of members of these

commissions, as merely tools of the Government in power, has marred their effective functioning.

It is important that whatever and whenever such Commissions, institutions or agencies are created

under the Constitution, the mechanism of appointment of these bodies are seen as independent and

free of any extraneous influence from Government or any other social or political agent. The


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Parliamentary Select Committee as an overseer of State Affairs can also behave in a partisan way if

the members are not people of integrity. The system should allow them to act independently once an

issue is brought before them.

The Judicial Services Commission may be charged with the additional responsibility for

appointment. The Commission may utilize its wealth of experience and wisdom to recommend an

appointing body.

Some of the bodies that have been known to exist for this purpose include:

Electoral Commission:

Should be independent and remain in existence at all times.

The voter registration should be religiously updated annually.The Election Commission should be absolutely free of the Government. It should be

adequately funded to carry out a free and fair election.

Independent Auditor General

An ombudsman

Human Rights Commission

Judicial Services Commission

Independent Commission for the Protection of Cultural, Religious and Linguistic

Communities

Anti Corruption Commission

Independent Office of Director of Public Prosecution

Independent Public Service Commission which should be responsible for Standards in

Public Life

An independent Reserve Bank

International Conventions

The Constitution should give pride of place to the Universal Declaration of Human Rights.

It should also acknowledge and endorse international instruments governing human rights

provisions including all conventions and treaties ratified by the Fiji Government. Amongst them:

Convention on the Right of the Child

International Convention on the Elimination Against Women

International Convention on the Elimination of Racial Discrimination

Convention on the Rights of Persons with Disabilities (Not yet ratified but should be)


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Human Rights:

The Constitution should contain provisions for safeguarding the entire set of rights associated with

living in a democratic state.

Amongst them the right to education, food, housing, health and healthy environment should featurestrongly.

Every citizen has the right to meaningful work, fair treatment by employers, the right to form

associations and unions to foster any of the rights, particularly to be able to form unions to bargain

with employers for salary and better conditions of work.

Every human being has the right to equality. In the Fiji society men and women should be entitled

to the same rights. There should be no discrimination on the grounds of race, religion, disabilities

and sexual orientation.

Human rights should be limited only when it is reasonable to do so. The reasonableness of a

limited right should be determined by the Court.

Existence of an Upper House

A lot will depend on the Commissions recommendation on the type of Government. The usefulness

of an Upper House has increasingly been questioned. It will lose one of its major purpose if the

Constitution is going to compromise the role of the Council of Chiefs. The group rights of the

iTaukei Community for which the Upper House traditionally acted as a custodian of will have to be

entrenched elsewhere.

If the select committee system is given its due recognition and made to work effectively and

responsibly there will be less need for a second House of review.

Similarly any other check and balance maintained by an Upper House should become the

responsibility of Independent Commissions and Agencies provided for under the Constitution.

If however, the Constitution Commission finds that it is making too radical a departure from past

practices and stands a danger of being rejected by the Fiji community, it could continue to keep the

Upper House with the President being responsible for the appointment with recommendations from

representatives of legitimate, registered and recognized NGOs, provincial councils, school

management association, and trade unions.


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The criteria for selecting members of the Upper House should be the same as those of Members of

Parliament.

The Upper House should act independently and shall only have powers to review and delay. It shall

not be able to delay any money bills.

Fijis Dual Administration

Fijis dual administration is also part of the vestiges of our Colonial past.

The Darwinian desire to preserve all species in their primordial form had broadly, determined the

Colonial Policy of safeguarding indigenous people from the then modern day commercial

exploitation of its people and their resources.

Such a framework had resulted in creating a different set of principles for iTaukei administration

and for paternalistically shadowing the iTaukei from the full impact of colonial commercial

culture.

It meant that rudiments of pre-contact social structures were used to construct an administrative

system. The Council of Chiefs and the Confederacys are part of such a construct. The Provincial

Councils, village courts and turaga ni koros are all vestiges of separate administration.

Some of these have been reformed over a period of time.

Once a system is put in place and begins to serve a function, the community takes total ownership.

Thus, the creations of yesterday are seen today as part of a tradition.

It is the iTaukei community, therefore, which should rightly determine what and when they want

to do away with their own institutions.

The Provincial Administration could well become part of the central and district administration but

the Council of Chiefs has grown to fulfill an emotional and psychological need of the iTaukei

community. In the 1997 Constitution it was given some additional roles as well. These roles had

emerged from a continuing fear of loss of ownership, culture and tradition. It is the iTaukei that

should decide whether these fears are still there.


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The Constitution could provide for affirmative action to young chiefs to make the transition into

professional and business life of the country. A new source of power base, more attune to a growing

urban, egalitarian society may be a way to encourage a modern transformation. A need has already

been expressed in some quarters to provide affirmative action for Fijian entrepreneurs. Some chiefs

are already adapting well to the new commercial culture.

However, the specific future of the Council of Chiefs, as an institution, should be the preserve of the

iTaukei community. The State should only play a role to wean the Council into mainstream

administration and business life. An attempt to destroy overnight an arrangement which presumably

continues to play an important role in the life of the iTaukei community could be counterproductive

and undesirable.

Land

Land issues have been a major source of conflict in Fiji. Most conflict has been based on imagined

fears of landowners. The constitution should clearly state that communal and individual property

rights including land will not be interfered with by the State. Land for development purposes can

only be utilized by the full consent of the owners of the land.

However, land usage and leasing mechanisms may be better rationalized by the State. Investment

capital and individual entrepreneurs would most likely favour dealing with a single institution

regulating land usage.

The iTaukei owners must be paid a fair economic rental for the land they lease. Ownership of all

other land including freehold land must be guaranteed.

Residential pieces of land leased for such a purpose should be on the basis of perpetual lease if the

occupant so desires. There can be no other single factor which can provide a real and a meaningful

sense of belonging to the country.

Local Government

One of the reasons for the continuous lapse of democratic principles in Fiji can be attributed to the

fact that democratic values and principles have not completely been imbibed as a way of life in Fiji.

We seem to have made half hearted efforts to practice democracy but have perhaps only learnt to

use the rhetoric of democracy rather than living by democratic principles.

If we are to live by democratic values such values, should permeate all areas of life and living in

Fiji. It must be the complete modus operandi of the school system, the household, rural and urban

organisations and the local and national institutions of governance. It must, at least be the goals of

the Fiji society.

In this context the local government must be based on principles of democracy. The people within


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the rural and urban boundaries should be given an opportunity to decide and manage their own

affairs. It could provide the most useful and meaningful experience of first hand exposure to

democratic values, principles and governance.

The National Government must ensure that sound principles of governance are followed in the

administration of the local government. The affairs of the local government must be legislated byparliament. Where the functions of the national government overlap with those of the local

government, the areas must be very clearly defined under an Act of Parliament.

Affirmative Action

Fiji should focus on affirmative action based on actual surveys rather than a generalized belief on

weaker sections or areas of the communities. Recent surveys on poverty indicate that affirmative

action needs to be provided for all communities in rural areas. Even this may be an over

generalization. To be realistic it may be possible to ascertain conditions of rurality rather thanfocusing on rural areas, geographically, to identify where rural conditions are prevalent and then

direct affirmative action to those people affected by such conditions. The rural urban category may

be easier to delineate using geography as the guide, but poverty is not necessarily confined to

geographical boundaries only. Poverty in urban squatter areas cannot be ignored because it falls

within an urban boundary.

Affirmative action must be targeted and monitored.

The MilitaryThe military is no longer seen as the protector of civil authority. It has outgrown any perceived fears

of foreign invasion which may have determined colonial policies to provide for a military buffer to

prime colonial possessions of Australia and New Zealand. The military in Fiji is no longer required

to defend any colonial interest. It is clearly an appendage of our colonial past.

Having tasted political power, there can be no guarantee that the military will not usurp political

power again.

It appears that every ten years or so, there is a bottle neck of military leaders on the top who havenowhere to go. It leaves little option but to take over civilian control and redistribute its top

leadership into political appointments in Government. This has been a repeated phenomena in Fiji

politics.

It is likely to continue until the military finds an enlightened leadership agreeable to limiting its own

numbers and confining its activities to peacekeeping and civilian activities which require a more

disciplined labor force to conduct emergency business during natural disasters, etc.

The military must be commended for its tenacity and perseverance in the way in which they have

conducted the business of the state, no matter how short sighted their vision for the country has

been. If democratic governments in the past had carried out their work with the same dedication and


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perseverance it would have been very difficult for a military, no matter of what size, to wrench

democratic control from civilian hands.

The constitution should provide for an honorable exit for the military from civilian preoccupations.

Military personnel should be provided with redundancy packages and assisted to settle to work in

regular civilian life.

The peacekeeping activity should be regulated and executed as a one or two time operation for each

officer. Thereafter, they should return to civilian life.

International agencies requiring peace keeping services should provide for the training and payment

of emolument for their services.

The predominant ethos of military training and work should be predicated on an overriding and an

all encompassing philosophy of subjugation to civilian authority and control. There can be no

exception to this. Any breach of this fundamental principle should incur severe punishment.

Compact

The Chapter on the COMPACT in the 1997 Constitution was an innovation and should be kept. The

idea that the various communities, institutions and the people of Fiji should come together and

voice their aspirations in a compact with themselves to adopt a constitution based on values of a

secular state, respect for human rights, and the rule of law in a parliamentary system of democracy

is a laudable one and should be maintained.

Civic Education

Democracy has never really been a way of life for the Fiji people. A mere adoption of democratic

forms has not completely allowed the seepage of democratic values in the manner of our thinking,

administering and governing ourselves. Forms of democracy has been adjusted and readjusted with

every constitutional change in the past. No conserted effort has ever been made to inculcate

democratic principles in all facets of governance. Indeed some institutions and organisations within

Fiji have been allowed to exist and conduct their affairs in total contradiction to democratic values.

We can no longer continue to live with this contradiction.

One way to get the people of Fiji to fully appreciate democratic principles and values is by

conducting a massive and continuous programme of civic education. It has to be fully resourced by

the State; be independent; have the capacity to manage and organize its own civic education

programme; be able to supervise similar programmes conducted by NGOs; be able to supervise

civic education curriculum in schools and conduct awareness and understanding of democratic


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values and principles to adults, parliamentarians, police and the military.

It could be part of or independent of a national education advisory board appointed by the

Parliament to oversee all national curriculums including that of civic education.

In addition to specific fund set aside by the State the body should be able to solicit its own funding

from independent sources. There should be no Government interference in the course material or

the principles and philosophies of democracy propounded by the civic education programme.

The number of coups in this country is symptomatic of the lack of awareness and understanding of

the citizens rights and responsibilities in a democratic state. The fact that Fiji citizens do not overtly

protest against the usurpation of democracy is indication of the lack of their commitment, andunderstanding of democratic principles. What is even more astounding is the changing allegiance of

the people to democracy. There has been no consistency of support.

Respect for human rights issues, democratic forms and principles are seen as being too remote to

the daily struggle of dealing with bread and butter issues. The relationship between human rights,

parliament, participative decision making are all substance for civic education curriculum.

The state has failed in the past to provide appropriate training and education on civic issues. The

entire Fiji society including children and adults should be the target for an ongoing education

programme.

Education and training curricular should not only provide technical skills but be able to prepare

individuals with critical analytical skills to examine government institutions, policies, operations of

parliament and decision making processes. There is very little critical analytical training for an on-

going analysis of social, economic and political issues.

Sadly our political leaders have shown a marked short fall in these areas. Dissent, a fundamental

behaviour in a functional democracy is often frowned upon by leaders. Faced with chairing

dissenting views most leaders find themselves unable to synthesize the issues.

RecommendationThe Fiji Constitution should provide for an Independent Commission or an Education Advisory

Board tasked with the work of supervising school curriculum and all civic education programme.


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The Commission should be adequately funded by the State and be able to solicit its own funding

from other independent sources.

The programme undertaken by the Commission should be on-going and not a sporadic effort made

before an election.

The Commission should be appointed by the Parliament on the recommendation of an independent

commission responsible for all appointments to public office.

Reconciliation, Peace and Truth Commission

In the education system; societal mores, thinking and behaviour; decision making processes;structures of individual and communal engagement, no concerted effort has been made to reconcile

differences amongst the various communities that make up Fiji. Instead of laying foundations of

peace and togetherness political leadership has often fanned animosity, jealousy and greed.

Visionary leaders have been marginalized.

The Fiji Constitution should provide an opportunity for individuals and societal groups to re-foster

common visions of share, care, peace and stability.

A known way to begin is perhaps to establish a truth commission to which past and present leaders

could make confessions of the articulate various forces, fears and apprehensions that had

conditioned their social and political behaviour. They are to be given an opportunity to talk about

forces and individuals responsible for coups in the past.

Those who would tell all should be recommended to parliament for pardon. Anyone subsequently

found to mislead or tell lies to the Commission should be punished for treason.

It would be easy to blame and to apportion total responsibility and punishment to the military

leaders who conducted the coups. But this, in my view would be totally unfair. In all coups there

have been people behind the scene who have prodded individuals and the military to conduct coups.Unless we get to know who these people are and what motivates them we will never be able to stop

coups in the future. Fiji society deserves to know who have been the real movers and shakers in

destabilizing the state.

If those who lurked in the background came up before the Truth Commission they should be

recommended for pardon as well. Otherwise, full investigation and due punishment be meted out to

those found guilty of perpetrating coups in the country.

There should be no amnesty before confession. Reconciliation, Peace and Truth Commission maybe the way forward.


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Documents

Krishna Datt Submission