FIJI’S CONSTITUTIONAL POSITION: WHY LABOUR MUST RETURN TO POWER

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FIJI’S CONSTITUTIONAL POSITION: WHY LABOUR MUST RETURN TO POWER

By Rev. D. G. Arms

SUVA, Fiji Islands (June 21, 2000 - Fiji Times) When Fiji’s 19th of May coup took place, there was an immediate cry of outrage and a widespread call for the reinstatement of the Chaudhry government and the rigorous following of the 1997 Constitution. Those two aims must remain top objectives (along, of course, with the safe release of the hostages).

Unfortunately, there has been in a number of quarters in Fiji (especially among some of the indigenous people) and even in a few quarters overseas (which had been unanimous in their condemnation of the coup) a tendency to pull back from these objectives and concede ground to the hostage-takers on several of the issues they raised. This is absolutely unacceptable. The power of the gun must not be allowed to dictate policy. To make such concessions will only open the way to endless violence of this kind in Fiji’s future, and to a spate - (excuse the pun) of similar problems in other countries of the Pacific (as we have already seen happen in the Solomons) - not just island nations, by the way, but Australia and New Zealand too. If people see that violence is rewarded and that the peaceful efforts of right-thinking citizens are ignored, this can only result in a large increase in lawlessness throughout the region.

At the outset the President seemed determined to follow the proper constitutional path. Very quickly, however, he wavered, when he first announced that he could not guarantee the return of the Chaudhry government.

The return of the Chaudhry government was, and is, an absolute essential for upholding constitutionality and the rule of law.

One might like to argue that it would not in fact be prudent for Chaudhry to continue as Prime Minister, or even for the People’s Coalition to continue at the helm without seeking another mandate. Or one might suggest that they should continue to lead, but make arrangements for a more widely consensual resolution of important matters, especially those of a sensitive nature to the indigenous people. They might even arrange to have an impartial study made of certain parts of the 1997 Constitution, changing them according to the parameters laid down in that Constitution if that were thought desirable. But all these are issues for the reconvened Parliament to consider.

Constitutionally, it is up to those elected representatives, and no one else, to make those judgments (after the hostages have been released and had sufficient rest, of course, and after they have been fully briefed and given time to weigh up the situation).

The President's initial respect for the Constitution later took a more questionable turn when he purported to dismiss the Chaudhry Cabinet, having prevailed upon Ratu Tevita Momoedonu to assist him in this. Shortly after this, he ignored the Constitution altogether, fleeing the President’s residence and passing over executive power to the Army. The Army then made things worse, first by putatively revoking the 1997 Constitution and then, after dallying with the Speight group as the Great Council of Chiefs (GCC) had done, by deciding to set up an Interim Government whose composition and term of office is at this juncture not at all clear.

Where does this leave Fiji constitutionally? Firstly, as is clear to most, Speight has no power to revoke the Constitution. What is equally true though, is that the GCC and the Army have no power to revoke or change it either! The 1997 Constitution was passed after massive consultation (though no referendum) with the people, being passed unanimously by both Houses of Parliament and the GCC. Not even the will of the majority may change the Constitution. Section 191 (2) of the Constitution requires than at least two thirds of both Houses of Parliament approve a change to it, and there are additional safeguards as well. These provisions exist precisely to protect all sectors of society from domination by any other group.

The disenchantment of some with either the Constitution or the Government of the day gives no right to any group to revoke that Constitution, especially when there has been no sincere effort to address real or imagined wrongs through available legal processes. The petitions that had been brought to the government were in fact being addressed. It is clear that for many, their so-called grievances were only an excuse to destabilize the country and pursue personal and/or racist objectives.

Whatever shortcomings the Chaudhry government had in no way merited their being couped. Indeed it was a part of the destabilization campaign to ignore the good things the Chaudhry government did, and to exaggerate, distort, or even invent, bad things.

There is another serious question to be asked too. Is it only Speight who is holding guns to the Chaudhry government’s heads to negotiate a deal? Have not others in effect been doing the same? Some have professed to sack the Chaudhry government, throw out the 1997 Constitution and make other moves detrimental to the interests of the People’s Coalition (not to mention the people of Fiji as a whole) while Chaudhry and his government are being held hostage. Chaudhry was accused at times of being insensitive, arrogant or disrespectful, but what of the insensitivity, arrogance and disrespect of those people who discuss and plan the future of Fiji without involving the elected government of the people at all? Not only that, but they have been so incredibly racist as to exclude Indo-Fijians from the discussions entirely!

Theoretically, of course, it could be claimed that all this negotiating is mere posturing. No deals made with a hostage-holder have validity. Thus, when the hostages are released, all resignations, proposals and agreements can be reneged upon and more genuine negotiations take place involving all sectors of society. That certainly is what all pressure groups, including outside governments, should try to persuade the current leaders. But the present trend seems to be different. Whether we consider the actions of the President, the Army, the GCC, or more recently the Western chiefs, these various groups of people seem to have acted with real intent to follow on in the direction they are currently heading: abrogating the 1997 Constitution, installing their own government, and changing the Constitution willy-nilly to further favor indigenous interests. So where are we constitutionally?

Firstly, as stated above, neither Speight, the GCC, the President, nor the Army has the power to revoke or change the Constitution (see Section 190). The situation of the government being held hostage is not envisaged by the Constitution, but the President certainly did correctly in invoking the executive authority given him by Section 85. His deal with Momoedonu, however, is wrong constitutionally (even though Ratu Mara claimed his actions to be on the fringes of constitutionality, or some such term). Section 96 makes it clear that the President acts in his own deliberate judgment only as prescribed within the Constitution. Section 99 (1) says quite clearly that the President appoints and dismisses other Ministers on the advice of the Prime Minister. Even though according to Section 106 the President may appoint acting ministers (including an acting Prime Minister), Sections 96 and 99 make it clear that this can only be done on the advice of the Prime Minister.

The whole operation with Momoedonu, therefore, was unconstitutional, as he was not properly appointed. It was also wrong on other grounds. The President instructed Momoedonu beforehand what he was expected to do: have the Cabinet dismissed, have Parliament prorogued, and then resign. But this is backwards. It is not the President’s job to tell the (acting) Prime Minister what to do about Cabinet and Parliament. It is the (acting) Prime Minister who is to determine such things and then instruct the President accordingly. By putting pressure on Momoedonu to act in this particular way, the President was acting improperly. It was reprehensible from another point of view too. What good was it supposed to do to dismiss the legitimate Cabinet? Was that a fitting way to treat innocent hostages?

A further interesting point is that, even had Ratu Mara’s actions with Momoedonu been constitutional, all that was achieved was that the Ministers were dismissed and Parliament prorogued. But both Houses of Parliament are still intact, as is Prime Minister Chaudhry’s position as Prime Minister. Section 99 (quoted above) refers only to "other Ministers." A Prime Minister may not be dismissed except under the circumstances of Section 109 (1), which clearly did not take place. And of course, when Momoedonu resigned, he resigned only as (so-called) acting Prime Minister. The fact that he resigned can in no legal or sensible way be taken as meaning that Prime Minister Chaudhry also resigned! Thus, even if the dismissal of Cabinet had been constitutional, Prime Minister Chaudhry, when freed, can instruct the President to appoint a new one (or, for that matter, the same old one).

Similarly, it must be pointed out that, although the President prorogued Parliament (Section 59 (2)), he had also declared a state of emergency. Section 188 (1) declares that "upon the proclamation of a state of emergency, the President must summon the House of Representatives to meet."

As soon as the hostages are released therefore, the House must meet. (Note that by Section 188 (2) the House would have had to meet even if it had been dissolved - all the more so then when it has only been prorogued). Once the House meets, they have the power to "disallow" the state of emergency (Section 189 (1)) or make whatever other provisions they deem desirable.

Prime Minister Chaudhry too, of course, can instruct the President to lift the prorogation of Parliament. Certainly if the state of emergency can be disallowed, the prorogation of Parliament made because of it can also be disallowed.

The President acted in disregard for the Constitution when he passed over executive power to the Army. There is no provision in the Constitution allowing him to do this. What’s more, it was totally unnecessary. He is the Army’s Commander-in-Chief (Section 87). He could have given the Army quite a free hand while still remaining in charge. If because of his age, his extreme unpopularity among the hostage-takers, or the fact that his offspring is being held hostage, he felt he should vacate the position at least for a time, he should have handed over his authority to the Vice-President as provided for in the Constitution (Section 88 (2)).

The reinstatement of the Chaudhry government and the due following of the 1997 Constitution must remain the prime goals of present activity by foreign governments and those many groups inside the country concerned for democracy and the rule of law. The way Fiji is headed, it will become a pariah state, incurring trade boycotts, sporting bans, and other sanctions that will be hard on ordinary people. But the goals of freedom, justice and equality cannot be attained without sacrifice. Those who support such penalties are not to be viewed as enemies of the State but rather its best friends. They are trying to bring bad leadership to its senses, make it move with the times and conduct itself according to the basic norms of civilized society.

It is better to make a strong concerted effort that brings quick results, even at the cost of some suffering, than to let Fiji drift steadily further into racial prejudice, moral bankruptcy, economic decline, and a protracted struggle - things that will raise the levels of tension and unhappiness throughout the country over a long period, and create greater overall distress. Better a timely amputation than a protracted painful death from gangrene.

The blame for our troubles must be put squarely on those who conducted the coup and those who are supporting or accommodating them, not on those who are supporting bans or the like, for such strong measures are definitely necessary. It has been quite disturbing to see how the half-hearted measures employed after the 1987 coups have even been cited by George Speight’s group as a reason not to worry about their illegal activities. Their illegal regime will be accepted, and normal economic and other ties will be resumed soon enough, they claim. They have noted how violence was rewarded before. This must not be allowed to happen again.

Even if the prospects for the restoration of true democracy seem bleak, they also seemed bleak in 1987. There is a large pool of good and honest people, whose religious and moral principles can be relied upon to steer them towards justice (not like those who blasphemously employ violent and unjust means to proclaim a so-called Christian (?) state). Under God, it is on these good people we must rely to restore Fiji’s integrity. That is what democracy is about.

David Arms is a Catholic priest who has researched and written widely on Fiji's 1997 constitution. He is a member of the Citizens' Constitutional Forum.

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