Kakaivalu biased political stance, obviously slanted towards the SDL party, may have prompted to him to establish a flawed position (since the article bears no author's name)about the Peoples Charter and the amendment of the 1997 Constitution.
The excerpt of the Fiji Sun article:
The constitution and the People’s Charter
Last updated 11/16/2007 8:58:01 AM
The new vehicle for the way forward for Fiji is the Peoples Charter.
Military spokesman Lieutenant Colonel Mosese Tikoitoga in a media statement said the military would force changes in the charter for the people to see better future leaders of the country. He also said the military remained firm on its stand that politicians seeking to contest the next general election would see what the charter will have on them.
So we must expect changes in the Charter. In his address at the 68th United Nations General Assembly in New York Interim Prime Minister Voreqe Bainimarama told delegates that “Fiji’s situation is not only complex; its problems are deep rooted”. There are no quick fixes. The country now he says is at a very critical cross-road; its situation could escalate into more serious deterioration and instability. It is imperative that any such greater disaster or civil strife is averted.
[Bainimarama] urged the international community to help develop for Fiji a political and governance framework that would be truly democratic, accountable, inclusive, equitable, and non-racial and which unified Fiji’s diverse communities as a nation.
The Peoples Charter is the Government’s vehicle for this and will tackle the challenges at three levels and they are:
- to restore stability, law and order and confidence;
- to strengthen institutions for good governance including transparency and accountability and an independent and effectively functioning judiciary;
- to carry out major reforms in the economy
PM Bainimarama said at the UNGM: “The Peoples Charter, once formulated and adopted will provide the strategic framework or fundamental foundation within which the interim government and also successive elected governments will be expected to operate. “In the current absence of an elected parliament, there is the issue of legitimacy and mandates. To deal with this, the interim government is willing to consider putting the draft Peoples Charter to a referendum to get the mandate of the people for the fundamental changes, including changes to the Constitution of Fiji, as may be considered necessary.”
At the Pacific Islands Forum held in Nuku’alofa, Tonga the PM said: “To address our fundamental problems that have besieged Fiji and help us realise our vision, my government has launched a major national initiative which will see the establishment of a 40-member National Council for Building a Better Fiji (NBBF) and the proposal to develop the “Peoples Charter for Change and Progress (PCCP). Through the PCCP a broad cross section of Fiji’s people will be fully engaged through consultation and participation to develop a comprehensive agenda of action and measures to address in a systematic and comprehensive fashion the long outstanding fundamental challenges. It will then provide strategic framework for successive governments.”
Already there is opposition to the charter. The ousted Laisenia Qarase-led Soqosoqo Duavata ni Lewenivanua Government has strongly opposed the move. In an interview Mr Qarase said: “The SDL Party’s stand against the proposed People’s Charter for Change and Progress remains. We are opposed to the charter for very good reasons, some of which are:
- the preparation of a charter, if necessary, should be left to an elected government
- the interim regime lacks the popular mandate necessary to prepare such an important document
- the proposed charter cannot bind future elected governments
- the legality of the charter would be questionable
- the charter cannot supersede the Constitution which remains the supreme law of the land
- the rights of indigenous Fijians are excluded from the charter.
We should accept changes in the new Charter. The question that we need to ask is: How will the People’s Charter merge into the constitution? Pacific Island Forum leaders have given their support to Mr Bainimarama for the changes.
However, speaking on behalf of the Pacific leaders Tongan Prime Minister Feleti Sevele said: “I think we have made it quite clear that Fiji will continue on the existing constitution and the laws ... Anything beyond that is not acceptable.”
He made this comment after the Fiji PM said his government might change the constitution before the election.
From the outset we can confirm that some changes that have to be made will not be in accordance with the constitution thus making it unconstitutional. One change is the removal of the communal voting system which will end communal seats in the next parliament.
Communal seats date back to the early 1900s. In 1904, the British colonial authorities reserved seven seats in the Legislative Council for European voters; in 1929, provision was made for wealthy Indians to elect one representative also. Indigenous Fijians were represented by nominees of the Great Council of Chiefs and did not vote directly for their representatives until 1966.
In the 1960s, the Indo-Fijian dominated National Federation Party (NFP) began to press for universal suffrage on a common voters’ roll. Indigenous Fijian leaders opposed this demand, fearful that it would favour Indo-Fijians, who then comprised more than half of the country’s population. As a compromise, a number of national constituencies were established, allocated ethnically but elected by universal suffrage, but 25 of the 36 seats in the Legislative Council remained communal.
In the 1970 Constitution leaders then agreed to establish a 52-member House of Representatives with 27 communal and 25 national constituencies. Indigenous Fijians and Indo-Fijians were each allocated 12 communal constituencies; minority groups were allocated 3.
After the 1987 coup and with the abrogation of the 1970 Constitution a new 1990 constitution was put in place. It made all parliamentary seats communal, with a built-in indigenous majority. 37 seats were allocated to indigenous Fijians and 27 to Indians, despite the near parity of their population numbers at that time. 5 seats were assigned to minority groups. The 1990 constitution was revised again in 1997-1998. Again the communal seats were retained with 23 seats allocated to indigenous voters, 19 to Indo-Fijians, 1 to Rotuman Islanders, and 3 to minority groups; the remaining 25 represented open constituencies.
The new change will have to be made but we need to answer this question: How can this change be done when we don’t have a parliament with the 1997 Constitution still intact? Amendments or changes to the constitution can only be done in parliament. Can it be done through a referendum? The constitution is silent on referendum so the outcome if the interim government goes ahead with it will be unconstitutional.
Commenting on the matter New Zealand Prime Minister Helen Clark said and I quote - “I don’t think the commodore himself has a clear idea of how these changes can be accomplished in a constitutionally credible manner.”
The process forward in Fiji she said had to be credible. That rules out, I must admit, any changes to the constitution. The problem now faced by the interim government in moving the country forward has been created by the Prime Minister when he dissolved parliament when he had executive authority with him after the 5th December military bloodless coup.
PM Clarke said: “This is the problem when you close down your parliament and act in a way that is clearly unconstitutional and illegal and finding a pathway back from that is tortuous.” So what is the way out now to make the Peoples Charter work?
We know for the fact that the constitution cannot be changed or amended without a parliament.
The charter if passed, will be a dictatorial document as it will force successive governments to adhere to something that they do not support.
What will happen if a new government throws out the Charter because it is not part of its manifesto? Will the military come in again with their guns and take over power?
To make it work the only other option is to abrogate the 1997 Constitution but this as PM Clark had said, it would be tortuous.
Another question that we need to ask is: What will be the new course taken by the interim government if the people through the referendum reject the Charter?
Although, the Fiji Sun Editor raises some serious questions about the amendments to the 1997 Constitution; the Constitution has provision for it to be amended, however under the Parliament. However, since there is no Parliament, the proposed referendum, may rest the matter of legitimacy for good because referendums are more of a direct democracy than Parliament. Since a referendum was not called in the establishment of all 3 Fiji constitutions, 1970, 1990 and 1997 respectively; all have failed the nation. Perhaps a referendum was the missing link. What if the people choose not to have the People's Charter inquires the Fiji Sun Editor? What if they do, retorts S.i.F.M.
The purest form of democracy in Fiji may in fact be unconstitutional. So what is better, 100% octane democracy or Constitutionalism which may in fact be a watered down version of democracy?
In a paper by Constitutional Expert Yash Ghai and Jill Cottrell titled "Constitution Making in Fiji: Context and Process" highlights the hindered process called democracy, when the timing and sequence of events are called into question:
A quick count of individual submissions (relying on names 18) indicates that presentations were made by 114 Fijians, 88 by Indo-Fijians and 21 others. Among the organizations that made submissions, local churches clearly predominated. It is clear that many of the views presented were orchestrated. A bit like an Amnesty International campaign, standard forms of presentation were made available by political parties and other groups for their members to sign and submit. Lal wrote of a submission by the Arya Samaj ‘which will be repeated – worse, read word for word – countless times in the days and weeks ahead’. 19
But by no means all were of this type. The speed with which the commission embarked on tours around the country and overseas was only possible because it made no attempt to undertake any form of civic education (neither its deadline nor resources allowed any other option). Although the level of literacy in Fiji is relatively high, and the previous few years had been very political so there was probably a high degree of awareness of the broad concept of a constitution, the population at large was almost certainly uninformed about the details of the constitutions which had prevailed in the country, and certainly of the options.
Indeed,the events of the previous 6-8 years would almost certainly have led the ordinary person to think merely in terms of the system of government and electoral systems - in other words of the question of how the constitution could prevent (for Fijians) or not obstruct(for Indo-Fijians) the coming to power of another ‘Indian dominated’ Government.
It is easy to criticise the commission for lack of civic education, as we do ourselves. But we must remember the constraints of resources and time over which it had no control. We should also note that the commission was under some pressure to dispense even with public hearings (including from both Reddy and Chaudhry), on the grounds that there had been sufficient articulation of constitutional options and presentation of submissions to previous commissions.
Fiji as a society has come to an important political junction. The calls for Fiji to return to democracy by the international community has been heard before, first in 1987 and then again in 2000. On both occasions, Fiji followed the garden path of legalities that twist and turn. The question that is often trivialized is whether, the path used in 1987 and 2000 actually brought Fiji back to the direct democracy-the purest form?
While Fiji Sun Editor quotes from the New Zealand Prime Minister, Helen Clark on the subject of Constitutionalism:
“This is the problem when you close down your parliament and act in a way that is clearly unconstitutional and illegal and finding a pathway back from that is tortuous.”
Sadly, the Fiji Sun editor either neglects the fact or selectively omits that New Zealand does not have a constitution. New Zealand's supreme law is a collection of statutes (Acts of Parliament), Treaties, Orders-in-Council, Letters patent, decisions of the Courts and unwritten constitutional conventions. There is no one supreme document — the New Zealand constitution is not codified or entrenched. It would appear, that Clark or the New Zealand Government as a whole should be the last to talk about unconstitutional matters, as an article published by International Herald Tribune outlines.
In addition, Fiji Sun Editor quoted Tonga's Prime Minister, Feleti Sevele:
“I think we have made it quite clear that Fiji will continue on the existing constitution and the laws ... Anything beyond that is not acceptable.”
With all due respect to the Tongan Prime Minister, it is beyond the pale for a Country ruled by a monarchy to place any caveats on a democratic country that was torn by racial inequities and eroded by the ingrained corruption, compounded by a civil service run on Ethno-nationalistic paradigms.
It is also reprehensible for Tonga or her Prime Minister to comment on Fiji's multi-racial society when, their own nation places a quota on the number of person of Indian heritage living within their borders. Has this form of ethnic cleansing, ever been addressed by these egalitarian nations. Or does this just underscore the depth and width of hypocritical reasoning by people; who are willing to turn a blind eye to these nuances in good governance for their political agendas.
The Scottish Philosopher, John Locke who published "The Second Treatise of Civil Government" in 1690 is perhaps more knowledgeable and enlightened than Helen Clark. Locker lays out guiding legal principles and logic which Fiji as a society should examine, at this political juncture. The 19th and final chapter is titled "Of the Dissolution of Government" and present some justifications for Unconstitutional acts.
Sec. 211. HE that will with any clearness speak of the dissolution of government, ought in the first place to distinguish between the dissolution of the society and the dissolution of the government.
Sec. 214. First, That when such a single person, or prince, sets up his own arbitrary will in place of the laws, which are the will of the society, declared by the legislative, then the legislative is changed:
for that being in effect the legislative, whose rules and laws are put in execution, and required to be obeyed; when other laws are set up, and other rules pretended, and inforced, than what the legislative, constituted by the society, have enacted, it is plain that the legislative is changed.
Whoever introduces new laws, not being thereunto authorized by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative.
Sec. 220. In these and the like cases, when the government is dissolved, the people are at liberty to provide for themselves, by erecting a new legislative, differing from the other, by the change of persons, or form, or both, as they shall find it most for their safety and good: for the society can never, by the fault of another, lose the native and original right it has to preserve itself, which can only be done by a settled legislative, and a fair and impartial execution of the laws made by it.
Sec. 240. Here, it is like, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust? This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative. To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust?
If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?
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