Constitutions and Stuff

If you thought Fiji had set records in the world of constitutional law, you would be wrong.

We have a long way to got to match the Dominican Republic who have had in total thirty-eight different constitutions.

We can only hope we get nowhere near that record. Nevertheless, we have had plenty of experience on this subject and once again debate raged in the Parliament over the Government's bill to seek to change the rules governing amending the constitution.

We won't go into the details as you would have had to have been buried deeply under an avalanche of rocks if you were not aware of the extraordinary provisions the Bainimarama regime imposed in the 2013 constitution that effectively block any amendment for now and ever more.

Last week, YB sat astonished watching former members of the Bainimarama Government proclaim loudly and with absolute straight faces their defence of the 2013 constitutions.

Terms like freedom, protection of the people etc were repeated and it was interesting to see how many, particularly on social media, got sucked in by this 'noble' position forgetting the way in which the constitution was drafted with lack of consultation and forced upon the people of Fiji by these very same people anxious to promote their democratic credentials.

Remembering also that the Yash Ghai constitution, which was drafted after wide consultation and the apparent support of Bainimarama, (after all it was his commission), was torn up and burnt in front of Professor Ghai before he was kicked out of the country! This same group of 'democrats' have been celebrating their 'victory'; following the failure of the Bill to reach the 75% threshold.

Perhaps the party is a little premature. As Minister of Lands Filimoni Vosarogo has pointed out in various social media posts.

The rejection of the bill will in fact strengthen the hand of the Government when it enters the next phase that is taking the matter to the Supreme Court. You see the issue of being unable to 'reasonably'; change a constitution has not been viewed kindly by courts of law internationally.

YB learned a new term this week 'necrocracy'; where the dead hand of the past prevents future generations from exercising their democratic rights and yes that includes being able to amend one's own constitution.

This is especially frowned upon when the constitution was not a product of a genuine democratic process. All of this is common sense.

We have no idea of the challenges facing future Fijians so to impose any laws that are impossible to amend to meet future needs is foolish.

We attach to this weeks column an excellent analysis by Professor Anne Twomey Professor of Constitutional Law at the University of Sydney.

She suggests that the Courts might look favourably on a submission seeking to change these provisions BUT they need to be very clear on a couple of fronts.

First that the provisions make the constitution unamendable and last week's failure in Parliament will help prove that - check.

Second that the process of drafting the constitution was undemocratic - check.

Third, that any review is deeply rooted in the democratic process. This means wide public consultation followed by endorsement by a majority of the Parliament AND a referendum where the majority of voters approve the amendment.

That last bit will be interesting as YB notes the failed bill tried to short cut the referendum part which quite rightly leaves many uncomfortable. Changing a constitution must always have reasonable barriers that require wide public support, especially in a multi racial nation like Fiji.

We also cannot go forward as a nation without a constitution that has been legitimised by the people of Fiji in a democratic manner AND allows for change where required.

Meanwhile debate rages on social media and the PM's Rolex.

Whatever its source, wearing it was not a clever move. Public opinion can swing on the simplest of things, like, as many politicians have found, not knowing the price of bread.

Wearing a watch worth allegedly over $150,000 is the kind of thing that can haunt you and dismissing the issue without comment will only make it worse.

Finally, while the passing of updated legislation regarding the Auditor General's Office is welcomed (see last week's column), YB is a little puzzled as to how a bill preventing children under thirteen from going to the movies on their own managed to fast track its way through Parliament.

Really. We can understand stricter enforcement of movie ratings, but you want to stop kids from being able to watch a Disney movie without adult supervision.

That seems a bit excessive and a strange priority when there is a log jam of legislation waiting to be revised and passed!