Students at the University of Fiji Justice Devendra Pathik School of Law have sent a draft Constitution to the Prime Minister for his consideration, proposing that future unconstitutional seizures of government would not be protected by immunity, while Fijians would gain specific constitutional protections covering artificial intelligence, personal data, digital privacy and internet access.
The proposed Constitution was drafted by second year Constitutional Law 205 students over a period of two weeks as part of their assignment for the course.
The students believe that their Constitution encapsulates the kind of future that people of our generation would like to see.
The draft says no law, decree, regulation, executive order or other instrument would be allowed to grant immunity to anyone participating in a future unconstitutional seizure, suspension or attempted seizure of governmental power.
It also states that the courts would retain jurisdiction to determine the legality and constitutionality of conduct connected with an attempted or completed unconstitutional seizure of power.
A person would also not escape accountability solely because they acted under orders, held public office or acted in the name of national security.
The draft also says any question about its continuation, limitation or removal would have to be addressed consistently with the rule of law, legality, judicial independence, fundamental rights and the prohibition against retrospective criminal penalties.
It says Parliament may provide for an open and transparent national consultation process on historical immunity and constitutional accountability, while no historical immunity should be interpreted more broadly than its lawful terms.
The draft also allows lawful mechanisms for truth, reconciliation and national unity to be established but says these must not be used to create future blanket immunity for unconstitutional conduct.
The draft says the RFMF would defend Fiji's sovereignty, territorial integrity and internal and external security in accordance with the Constitution and law, but would remain under civilian constitutional authority.
It expressly states that the military must not form, control, suspend, replace or otherwise seize the functions of a democratically elected government.
The military would also be prohibited from interfering with elections, Parliament or the Judiciary unless carrying out a specific lawful function expressly authorised by the Constitution or legislation consistent with it.
Members of the military would be required to obey lawful orders but would not be required to obey an order that is manifestly unconstitutional or unlawful.
The draft further states that abuse of military power would be subject to investigation and appropriate legal or disciplinary consequences.
The proposed Constitution also provides protection to a person's communications, personal information and data, and digital communications, while also providing protection against unlawful surveillance and the unlawful collection, use or disclosure of personal information.
It also gives every person the right to reasonable protection over how their personal information is collected, stored, used and disclosed.
Digital identity, communications and information are also protected from unlawful access, theft, manipulation or misuse.
The draft states that any limitation of these privacy rights would have to be prescribed by law, pursue a legitimate constitutional purpose, and be reasonable, necessary and proportionate and the State would have to demonstrate that any limitation of a constitutional right is justified.
The draft also proposes a right to reasonable and affordable internet access, with particular consideration for rural, maritime and underserved communities, while internet access must not be arbitrarily or discriminatorily restricted.
The draft further says AI and automated systems used by government would have to be subject to safeguards, transparency, accountability and human oversight.
A person whose important rights or interests are significantly affected by an automated decision could, where appropriate, have the right to know that AI was materially used, receive an understandable explanation, request human review, challenge an unlawful or discriminatory decision and obtain an effective remedy.
The students also propose replacing the single-chamber system with a bicameral Parliament consisting of a 71-member House of Representatives and a Senate.
Of the 71 members of the House of Representatives, 35 would be elected from geographical constituencies and 36 through proportional representation, while the Senate would be appointed by the President after consultation with Fiji's communities.
The draft also says the Senate would be appointed by the President after consultation with Fiji's communities, with its detailed composition, appointment or election method, qualifications and procedures to be prescribed by legislation.
The students also propose a maximum parliamentary term of six years from the first sitting following a general election.
The draft says an election must be held before the maximum term expires and Parliament cannot continue beyond that term except in circumstances expressly permitted by the proposed Constitution.
The draft also introduces specific recognition of future generations, requiring the State to take reasonable account of their long-term interests and rights when making decisions involving the environment, natural resources, technology, artificial intelligence, public finance and national development.
The draft Constitution has been sent to Prime Minister, Sitiveni Rabuka, and the students hope their voices will be heard.
