Implementing Fiji’s new Constitution: A case for cautious optimism
The promulgation of Fiji’s new Constitution on 6 September marked the advent of a well-worn yet fraught path for the country. Fijians are embarking on a transition from arbitrary to constitutional rule for the third time in under twenty years. Elections are scheduled in September 2014 as a next step in the transition, but will space be created to promote and encourage a more democratic ethos and respect for the rule of law in the process? I have argued elsewhere that this Constitution is a foundation to build on. Yet, as the country moves into its implementation, one can only be cautiously optimistic and here is why.
Political will and institutional capacity
A key source of anxiety—as I have also previously posited—is whether the institutions established by the document, together with those exercising key governance functions will operate in line with the precepts of a democratic order. This is a legitimate concern for at least two reasons. For nearly seven years, Fiji’s power brokers have grown too accustomed to unfettered exercise of authority to be expected to suddenly acclimatize to the values of a democratic polity. Further, the army remains a constitutionally potent and dominant force in the country, with military officials having a direct role in policy making at all levels of the public service. How they interpret and execute that role, either arbitrarily or consonant with an institution under civilian control, will determine how firmly the spirit of democracy and the rule of law will take root.
A related concern is institutional capacity. The Constitution provides for the establishment of a number of key governance-enhancing institutions such as the Constitutional Offices Commission, the Accountability and Transparency Commission and the Human Rights and Anti-Discrimination Commission. However, these will take time to become operational meaning the judiciary, which is also considered key in this process, will shoulder a disproportionate responsibility in the interim. Yet, the institution is not fully equipped to effectively perform its oversight functions due to restrictions imposed in 2005 on its power to review the action of State entities.
Fiji Parliament House, C/Flickr/Jaredw_1980
Can Fiji afford this Constitution? This is a key question that is often ignored. Yet, it has significant implications at the implementation level, as seen in contexts like Kenya. Raising the cost question may look like a moot argument considering the abolition of potentially costly institutions like the Senate and the Office of the Vice President; and the reduction of parliamentary seats from 71 to 50. Such a conclusion is illusory for a number of reasons. Firstly, socio-economic rights—guaranteed by the Constitution—are a costly package that will require tremendous resources to realize. Even for comparatively wealthier countries, like South Africa which has similar broad guarantees for such rights, the cost factor has been a key obstacle to their full realization. Likewise, the new oversight institutions created by the Constitution, and the expanded role given the Army need to be bankrolled somehow. How will the government pay for this when just the mere process of establishing a basic living wage raises affordability concerns in policy making circles? One must also note that this transition is taking place in the context of fiscal restraints and an economy still on the way to recovery from the negative effects of the 2006 coup.
Last but not least is how people respond to the new legal order, in particular, their readiness to exercise their new constitutional rights without fear. Many Fijians lost the will for political engagement following the coup in 2006—and for good reasons: the military regime was heavy-handed and gave no room for dissent or political activism. The result was a disillusioned populace; and a subdued, uninterested and compliant civil service cadre more inclined to pander to superiors than provide critical, objective advice. The continuing presence of the Army in politics does not help the problem as it has created serious issues of morale as well as a climate of fearful reticence, a legacy of the recent and immediate past.
Much, however, appears to be changing. Impressive levels of voter registration, estimated presently at 550,000, are being reported ahead of next year’s elections. Calls for the ‘civilianization’ of the army and its return to the barracks continue to grow, and political parties are gearing up for the election. These developments signal both a growing public interest in re-engaging in politics as well as a caveat to those who have hitherto functioned unchecked, that the status quo is unsustainable.
Likewise, in some quixotic way, the presence of former military officers in the public service could facilitate the relationship between the former and the army in these initial stages. For instance, as incumbent Prime Minister JV Bainimarama leaves the military for the vagaries of civilian life as a full time politician, it is unlikely that his former military colleagues would want to jeopardize his legacy. As such, it is more likely—and there is this sense among some senior military officials—that the army takes a more circumspect public role. While no guarantees exist for this, many officials now preparing to take over the military leadership from Bainimarama and who also hold positions in the public service will have a vested interest—at least for the immediate future— in seeing this experiment work, even if only for the sake of honoring Bainimarama’s legacy.
Another factor that might allay concerns about the Fijian Army’s preponderant role in the new dispensation is the possibility of participating in UN peace keeping missions—for which they have established a reputation—or serving for limited periods in the Australian or New Zealand Defence Forces. There are a number of benefits here. For instance, exposure and experience in such contexts or institutions under civilian control, operating in a democratic context might contribute to reforming and democratizing the mindset of the army. As such missions and operations will typically be funded externally, such opportunities might also allow the government to cut back on, and reallocate military expenditure to other vital and much need sectors without political risk
Elections 2014 and beyond
The above notwithstanding, it is important not to lose sight of reality. The fact remains that the path ahead and the eventual outcome are uncertain. The institutional structure is now in place and the political leadership, together with Fijians, has a heavy responsibility to make it work. Focus has shifted to next year’s elections but there are still concerns about how this will play out. The first is whether the elections will be free and fair. Bainimarama has already stated his intention to leave the army and become a candidate in the elections but what if he loses? Giving the regime’s continuous sensitivity to criticism and dissent, can it be taken for granted that it will step aside after so many years in the corridors of power? These are critical questions as the wide ranging powers vested in the Prime Minister and the Attorney General seem to be predicated on the assumption that the regime will win the elections. A second issue is the resilience of Fijians. How ready are Fijians to enforce their will and stand up against reversals? Are they any guarantees of the army's neutrality in the event of a bad election day? These questions highlight the many unknowns that still characterize this transition and why one’s optimism must remain measured.
 Joni Madraiwiwi was Vice President of the Republic of Fiji (2005-2006), and is a traditional ruler and lawyer by profession.