Fiji's CCF give detailed analysis of new constitution | Pacific Beat

Fiji's CCF give detailed analysis of new constitution

Fiji's CCF give detailed analysis of new constitution

Updated 23 September 2013, 14:02 AEST

At the start of the month Fiji's newly drafted constitution was given assent into the law of the land, the first time the island country has had one since the previous constitution was scrapped by the military backed regime in 2009.

The new document has been praised, not only by those who drafted it who says it provides a blueprint for a democratic future, but others who say it has plenty in it worth complement it.

It's also been condemned by critics as being nothing more than a tool by which the current rulers can ensure their power is confirmed and extended.

The latest analysis is from the Citizens' Constitutional Forum.

Presenter: Campbell Cooney

Speaker: Reverend Akuila Yabaki, Citizens' Constitutional Forum Chairman

YABAKI: We had a team working on it and when they completed the work, they were here in Fiji and they were engaging with local stakeholders, lawyers and academics and party leaders, civil society organisations and before they, that was after the assenting by the President of the Constitution on August 8th. I think. So when we started work on that, we found out that was some additions and that prolonged the process a bit. But yeah, we have a Constitution. I think the political aspirations are there, there are opportunities that can lead the country to September, 2014, election, which I think we must say that is an exit strategy and all we need to do now is to ensure that the principles around free and fair elections and there are rooms for improvement the basis of free and fair elections for Fiji under this Constitution as claimed by government. They're not all there, because of the fact that the appointment of the Supervisor of E lections and the Constitutional Commission, the observing and all that, they're still under very much under the current government's hold. But there is hope. They offering under Section 161, they're offering opportunities for people to send in amendments to the Constitution, now that's up to the end of this year and so I'm encouraging people to see that as a window of opportunity and get hold of it and make some submissions for amendments.
COONEY: But the amendments though, given the fact that it's gone to Royal assent and once a Constitution is in power, short of scrapping it and, of course, that's already been done once in the last five years or so. They are known to be very hard to change and amend. You basically have a referendum. Are they saying that if you give us a good enough situation, while we still have the state of government and power that they have there that we will make those changes?
YABAKI: They seem to be saying, they calling it amendments, inconsistency or errors in any provision of this Constitution and I think instead of just crying fowl and all that, I think there's still an opportunity there to work on it and then if they're not honest with us, then we'll see find out. But where there's room there, let's make use of it. We want the free and fair elections, to have free and fair elections, that's very critical so that people can have a say, can produce a government that is not based on coup and the new government elected in 2014, we hope we will have produced a government that is able to do more amendment and we'll continue to do that under a so-called democratically elected government. So I think we should focus on the elections and the process, the changes that need to take place to ensure that. 
The international community has accepted that the Constitution is reasonably OK to lead us to the next elections, so. But I think the people from within Fiji have to critically examine the process and ensure that the elections are not as bad as might have been.
COONEY: All right. No doubt, you doubt you hope the analysis that the CCF has done will help people along that path. But looking and reading the summaries and that you've made public, there are some concerns and I'd like if you could just please tell us about some of the concerns you see in the document as it has been ascended.
YABAKI: Yes, one is that it's very hard to amend the Constitution. For instance, you have to have a super majority in Parliament and super majority of three quarter. The membership is 50 MPs, how do you three quarter of 50? And then once you get, that's not the end. Once you get the vote of Parliament, then the Constitution says you now go to the people for referendum of those who are registered to vote in as it were the last election and you need to get a super majority of three quarter. So it's impossible. And further than that, it's interesting that a coup that was supposed to end all coups, how do you ensure that it end all coups, when you have things such as immunity for the coup makers which are not amendable, cannot be amended at all.
COONEY: That's certainly the immunity issue has one that has dogged the whole process right through this whole Constitutional, going all the way back to the Constitutional Commission and Ghai draft and everything like that. But at the same time, the government, the regime has said those immunities are always going to be there. They are set in stone, call them what you will. They are not going to be there. They're always going to be there and they will not be removed?
YABAKI: And in otherwords they're saying it's a recipe for another coup. If you want to change things, you have to do another coup. So it's not a recipe to end all coups.
COONEY: OK. Now look, one thing there a bill of rights for people as I see is also a part of it and something else that you seem to have a few concerns about?
YABAKI: The bill or rights, yeah, I think we've developed a phrase called Claw back, it's comprehensive, I think it's mindboggling the extent of rights, and socio-economic rights available, but then there's a claw back clause, which says that parliament can change this, has the power to override the rights and change. There is another issue about land and that's rights as well.
COONEY: That's the rights that are in the iTaukei and Banaban people, is that what you mean?
YABAKI: The entrenched clauses on land in the Constitution are not there anymore. Say if you have a mining company that they don't have to consult landowners at all. If parliament thinks that such a change can be done, land can be utilised for mining and they think they can argue out on the basis of necessity, then they're free, there's a free way for them to go along that road and the customary owners of land do not have as much authority as they would have in the 1997 Constitution, trans clauses are not there.
COONEY: We're talking about the newly drafted Fiji Constitution, joining with me is Reverend Akuila Yabaki, from Fiji's Citizens Constitutional Forum, which has released a detailed analysis of that document.
Let's stick with land rights for a minute there Reverend. It was seen by many when that clause was seen in the new Constitution as a little bit of a gift back to the indigenous people of Fiji that perhaps make them feel a little bit better about some of the actions taken by the military-backed regime. It's not going as far as the original Qoliqoli bill which, of course, was seen as one of the reasons why the 2006 coup happened. But it is giving and as you mentioned there, it's not completely set in stone either, but it seen as giving a little bit back. Would you agree with that?
YABAKI: It does give, it does give something, but I think the customary owners of Taukei land are actually afforded no greater constitutional protection than any other person in Fiji who owns land. In back to Colonial days, the Native Land Trust Board and the Fijian Affairs Board were part of the entrenchment of Fijian ownership. Now that is when that is done without sufficient consultation and I think one basic point is that they claim they have 1,000 plus submissions, but unlike the Yash Ghai process, which produces over 7,000 submissions and we saw what the submissions were and 1,000 we haven't seen it. We haven't seen what they claim that came from the people, all done behind closed doors.
COONEY: Another problem for it. Well, just one thing there. I've mentioned I suppose raises concerns very quickly the little bit of time we've got left, just you're things that you do like it, particular positives that come out of this new Constitution in the little bit of time we've got left?
YABAKI: Yeah, I think, we must see a positive for political aspirations that there is opportunity document that leds us into the election 2014, that there's a lot more work to be done and as I've said Section 161 allows for people to make proposal for amendment, so the work is not over. We should take that as a space for further changes and make the most of it up to the December. And I think the ways things are, political parties beginning to formulate themselves into make releases, opportunities, and that's a bit of freedom around. I think that freedom should be used to the maximum, so that we can ensure that more voices are heard.

Contact the studio

Got something to say about what you're hearing on the radio right now?

Send your texts to +61 427 72 72 72

Add the hashtag #raonair to add your tweets to the conversation.

Email us your thoughts on an issue. Messages may be used on air.