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Fiji's Unfinished Constitutional Business (2009).

Deemant Himmat Lodhia

(Essay contributed towards the degree of LLM at the University of Auckland, New Zealand, November 2010).


Comments

This is a diligent and well researched account of modern constitutional history of Fiji and the successive coups d'etat which have afflicted it in recent times. The major strands of land control, racial competition, and constitutional instability are identified and related to the flow of events. Professor Alex Frame (LLB Auck LLM LLD Well) South Pacific Constitutions University of Auckland 2009 Contents: 1

Introduction

2

The Role of Chiefs in Fiji

3

The Role of Customs in Fiji

4

Fiji's Constitutional History - The Battle of Kamba (1855) - The Kingdom of Fiji (1855-1874) - The Colony of Fiji (1874-1970)

5

Post Independence Constitutional Developments - Ratu Mara (1970-1987) - Rabuka (1987-1999) - Chaudry (1999-2000) - Qarase (2001-2006) - Bainimarama (2006-2014)

6

Fiji's Constitutional Issues

7

The Way Forward

8

Sources & References

9

Appendix 1 : Fiji Census Data table (1881-1996)


1

Introduction

This research essay follows the development and evolution of Fiji's constitutional history with a view to showing the forces at work and assessing the suitability of the results for the Fijians as a society.

In the middle of last century, the population of Fiji was spread out across a number of communities ruled over by chiefs, some independent; others subject to a ruling chief but enjoying some independence and few were living in conditions similar to serfdom. 1 “There was no sovereign authority in Fiji strong enough to impose his will on all the people.

One result of this want of unity was war.” 2

Inter-tribal warfare 3 waged

sporadically until British Sovereignty was established in Fiji in 1874. 4

“There was no

judicial system in Fiji in the first half of last century: no courts for the administration of law. There were no written laws. Custom was very powerful; the will of the chief was law”. 5

Fiji has long-standing constitutional issues that need to be addressed to ensure a return to democratic principles. Several attempts have been made to fix the issues over the last few decades via written constitutional instruments, each prepared for the specific purposes at the time and the final such instrument, being the 1997 Fiji Constitution, which was abrogated by Fiji's President on 10th of April 2009 6 after the Court of Appeal made a ruling against the military led interim government 7 .

The result is that a new interim government has been appointed by the President and elections will be held in September 2014 at the earliest. This provides Fijian Citizens

1

2 3 4 5 6

7

Henderson GC, Fiji and the Fijians; 1835-1856, (1931) 244. Henderson has reviewed all the evidence held at the Methodist Missionary Society in London “written by men who lived in Fiji [between] five to sixteen years […] in different parts of the archipelago.” at 52. The best evidence is from missionaries Thomas Williams, Richard Burdsall Lyth, David Cargill and John Hunt. Henderson has accounted for religious predispositions in his review. Ibid. Usually caused by a chief's desire for aggrandizement, or to avenge real or supposed wrongs. Henderson, at supra n1at 245. Henderson, at supra n1 at 293. The Fiji Times, 10th April 2009 : 11.35am. The 1997 Constitution was first abrogated by Commander Bainimarama earlier on 29 May 2000 but it was held by the Court of Appeal of Fiji in Republic of Fiji v Prasad [2001] 2 LRC 743 that the 1997 Constitution remained in force as the supreme law of Fiji and Commander Bainimarama obeyed the court's decision. Qarase v Bainimarama, 9th April 2009, Judgement from Fiji Court d Appeal at Suva.


ample time to discuss and 'fix' deep-rooted and long-standing issues that have plagued their lives, effectively preventing them from progress. This paper attempts to identify some of these critical constitutional issues and discuss their relative history.

By following the development and evolution of Fiji's

constitutional history, with a view to showing the forces at work and assessing the suitability of the results for the Fijians as a society. The hope is that current issues, that are preventing Fiji from becoming an example to the rest of the Pacific, are identified and a way forward is established for further research and dialogue.

2

The Role of Chiefs in Fiji

Leadership of villages and groups of villages played a significant part in the communal life of Fijians long before Cakobau and thirteen chiefs ceded Fiji to Queen Victoria. The Chiefs were considered to be under divine inspiration. 8

In Fiji a Chief had been

accustomed to take anything he wanted without asking anybody's leave. 9

Such

traditional privilege was commonly practised and the 'chiefs deeply resented any interference'. Such was the power of a chief in Fiji […] that the people were afraid to act on their own initiative. If the King led the way his people would follow. 10

Some characteristics of chiefly status are described in the following excerpts; [N]oble birth had its obligations [and] the chief tried to play his part as a worthy descendant of the gods. They could be proud, revengeful, treacherous, lecherous, murderous; but they could also be courteous, dignified, splendidly hospitable and powerfully self-controlled. They did not desire great quantities of tribute meanly or selfishly; it was mainly that they might enjoy a reputation for bountifulness above other men: they gave away at feasts and entertainments nearly all that they acquired by oppression. 11 A native chief would feel deeply humiliated by any display of passion at the wrong moment, and unguarded outbursts were frequently followed by apologies and gifts of repentance. This power of self-repression combined with a belief in his divine quality imparted great dignity to the bearing of most of the ruling chiefs in Fiji. Some of them, large-boned, agile, well-proportioned and with that in their countenances which other men readily called master, were impressive creatures. 12

Twelve of the leading chiefs were recognised as Rokos by Sir Hercules Robinson, each in

8 9 10 11 12

Rika in Fijian. Henderson, at supra n1, at 82. Ibid, 101-102. Ibid, 89-90. Ibid, 87-88.


charge of a provincial area, and Sir Arthur Gordon confirmed this arrangement and developed the system of administering the Fijian population through their own chiefs.” 13 The traditional district and provincial councils were retained and a council of chiefs was inaugurated which brought together, for friendly consultation, the leaders of the various tribes who had, in the past, known little contact other than war..14

The Council of Chiefs [is] an advisory body but its recommendations carry great weight with the Fijian population.15 Under the current system, the Great Council of Chiefs select the President and Vice-President.

3

The Role of Customs in Fiji

The power of custom and habit in human life cannot be undermined in the life of a Fijian especially at in the middle of the 1800s. A heathen Fijian could cut up a human body for ovens without the slightest sign of embarrassment or self-conciousness, or any thought of the impropriety of his conduct. A chief could gorge his appetite for human flesh; but at the call of hospitality comport himself like a gentleman of birth and training; a son could strangle his mother to death, and show by the expression on his face that he regarded it as a proper and kindly act; old men and women could be buried alive in their graves, and those who stamped on the earth over their heads never dreamt that it was other than a proper thing to do. All this was the custom of the country! 16

Tribal self-preservation, that is, the welfare of the tribe is paramount, was the reason for some savage practices. 17 “War was their most engrossing form of sport [followed by] meke ...” 18 The missionaries of the time did not look favourably at meke and “they adopted their usual policy of suppression”. 19 The missionaries of the time failed to realise that meke infused “a spirit of goodwill into many of the more disagreeable duties of a Fijian's life.” 20

Had it not been for the local dread of British, American and French

men-of-war some of the early missionaries in Fiji would have ended their days in cannibal ovens, for the insolent, ruthless manner in which they ridiculed and assailed the

13 14 15 16 17 18 19 20

Sir Alan Burns, Fiji, (1963) 116. Ibid 116. Roth GK, 'Native Administration in Fiji During the Past 75 Years', 3. Supra n1, 65. Ibid 62. Ibid 70. Meke is a word used for a song or dance. Ibid 71. Ibid. Henderson goes on to argue the merits of the natives original beliefs in their gods and how missionaries assumed the 'role of iconoclasts' and swept away the Fijian religious system altogether at 74.


religion of the Fijians and mocked at their gods.”21 The executioners who pulled the rope that strangled the women were their own sons and relatives! And the expressions on their faces left no doubt that they regarded it not as a murderous act but as a pious duty. [T]he victims were generally glad to go, and the executioners happy in sending them to eternity. It was the custom of the country! 22

The custom of kerekere meant there was little private property as it allowed a relation to ask the owner for anything he wanted and a refusal was regarded as shameful. 23 The position of this custom was quite different during the 1800s, as everyone was more or less on the same level as one another with regards to possession of property. Today “kerekere is a serious handicap to the progress of the Fijian people, as it is a powerful disincentive to individual effort and thrift”. 24

The presentation of a tabua, a symbolic gift, normally a whale's tooth today, is a requirement for all important transactions. Lala is a legitimate service tenure that is well defined and recognised by both Chiefs and people. It is limited to three sources : assistance in hut building; aid in cultivation of the Chief's garden and when required for visitors or on other extraordinary occasions, supplies of food. 25

The Colonial

Government was undecided without full “acquaintance with the capacity and character of the natives … whether it will be desirable to attempt to improve and develop tribal organisation as an instrument of Government, or to discountenance and supersede it as impeding civilisation and not conducive to peace and order. For the present … no sudden change must be contemplated”.26

Henderson goes on to talk about the dishonest nature of Fijians and talks about thieving and how they saw little point in telling the truth because they were always agreeable with anyone they communicated with. This was because “the Fijian was essentially courteous by nature”. 27 “His courtesy … was an inborn characteristic : […] a desire to please.” 28

21 22 23 24 25 26

27 28

Supra n1,77-78. Ibid 60. Supra n 13, 37. Ibid. Observations by Sir Hercules Robinson to the Earl of Carnarvon in a letter dated October 20, 1874. Part VI, paragraph 17 of the Imperial Instructions from Earl Carnarvon to Sir AH Gordon concerning the settlement of cession problems, dated 4th March, 1875. Supra n1, 86. Ibid.


Fijian Custom was set down in writing under the Native Affairs Ordinance with a code for Fijian custom in the Native Regulations. 29 Land is “as much a part of a Fijian's entity as his name … and his security in it in perpetuity has been promised and confirmed repeatedly.” 30 This assurance was commanded to Sir Arthur Gordon; “their lands were theirs and should never be taken from them.” 31

4

Fiji's Constitutional History

The Battle of Kamba 1855 The Battle of Kamba is “one of the most important events in the history of Fiji”. 32 It was the decisive turning point where the forces of Christianity were arrayed against the forces of Heathenism 33 . It was there that the stage was set for a battle of the gods. In April 1855, under the direction of King George of Tonga 34 , who had arrived with 39 canoes and two thousand fighting men together with the Tui Viti and his forces; killed about one hundred and eighty men and took over two hundred prisoners. 35 “It was a decisive victory for Jehovah”. 36

A 'mighty change' took place and the old gods were immediately discredited and “[a]lmost immediately afterwards the people embraced Christianity in hundreds and thousands; islands went over to Methodism en bloc”. 37 “It was by the display and use of power far more than by religious teaching … that the great body of Fijians … were induced to forsake their old gods and turn their faces toward Jehovah”. 38 Fijians became converts not to the Christian religion but to the belief that the white man's God conferred greater benefits and could do more harm than their own gods; in other words, “it was the

29 30 31 32 33 34

35

36 37 38

Enacted by Sir Gordon in the early years of the Colony. Supra n 15, 4. Lord Stanmore in the House of Lords, 16th July, 1907. Supra n1, 49. Ibid. Ma'afu was the other principal Tongan figure in history who almost came to rule Fiji and was a competitor for power against Cakobau but they had made peace before Cession. Supra n1 at 269-270. The Tongan charge ignored Fijian battle-conventions and resulted in overwhelming victory. Cakobau's warriors were not so prominent in the fighting and Cakobau soon stopped the carnage and spared the lives of some of his greatest enemies. Ibid at 270. Ibid at 49. Ibid.


power by which they were influenced; not religious idealism”. 39 The superiority of the white man's goods, weapons of warfare, ships, clothing etcetera meant that his god was a great and powerful God who had asserted his superiority in the supreme test of battle. 40

[Fear] was deeply rooted in the Fijian mind; [and did not] pass away till the administration of British law had made life secure from one end of the archipelago to the other. 41

It was after this battle that the application of a system more in accordance with the regular judicial procedure of civilised nations was considered. The trial of a Mbau chief who had murdered his wife was “the first crude attempt to administer justice in Fiji 'white man's fashion'.” 42 The form was not strictly correct but it was an important step towards a regular system for administration of justice. 43

1850's-1875 The Kingdom of Fiji Victorious Cakobau was given the title Tui Viti 44 (King of Fiji); “but there was a large portion of Fiji over which he exercised no jurisdiction at all.” 45 Cakobau had ambitions to make his title a reality; but in 1858 found the task too great for him, and he commenced negotiations with Consul Mr Pritchard for handing over the sovereignty of the [Fiji Islands] to Great Britain. 46 Cakobau made this decision after reflecting on his 23 years of impression made on his mind by the character and work of the British missionaries. 47

The other crucial factor that led Cakobau to desire British Sovereign rule occurred on the 4th of July 1849 when the American Consul was celebrating his Independence Day on the island of Nukulau where his house caught fire and was burnt to the ground, and the natives took advantage of the confusion and looted property valued in the first instance at 39 40 41 42 43 44

45 46 47

Ibid, 261-262. Ibid at 263-265 referring to the Battle of Kamba Ibid at 81. Ibid at 294. Ibid at 295. A title given to him by General Miller, the American Consul-General for the Pacific Islands earlier then the Battle of Kamba. Ibid at 245. Ibid. Ibid, 300.


five thousand dollars . 48 “Subsequent to these events complaints were made against Cakabou, and numerous losses were ascribed to him […] by the settlers through their Consul, and Cakobau was saddled with the whole responsibility, although he had not [caused] the losses complained of.” 49

The United States Government inquired into the claims and awarded American Citizens a sum of 9,000 pounds in 1855, 50 and was increased to $45,000 because English missionaries attempted to obtain a fair investigation as is mentioned in the 1861 report of Colonel Smythe. 51 “Cakobau [was] unable to satisfy this demand [and] offered in 1858 to cede the sovereignty of the islands to Her Majesty Queen Victoria, on the condition that he should retain the rank and title of Tui Viti … and that in consideration of his ceding 200,000 acres of land, Her Majesty's Government should pay the American claims for him.” 52 This offer was declined as the Imperial authorities were facing difficulties in New Zealand at the time and could not afford any further entanglements as it will 'incur a large and immediate expenditure, with the possibility [of] native wars, and possible disputes with other civilised countries. 53 It would … appear uncertain whether the welfare of the natives would not be better consulted by leaving their civilisation to be effected by causes which are already in operation. 54

Various attempts were made by European residents to establish a regular form of Government after 1858, however, mainly due to mutual suspicion and hostility of leading chiefs, every such attempt failed. 55 In August, 1871, an attempt by Cakobau and several European settlers was made to form a Government for the whole group at a formal convention, and after much deliberation, agreed to a constitution for the “Kingdom of Fiji”. 56 This constitution was 'cumbrous, expensive, and placed all political power in the hands of white settlers, leaving the natives […] with the merest shadow of influence. 57

48 49 50 51

52 53

54 55 56 57

Wright AA, The Colony of Fiji 1874-1931, (1931) at 7. Ibid, 8. Ibid; an award decided by Commander Boutwell of the United States Navy in 1855. Henderson GC, Fijian Documents Political and Constitutional 1858-1875 (1938) 15. Colonel Smythe was sent by the Queen to report on Cakobau's first offer of Cession from 1858. Ibid. Ibid, 26: referring to a letter by Sir Fredric Rogers stating the reasons for declining the offer of cession dated September 1861. Ibid. Supra n 48, 8. The Constitution Act of the Kingdom of Fiji 18th August 1871. Supra n 48, 9.


Constant disagreements erupted during each session of the Assembly but the most serious difference was “the question of electoral franchise 58 , the settlers arguing that the franchise was confined to Europeans solely, and Ministers disputing the point”. 59 The Assembly was consequently dissolved in 1873 and a new Constitution was then framed conferring a large share of power on the natives but was never enforced despite being assented to by the Tui Viti. Lord Kimberley also made it clear that Her Majesty's Government were not formally recognising the constitution 60 and reserved the rights of British subjects within Fiji. 61

Chief-Secretary Thurston was of the opinion that the New Constitution was a; political coign upon which any grievance is hung as an excuse for violence – as a political fulcrum to overturn the in-dependency of the King and people of Fiji, and so induce them to accept annexation … as the only escape from chaos; and also the fact that the constitution [is] not the cause of armed risings … and [an] attempt to grasp all authority and power in Fiji. 62

A meeting was called at the end of February 1874 to decide the question of ceding the country to Great Britain where the King and Chiefs decided against the cession and immediately afterwards another attempt was made to form a Ministry but the Commissioners proclaimed the bankruptcy of the King's Government and “completely paralysed any further attempts at self-government [and] the King's advisers strongly recommended a reconsideration of the question of annexation”. 63 On the 21st March 1874, Cakobau reassembled the Chiefs and made a renewed formal offer of cession which was not accepted in its original form by the Imperial Government because of the conditions it contained. 64 An ad interim government was appointed from March 23, 1874 until October 10, 1874 to wait for the reply by Her Majesty on the recent offer of cession.

Lord Kimberley instructed Commodore Goodenough and Mr Consul Layard to inquire and report on the question of annexation to Great Britain and they reported back in the

58 59 60 61 62 63 64

This remains an issue unanswered satisfactorily till this day. Supra n 48. Lord Kimberly's circular dispatch dated November 3, 1871 as presented in supra n 51. Ibid, Lord Kimberly's circular dispatch dated August 14, 1872. Ibid, Chief Secretary Thurston to Consul Layard in a letter dated January 16th, 1874. Supra n 48, 10. Ibid.


positive suggesting “that Fiji would certainly become a prosperous settlement”. 65 In the House of Lords, Earl Carnarvon, the Secretary of State for the Colonies instructed Sir Hercules Robinson, Governor of New South Wales, to proceed to Fiji and inform the King and Chiefs that if they wished for annexation, it must be unconditional. 66

A few days before the Deed was signed, the Fijian Chiefs met Sir Hercules Robinson to seek confirmation as to the meaning of 'giving their country' to Her Majesty.

Sir

Robinson explained that while the cession must be full and complete, they would be giving as chiefs, in a chiefly manner, and must “trust to the Queen's justice and generosity as their Sovereign and Highest Chief to return to them all or whatever past of their gift she may think right [and] to govern righteously and in accordance with native usages and customs.” 67 Based on this note the Cession was then completed. On the 10th of October, 1874, a formal and unconditional cession was made to Her Majesty Queen Victoria of the sovereignty of the islands; [T]he Fijian Chief Thakombau, styled Tui Viti and Vunivalu, 68 and other high Chiefs of [Fiji], are desirous of securing the promotion of civilisation and Christianity, and of increasing trade and industry within [Fiji] … and that order and good government should be established [and the] Tui Viti and other high Chiefs have conjointly and severally requested Her Majesty, the Queen of Great Britain … to undertake the government of [Fiji]. [T]he said Tui Viti and [the other] high Chiefs … for themselves and their respective tribes, have agreed to cede the possession of and the Dominion and sovereignty over the whole of [Fiji], and over the inhabitants thereof, and have requested Her said Majesty to accept such cession; which cession the said Tui Viti and other high Chiefs, relying upon the justice and generosity of Her said Majesty, have determined to tender unconditionally the execution of these presents, and by the personal surrender of the said territory to Her said Majesty... 69

Upon the completion of formalities, a temporary form of Government was appointed by Sir Hercules Robinson but he noted that - “there was no person in Fiji who [had] any experience of a Crown Colony and much would depend upon the manner in which affairs were conducted upon the first establishment of British rule” 70 . [B]y the Proclamation of the 13th October, 1874, the Laws of New South Wales, with certain exceptions, are declared to be in force in the Colony, and … it is intended that

65 66 67

68 69

70

Supra n 51, Report of Commodore Goodenough and Mr Consul Layard on Fiji, dated April 13, 1874 Supra n 48, 10-11. Parliamentary Paper in continuation of HL 120 and Cd 3763. Colonial Office, October, 1908, as referred to in Roth Gk supra n 15. A title for the leader of the Armed Forces literally meaning 'the root of war' in the Fijian language. Supra n 51, Instrument of Cession of the Islands of Fiji, 130. The document was signed at Levuka on 10th October 1874. Supra n 51, Letter from Sir Hercules Robinson to the Earl of Carnarvon, Levuka, October 20, 1874.


the Laws of England should be in force … as applied to the particular circumstances of the place. 71

A special Ordinance was suggested by Lord Carnarvon; [F]or the unsworn testimony of natives in [all] cases, and the same Law should empower the Courts … to admit evidence of native customs not repugnant to justice and morality, especially in regard to Marriages, Wills, the Title to Land, the transfer of property inter vivos and its devolution on intestacy, and to deal with such cases in accordance with natural equity and good conscience. 72

Sir Arthur Hamilton Gordon was appointed by Her Majesty as the first Governor of the new Colony and he formally assumed administration of the Government on the 1st September, 1875. 73 “The native race settled down in a truly remarkable degree to the new order of Government”. 74

The Colony of Fiji (1874-1970) The colony was established by Letters Patent 75 on 2nd January 1875, which referred to the Cession; Whereas the Chiefs and people of … Fiji Islands, have ceded to us the said islands,and Sovereignty thereof, which we have been graciously pleased to accept: And whereas it is expedient to make provision for the better government of the said islands... 76

The Charter formed a 'typical Crown Colony' constitution, with a law-making body which, under the supervision of the Secretary of State for the Colonies, was completely controlled by the Governor as appointed by the Queen or by her instructions. Sir Arthur Gordon formerly assumed administration of the Colony on the 1st of September 1875. 77 The Charter created the posts of Governor and a Legislative Council consisting of the Governor and such other persons as might be appointed by the Queen or by her instructions. 78

71

72

73 74 75

76 77 78

Ibid at paragraph 18 Letter from Earl Carnarvon to Sir AH Gordon Concerning the Administration of Justice, 22 March, 1875. Ibid at paragraph 15 Letter from Earl Carnarvon to Sir AH Gordon Concerning the Administration of Justice, 22 March, 1875. Supra n 48, 12. Ibid. Also referred as the Charter for Erecting the Fiji Islands into a separate Colony as presented in Supra n 51. Ibid. Supra n 13, 126. Ibid.


Fiji was divided into Provinces and each was again subdivided into Tikina, for 'administrative convenience'.

Provincial Chiefs, Roko, were appointed alongside a

Native Magistrate and a Mbuli was appointed over each Tikina and a Village Headman was put in charge of each village. 79 A chain of command and responsibility was thus established based on native Fijian forms of government, minimising departure from “official customs, traditions and boundaries.” 80

Sir Arthur Gordon considered it important to “seize … the spirit in which native institutions have been framed, and endeavour … to develop [the] capacities of the people for the management of their own affairs, without exciting their suspicion or destroying their self-respect.” 81

A system was established where the Council of Chiefs,

representative of all Provinces and regarded as the mouthpiece of Fijian public opinion, made recommendations that were submitted to the Native Regulation Board enactment.

for

In this way, the natives administered themselves, under a code they

understood, a code they had prepared and was deemed workable by natives. This approach was considered “much better [than] regulations imposed by external force, … which they might neither comprehend nor appreciate.” 82

Prior to 1904, the Legislative Council consisted of six official and four unofficial members who were nominated by the Governor with the approval of the Secretary of State for the Colonies. 83 It was altered to allow for two native Fijian members 84 but certain provisions were unworkable and amendments 85 were made with a consolidated Constitution by 1916. The first nominated Indian member was appointed in 1916 86 ; this position was made elective from 1929 87 after “it was finally decided, that the material and political progress of [Indians] justified the grant of a moderate measure of direct 79 80

81

82 83 84 85 86

87

Supra n 15, 2. A selection of documents and extracts from documents to be used in a course of lectures on “The Evolution of Government in Fiji” by GC Henderson, MA (Oxon). Sydney, 1935. “Native Taxation in Fiji” a paper read by Sir Gordon before the Royal Colonial Institute, London, on 18 March, 1879. 'Native Councils in Fiji, 1875-80', by Sir Arthur Gordon, Contemporary Review, May 1883. Supra n 48, 13. Letters Patent dated 21st March, 1904 provides for 10 official members, six elected and 2 natives. Letters Patent of the 31st January 1914 and 20th July 1916. Mr Badri Maharaj was the first Indian member of the Legislative Council serving for two periods between 1916 to 1923 and 1926 to 1929 as a nominated member; he founded the Wairuku Indian School, near Rakiraki, in 1898, making it the first Fiji Indian school to be established in Fiji. One of the famous Fijian identities to attend the school was Ratu Sir Lala Sukuna, regarded by many as the father of modern Fiji. 9th February 1929 in force from 1st May 1929.


political representation to the Indians in the Legislative Council”. 88 The Indians are the result of the Indentured Labour Scheme which was suggested as early as September 1875, when Sir Arthur Gordon pointed out to the settlers the need to address the labour problem as the supply of 'Polynesian' labour was decreasing and the cost increasing. 89 This was partly caused by changes in taxation policy because prior to Colonisation, tax was paid by services, similar to slavery, but it was changed to allow payment in kind by “agriculture produce … and other articles of domestic use and convenience … to meet the demands of the Government.” 90 [Sir Gordon] suggested that it would be wise to supplement this labour by that of Indian coolies. He had previously been Governor of Mauritius, where Indian indentured labour had been introduced [since] 1834. [T]he Fijians, depleted in numbers by the measles epidemic, were unable or unwilling to perform regular work, [and Sir Gordon] revived the proposal in 1877. 91

The first indentured labourers arrived from India in May 1879 and the indenture system lasted until 1916. Approximately 62,000 Indians were brought to Fiji under indenture. 92 The introduction of Indian members into the Legislative Council, in 1929, brought friction as a motion to place Indian electors on a common roll with other British subjects was proposed but not passed, and the three Indian members resigned but were re-elected in 1932. 93

This was the start of a crucial issue that remains unresolved till today.

Members of Parliament can be elected in two possible ways to fill each community's seats; firstly by voting on a communal roll so that only the voters in each community elect the members belonging to that community and the other is by voting on a national roll, which allows the members belonging to each community to be elected by all voters. 94 The theory behind such “cross-voting” is that all the communities are represented by the communal members they have helped to elect, even though some of them will be of a different ethnicity to their own. 95

The Indians pressed for equal and universal franchise from the start. Mr AD Patel was a chief “advocate of the common roll [who] argued with foresight not recognised at the 88 89 90 91 92 93 94

95

Supra n 48, 14. Supra n 15, 110. Paragraph 11, Sir Robinson to the Earl of Carnarvon, October 16, 1874, as in supra n 51. Supra n 15, 110. A third of the native population is estimated to have perished by measles. Ibid, 111. Ibid, 127. Reeves P, Vakatora TR, Lal BV, Towards a united Future; report of the Fiji Constitutional review Commission (1996), Parliamentary Paper no. 34 of 1996, at paragraph 2.13. Ibid.


time that communal representation would make success in politics depend on responding to communal interests and prejudices, and so make compromises difficult.” 96

Demographics of Fijian society at the time reveals large shifts in composition with Indian dominance spreading and overtaking the Fijian population in 1946. 97

A European

member of the Legislative Council moved a motion at the time; [I]n view of the great increase in the non-Fijian inhabitants and consequential political development – to emphasise the terms of the Deed of Cession to assure that the interests of the Fijian race are safeguarded and a guarantee be given that Fiji is to be preserved and kept as a Fijian country for all time. 98

This motion was amended to read “and shall consider that document as a Charter of the Fijian people.” 99

The key figure to lay the groundwork for self-government by

development of modern Fijian institutions is Ratu Sir Lala Sukuna, whose vision set the course for Fiji.

As early as 1933, Ratu Sukuna had recognized land as a potential future problem, and had told the Great Council of Chiefs, "We regard the Indian desire for more permanent tenancy as a natural and legitimate consequence of an agricultural community settling in any country. But how was this desire to be reconciled with the need to protect the interests of present and future Fijian landowners?" The Native Land Trust Board (NLTB) scheme is the solution. Prior to 1940, land was owned by individual mataqali or clan, and they individually negotiated lease terms with Indo-Fijian farmers. The NLTB is the central body that holds Fijian land in trust and is leased on uniform terms throughout Fiji. In 1944 he re-established the Fijian Affairs Board, hence re-established 'in-direct rule 100 and in 1956 helped form Fiji's first political party, the Fijian Association under Ratu Edward Cakobau. Institutions designed by Sir Ratu Sukuna are unlikely to be affected by the latest political turmoil in Fiji as the 'Peoples Charter' specifically mentions 101 that the status of the Register of Native Landowners, the Native Lands Commission and the Native Lands Trust Board apply specifically to the affairs of the i-Taukei 102 and will not be affected. 96 97

98 99 100 101 102

Supra n 94, paragraph 2.15 Refer http://www.statsfiji.gov.fj/ for statistics on Fiji. A table with the summary of statistics from 18811986 is attached in Appendix 1. Fiji, Legislative Council Debates, 16 July 1946, 163. Fiji, Legislative Council Debates, 16 July 1946, 214. Fiji, Legislative Council Debates, 24 Feb. 1944, 35. People's Charter ; Pillar 2 Indigenous Fijians have been given the title 'i-Taukei' so that the common name 'Fijian' can be used for all Fiji citizens.


In a supporting speech to the Fijian Affairs Bill, Ratu Sukuna highlights the need to consider a constitution and laws best suited for a 'transitional stage' with a purpose “to train Chiefs and people in orderly, sound and progressive local government to fit them for the eventual give and take of democratic institutions.� 103

The Legislative Council was expanded to 32 members in 1953, 15 of them elected and divided equally among the three major ethnic groups; indigenous Fijians, Indo-Fijians, and Europeans. It brought native Fijians and Indo-Fijians into the official political structure for the first time, and marks the beginning of a modern political culture in Fiji. Fear of Indo-Fijian domination made many Fijian chiefs resist British moves towards autonomy, but the United Kingdom had decided to divest itself of its colonial empire, and pressed ahead with reforms. 104 The Fijian people as a whole were enfranchised for the first time in 1963, when the legislature was made a wholly elective body, except for 2 members out of 36 nominated by the Great Council of Chiefs. 1964 saw the introduction of the Member system whereby portfolios were given to certain elected members of the Legislative Council and leaders were being groomed for Ministerial responsibilities.

Constitutional reforms in the 1960s were shadowed by a series of industrial troubles, for example, the December 1959 strikes and anti-European riots in Suva. 105

A constitutional conference was held in London in July 1965, to discuss constitutional changes to introduce independent government. 106 Indo-Fijians, led by AD Patel, under the National Federation Party banner, demanded the immediate introduction of full selfgovernment, with a fully elected legislature, to be elected by universal suffrage on a common voters' roll. 107 These demands were vigorously rejected by the ethnic Fijian delegation, under the Alliance Party, who still feared loss of control over natively owned land and resources should an Indo-Fijian dominated government come to power. But the British were determined to grant Fiji Independence. Realizing that they had no choice, 103 104

105

106 107

Fiji, Legislative Council Debates, 24 Feb. 1944, 36. In December 1960 the General Assembly of the United Nations adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples, Resolution 1514 (XV). Fiji, Legislative Council, Report of the Commission of Enquiry into the December Disturbances, CP 10/1960, and for a detailed analysis see FJ West, 'Background to the Fijian Riots', Australian Quarterly, 32 (1960), 46-53. Lawson S, The Failure of democratic Politics in Fiji, (1991) 171. Ibid


Fiji's chiefs decided to negotiate for the best deal they could get which led to a series of compromises 108 and the establishment of a cabinet system of government in 1967, with Ratu Kamisese Mara as the first Chief Minister. Ongoing negotiations between Mara and Sidiq Koya, who had taken over the leadership of the mainly Indo-Fijian National Federation Party on Patel's death in 1969 led to a second constitutional conference in London, in April and May 1970 109 , at which Fiji's Legislative Council agreed on a compromise electoral formula and a timetable for independence as a fully sovereign and independent nation with the Commonwealth. The three most important issues raised, for present purposes were: the structure of the electoral system, the composition of the parliament and the entrenchment of indigenous rights in the constitution. 110

The Alliance rejected the call for common rolls but conceded that it was a desirable long term objective. 111 At independence in 1970, Fiji retained the two systems of communal representation as a compromise between communal roll and common roll. 112 Elections on common roll basis means seats are not reserved for any particular ethnicity but native Fijians wanted assured representation to protect their interests against the larger Indian population 113 . It was mutually agreed that the question of common roll would be decided by a Royal Commission after independence after which new legislation will be drafted 114 but after the first set of elections in 1972, the Alliance refused to support the Royal Commission's recommendations. 115

The Legislative Council would be replaced with a bicameral Parliament, with a Senate dominated by Fijian chiefs and a popularly elected House of Representatives. In the 52member House, Native Fijians and Indo-Fijians would each be allocated 22 seats, of which 12 would represent Communal constituencies comprising voters registered on strictly ethnic roles, and another 10 representing National constituencies to which members were allocated by ethnicity but elected by universal suffrage. A further 8 seats were reserved for "General electors" - Europeans, Chinese, Banaban Islanders, and other minorities; 3 of these were "communal" and 5 "national." 108 109 110 111 112 113 114 115

For example see Fiji, Legislative Council Debates, 17 Dece. 1965, 707-8. Fiji, Legislative Council, Report of the Fiji Constitutional Conference 1970, CP 5/1970, 1. Lawson at p.185. Fiji, Legislative Council, Report of the Fiji Constitutional Conference 1970, CP 5/1970, 1. Supra n 94, at paragraph 2.14 Ibid, 2.17 Fiji, Legislative Council, Report of the Fiji Constitutional Conference 1970, CP 5/1970, 1. Fiji, Parliament, Report of the Royal Commission, PP 24/1975.


Section 68(1) of the 1970 Constitution had the effect of entrenching indigenous rights by requiring a special majority to amend any laws relating to Fijian customs and customary rights. Section 67(3) entrenched the provisions of the constitution itself by requiring a two-third majority and section 67(2) required a three-quarter majority to alter the sections of the Constitution dealing with indigenous rights. The 1970 Constitution was not translated into the Fijian language and the Alliance and sub-subsequently Rabuka played on the fear of loss of Fijian land and other rights which had been securely entrenched, to justify their purposes. 116 Fiji became independent on October 10, 1970 but the problems remained. 117

5

Post Independence Constitutional Developments

Politicians capitalised on and exploited communal anxieties, 118 which was unavoidable given the communal system itself and the Fijian politicians insisted that a common roll system will result in Fiji-Indian political hegemony and the loss of Fijian lands and other rights. 119

Teething Problems (1970-1987)

Fiji's parliamentary election of March 1977 precipitated a constitutional crisis, which was the first major challenge to the country's democratic institutions since independence. A split in the indigenous vote in 1977, resulted in a narrow win for the Indo-Fijiandominated National Federation Party (NFP). Sidiq Koya, the NFP leader, was expected to become Prime Minister.

Instead, the Governor-General, Ratu Sir George Cakobau,

called on Mara to form a caretaker government, pending new elections scheduled for September. The reason for appointing Mara was that there was a leadership struggle immediately following the election which seriously fractured the NFP and it failed to name a Cabinet for three days, and a crisis began to develop. The Governor-General,

116

Supra n 106, 190.

wikipedia: http://en.wikipedia.org/wiki/Colony_of_Fiji : this resource was used to 'map' the time line. 117

118

119

Ali, Plantation to Politics : Studies on Fiji Indian, Suva, University of the South Pacific and Fiji Times and Herald Ltd, 1980, at p. 156. Norton, Race and Politics in Fiji, (St Lucia, University of Queensland Press, 1977) at p.105.


Ratu Sir George Cakobau, under section 73(2) of the 1970 Constitution had the power to appoint as Prime Minister, a person who 'appears to him best able to command the support of the majority of the members of the House'. The NFP leader had been the victim of a plot to prevent an Indian holding the post of Prime Minister. 120

Fresh

elections were scheduled for September 1977 but by now the NFP had split into two groups thus splitting the Fiji-Indian electorate to the advantage of the Alliance which lead a landslide victory in the September elections and commanded 36 out of the 52 seats and later won the 1982 elections but with a lesser margin. Until the emergence of the Fiji Labour Party in 1985, politicized colonial racial politics of 'divide and rule' maintained predominance. 121

A growing perception that Alliance was arrogant led to the creation of a new opposition force developed from the multi-racial Fiji Trade Union Congress, and the Labour Party emerged with Dr Timoci Bavadra as President. The NFP as an 'Indian party' had not been able to challenge the Alliance on important Fijian issues which the Labour Party now could: Ironically, the people who have suffered most under the Alliance Government are the very people whose interests this government purports to champion, the native Fijians. By restricting the bulk of the Fijians to their communal lifestyle in the face of a rapidly advancing cash economy, the average Fijian has become more and more economically backward … This is particularly invidious when the leaders themselves have amassed huge personal wealth. 122

Dr Bavadra was critical of the established Fijian institutions, for example the Native Land Trust Board, and wanted “all Fijians and not just a few to benefit more”. 123 Many statements were made by the Alliance, prior to the 1987 election, to discredit the Labour Party and bolster the importance and legitimacy of chiefs as well as instil fear and uncertainty amongst Fijians about their own security and interests. 124 Bavadra urged Fijians to 'recognise the difference between their traditional obligations and their constitutional democratic rights'. 125 In April 1987, the Labour Party and its coalition partners were elected to Parliament. Dr Bavadra's government was not dominated by Fiji Indians, rather the cabinet was carefully balanced and all important Fijian portfolios 120 121

122 123 124 125

Supra n 106, 216. Simione Durutalo, 'The Fiji Trade Union Movement at the Crossroads – Social and Political Options for the Labour Movement', Journal of Pacific Studies, 11 (1985), 204. Dr Bavadra, Fiji Sun, 17 Nov, 1986, 4. Bavadra, 'Text of Address', 74. Supra n 106, 243. Fiji Times, 21 June 1986, 12.


remained with Fijian members. 126 Even if the Fiji-Indians had dominated the coalation, the special rights and interests of indigenous Fijians were protected by the entrenched provisions of the 1970 Constitution and Dr Bavadra had been clear that he wished only to enhance the rights of the common Fijian vis-a-vis the chiefs.

The extremist Taukei Movement, lead by 'a diverse group of Fijian individuals and institutions, allied to chiefly interests and linked in various ways to the defeated Alliance party ...and ... committed to its overthrow by any means possible'. 127

The Taukei

movement carried out demonstrations against the new government on the pretext of protecting Fijian rights but lost momentum as the Bavadra government became established. Then on 14 May 1987, Rabuka overthrew the Bavadra government and took control.

The 1987 Coup

The coup led the Governor General to dissolve Parliament and declare all Ministers' offices vacant. Dr Bavadra brought proceedings seeking constitutional relief against the actions of the Governor General but these were struck out by the Supreme Court of Fiji. 128 Rabuka stated he wished to prevent 'further bloodshed and violence', 129 and that the potential danger of civil violence posed by the Taukeis' [meant] he would 'have to act'. 130 The other justification used was a 'real threat from Russian and Libyan influence reaching into Fiji under a Coalition Government'. 131 These and similar allegations have never been substantiated and other means to convince the domestic audience were employed. Because the coups were allegedly carried out in the interests of indigenous Fijians, there was a concerted campaign in the Fijian language, through governmentcontrolled radio station, to justify the actions [of those] involved in the coups as well as the system of values associated with them. These actions and values were rationalised by appealing to a fundamentalist view of Christianity and to traditional Fijian values. 132

126 127 128 129 130 131 132

Fiji Times, 15 April 1987, 5. Lal, Power and Prejudice, 72. Bavadra v Attorney-General [1987] SPLR 95; [1988] LRC 13. Announcement on Radio Fiji at 11 am, 14 May 1987, quoted in Lal, Power and Prejudice, 8. Eddie Dean and Stan Ritova (eds.), Rabuka: No Other Way (Moorebank, 1988), 46 and 48. Ibid, at p.37. Tupeni Baba, 'Education and the Coup in Fiji : the Aftermath', in Satendra Prasad (ed.), Coup and Crisis: Fiji – A Year Later (North Carlton, 1988), 16.


The Governor-General announced plans for a caretaker government made up of members from the collation and the Alliance as well as a non-partisan Council of National Reconciliation 133 but as the final agreement was reached, Rabuka led the second coup on 26 September 1987 on the basis that the objectives of the first coup were compromised. Rabuka purported to repeal the 1970 Constitution and declared Fiji a Republic.

Shortly afterwards Ratu Sir Penaia Ganilau was appointed as President and Ratu Sir Kamisese Mara as the Prime Minister in the interim government of the new Republic. 134 In July 1987, Ganilau had commented that 'other races living in Fiji [should] accept the reality that indigenous Fijians should be given a privileged position and a majority that would guarantee that the Fijians were always in control of the government.' 135 It was the view of some that the justification for the 1987 coup is ideological and rests on selfserving and false claims, disguising the real motives, being the consolidation of eastern chiefly authority, hidden under the banner of Fijian nationalism. 136

A new constitution was drafted and imposed in 1990, with the support of the Great Council of Chiefs, and the majority of seats were reserved for indigenous Fijians, as was the position of Prime Minister. Section 161 of the 1990 Constitution provided for a review of that Constitution within seven years and the Fiji Constitutional Review Commission was established in 1995, chaired by Sir Paul Reeves.

The Reeves

Commission held extensive hearings, received submissions and reported with 'The Fiji Islands: Towards a United Future', tabled in Parliament in September 1996. Rabuka described it as 'an expression of confidence and hope in our collective future' and as a multi-racial 'model for other countries and people to follow'. 137

The 1997 Constitution of Fiji was meant to: meet the present and future needs of the people of Fiji to promote racial harmony, national unity and the economic and social advancement of all communities. 138

The Constitution Amendment Act 1997 brought about the Fiji 1997 Constitution, which

133 134 135 136

137 138

Fiji Sun, 1 Sept, 1987, 1. Supra n 106, 263. Pacific Islands Monthly, 58 (1987), 15. See for example Lawson S; Working Paper no.93, “Constitutional Change in Contemporary Fiji : the Apparatus of Ideological Justification�, National Library of Australia, Canberra, October 1990. House of Representatives, Hansard, 23 June 1997, 4442, 4444. Mission statement at p.2 FCRC Report.


went into force from 27 July 1998. By this time the demographics of Fiji was shifting and native Fijians finally overtook the Indian population 139 as the Indians migrated for better lives elsewhere, free from race based politics. The first election under the new Constitution was in May 1999.

The electoral system prescribed is based on the

Australian model of preferential voting 140 where 46 of the 71 seats are communal seats allocated to different ethnic groups according to their representation in the general population, with the remaining 25 seats being open. 141

Mahendra Chaudry led the

Peoples Coalition with 54 out of 71 seats and became Fiji's first Indo-Fijian Prime Minister in 1999.

The 2000 Coup

On 19 May 2000, George Speight and a group of armed men seized parliament and took the Prime Minister and many members of Parliament hostage. Speight purported to abrogate the 1997 Constitution by issuing the Fiji Constitution Revocation Decree 2000 and in response, Fiji's President, Ratu Mara, declared a state of emergency on May 27, prorogued Parliament for six months and assumed executive authority as the elected government was unable to function while being held hostages. The Police Commissioner advised the President on the 29th May that the Fiji Police Force could no longer guarantee the security of the nation and a meeting was held between the President and the Commander of the Fiji Military Forces, Commodore Bainimarama. After the meeting, the Commodore issued Interim Military Government Decree No 1, the Fiji Constitution Revocation Decree 2000, which stated: 'Notwithstanding the provision of any law existing ‌ the Fiji Constitution Amendment Act 1997 is with effect from 29th Day of May 2000, wholly removed.' Interim Military Government Decree No 3 followed shortly and established an Interim Military Government, declaring executive authority vested in the Commander as the head of the Military Government. Several other decrees were issued to protect the 'values that underlie a democratic society based on freedom and equality 142 but made this subject to the protection of Fijian interests. 143

139 140 141 142 143

See appendix 1, census data. Section 54, 1997 Constitution. Section 51, 1997 Constitution. Section 24(4) IMG Decree No 7, Fundamental Rights and Freedoms Decree 2000. Section 24(6) IMG Decree No 7, Fundamental Rights and Freedoms Decree 2000.


The Fijian Military established an Interim Civilian Government 144 and gave it the power to make laws for the peace, order and good government of Fiji by means of decrees. 145 Qarase joined the Interim Military Government as a financial adviser on June 9, 2000 until his appointment as Prime Minister on July 4th with the support of the Great Council of Chiefs. On 13 July, Qarase presented the Great Council of Chiefs with a document titled 'Blueprint for the Protection of Fijian and Rotuman Rights and Interest, and the Advancement of their Development, which asserts the paramountcy principles and entrenchment of leadership positions in the hands of native Fijians. It promised multimillion dollar programs for the exclusive benefit of ethnic Fijians and it also reserves all the nations' land and water resources to ethnic Fijians. In October, Qarase established a constitutional review commission to draft a new constitution based on such principles. Speight released the final hostages on 14th July under the Muanikau Accord made between the Commander and Speight, which granted immunity to Speight from prosecution, but he was arrested and charged for various offences, and the Accord nullified on the basis of duress.

Mr Chandrika Prasad, 'an ordinary citizen seeking to return to normality' sought a declaration in the High Court of Fiji that the 1997 Constitution remains in force and that the elected government of Fiji had not been lawfully dismissed.146 Justice Gates held the actions of the President and the Commander lawful, based on the doctrine of necessity, 147 insofar as it was designed to resolve the hostage crisis and to uphold the 1997 Constitution. Justice Gates found; Commodore Bainimarama is clearly no usurper. Having acted as he thought best in a temporary but dire hostage crisis, he handed over power to a civilian caretaker administration. Necessity would permit him to suspend the Constitution ‌ to free the hostages and to restore law and order. That concluded his role. 148

However, the abrogation of the Constitution was held to be unlawful as it had no valid basis and it was not demanded by necessity. Accordingly, Justice Gates ordered the elected Government to resume office but the Interim Civilian Government decided to appeal to the Court of Appeal of Fiji and a decision was handed down on the 1st of March

144 145 146 147

148

IMG Decree No 10, Interim Civilian Government (Establishment) Decree 2000. IMG Decree No 19, Interim Civilian Government (Transfer of Executive Authority) Decree 2000. Prasad v Republic of Fiji [2001] NZAR 21; [2001] 1 LRC 665; other declarations were also sought. For a full discussion of this case see Williams G, 'The Case that Stopped a Coup? The Rule of Law in Fiji', transcript of lecture delivered at the Victoria university law school in Wellington on 27 November 2003. Prasad v Republic of Fiji [2001] NZAR 21; [2001] 1 LRC 665;


2001 dismissing the appeal and upholding the 1997 Constitution as the supreme law of Fiji. The Court concluded from the evidence that most people of Fiji believed the 1997 Constitution 'embodies and protects the ideals and aspirations of the different ethnic groups and that there was not proper justification for its abrogation'.

Qarase's government resigned after the court's decision and announced a return to democratic rule under the 1997 Constitution, but Parliament was not recalled, instead it was dissolved by the President 149 and a general election was called while reappointing Qarase's Interim Civilian Government as a caretaker administrator, pursuant to section 109(2) and 194(2)(b) of the Constitution. The interim government was challenged by the Citizen's Constitutional Forum and on 11 July 2001, Justice Scott held that the President had lawfully dismissed Prime Minister Chaudry and lawfully appointed Prime Minister Qarase on the basis of the doctrine of necessity. On 5 September 2001, the Fijian People's Party won the election and a coalition government led by Qarase was formed. Qarase 150 (2001-2006)

The Constitution called for a multi party cabinet but Qarase declined to offer Mr Chaudry or any Fiji Labour Party members a place in the cabinet, contrary to clear provisions in the Constitution. Many coup-related controversies emerged during Qarase's government. On 6 August 2004, Vice-President Ratu Jope Seniloli, and the Deputy Speaker of the House of Representatives, Ratu Rakuita Vakalalabure, were found guilty of treason and were given prison sentences of four and six years, respectively. Both are a coalition partner in Qarase's government. Anxious not to lose the six votes of that party, on which he relied for his parliamentary majority, Qarase declared that he was "dismayed by the severity of the sentences" that had been handed down.

His government indicated,

however, that it would not interfere with the process of law. On 29 November 2004, however, Attorney General Qoriniasi Bale announced that the government had decided to parole Seniloli on health grounds, in return for his resignation.

A similar scenario unfolded in the trial of Ratu Naiqama Lalabalavu, the Minister for

149 150

Purporting to act under section 109(1) of the Constitution. I was residing in Suva, Fiji during this period and have full recall of many of these events as they unfolded.


Lands and Natural Resources, and Senator Ratu Josefa Dimuri. On 3 April 2005, Lalabalavu and Dimuri were convicted of unlawful assembly for their role aiding and abetting the 2000 coup by visiting rebels at the Sukanaivalu Barracks on 4 July that year, and were sentenced to eight months' imprisonment. Lalabalavu subsequently resigned his ministerial portfolio. Both were released on parole after serving just eleven days of their sentences.

Besides these actions of the Qarase government, there was the controversial parliamentary legislation to establish a Reconciliation and Unity Commission with powers to compensate victims and pardon perpetrators of the 2000 coup. Qarase was reelected Prime Minister after general elections in May 2006 and led the House of Representatives with 38 members. Matters grew worst between the military and the Government. 151 and exchanges between them grew 'hostile and acrimonious'. In October 2006, the military issued a series of requests to the Qarase Government including the public declaration that the 2000 coup was illegal and remove from office all those involved and implicated. 152 The army also wanted the withdrawal of three extremist bills because they had the potential to create conflicts in the indigenous race. The bills were “deviously constructed to capture the minds of the Fijians that it is ideal for them. In reality, it is a quest to buy votes for political expediency and supremacy.� 153

Bainimarama (2006-2014) Efforts were made to resolve the impasse 154. On Saturday 2nd December 2006, a meeting took place in Suva between the President, the Vice-President, the Commander, and later between the Vice-President and the Prime Minister. 155

On Tuesday morning, 5th

December 2006 the Fiji military forces had taken control of Suva and the Commander assumed executive authority and declared a state of emergency. 156 On 4th January 2007, Bainimarama handed back executive authority to the President and the next day was appointed as the Interim Prime Minister by the President. 157 The High Court of Fiji in 151 152 153 154 155 156 157

Qarase v Bainimarama HC Suva [34] Ibid at [36] Ibid at [37] A list of the key reasons and issues that created and led tot he impasse is given Ibid at [68] Ibid at [47] Ibid at [49] Ibid at [70] pursuant to powers under section 103(2) of the Constitution.


Qarase v Bainimarama 158 lead by acting Chief Justice Gates held the President's actions “valid and lawful acts in exercise of the prerogative powers of the Head of State to act for the public good in the time of crisis.” 159 The Court of Appeal gave judgement on the Thursday 9th of April 2009 and declared the actions of the President unlawful under the Fiji Constitution and said “it would be lawful for the President acting pursuant to section 109(2) of the Fiji Constitution, or as a matter of necessity, to appoint a caretaker Prime Minister to advise a dissolution of the Parliament and [call for election].” 160 On the 10th of April 2009, Fiji's Head of State, Ratu Josefa Iloilo abrogated the Fiji Constitution 161 and announced that he would appoint an interim government for the next five years to implement the necessary reforms, in the Charter for Peace, Change and Progress, as required for “true democratic and parliamentary elections”. 162

Public

Emergency Regulations 2009 came into force at 12pm. At 5.50 pm the same day, the police assigned officers to the Fiji Times office to closely monitor news broadcasts and publications. [Indeed the] President Ratu Josefa Iloilo has taken the country into uncharted waters by [...] abrogating the Constitution and declaring a new legal order. 163

Bainimarama ordered the Army to return 'back to barracks 164 on April 11 2009 and waited for the President to decide his next step. At 10.15 am Bainimarama was reappointed as Fiji's caretaker Prime Minister. 165

6

Fiji's Constitutional Issues

The close relation of law to the social structure 166 brings into prominence the foundations upon which the governing structures are established. In the case of Fiji where the old structures have been continuously challenged and numerous attempts have been made to 'fix' the problems via coups, constitutional reforms, legal battles, political dialogues and

158 159 160 161 162 163

Qarase v Bainimarama HC Suva Civil Action No. HBC60.07S HBC398.07S Ibid at [171] Qarase v Bainimarama, Court of Appeal, Fiji, 9th April 2009. Fiji Times, Friday 10 April 2009, 11.35am. Ibid. http://www.fijilive.com/news_new/index.php/news/show_news/15061 'Fiji in ‘uncharted waters’ 10/04/2009 : comment from an executive director of the SDL party.

164 165 166

Fiji Times, Saturday April 11, 2009. Fiji Times, Ibid 'Commodore Bainimarama is Interim PM'. Schwartz and Miller (1964) 70 Am. J. Sociology 159.


forums etcetra. Despite all these efforts, satisfactory result has never been upheld for a prolonged period.

Bainimarama's team is making another attempt to fix the deep-rooted issues that have plagued Fiji's past present and future for a long time. As a citizen of Fiji, my only hope is that his attempt is not a repeat of Rabuka's efforts and so far the signs are looking positive. Many of the conditions that were present during Rabuka's coup are no longer a threat to native Fijians, for example, the demographics up till Rabuka's coups weighed in favour of Fiji-Indians and the fear of Fiji-Indian dominance in politics lead to the initial 1987 coup and the same fear was used to gather a support base from the native Fijians.

It is important that we look at the concept of justice because “[p]eople can be cruel, insensitive, mean, generous or caring. But only the basic structure of society can be just or unjust”. 167 The issue in Fiji is one for developing the structure of society to meet the needs of its people. The need is to let go of the past and move forward. Fiji's past leaders have identified the source of Fiji's problems many times and institutions have been formed to entrench rights of the i-taukei.

Indigenous Fijian desires to protect their lands are justified given their historical relationship to the land but native reserves was established to support and maintain the native population and; [no part of it] was allowed to be sold or leased without the consent of the Chief … and the heads of all the families of the tribe, as well as the assent of the Government. [T]he Chief of every [tribe] should be acknowledged as the owner of the lands of the tribe and the guardian of the interests of his people in such lands. The people of every [tribe] should be viewed as tenants of such lands under the Chief with hereditary rights of lesseeships, subject to the duties of lessees, toward the chief proprietor to whom they should pay as a land rent for this support such lala 168 as may be mutually agreed on on the shape of labour or produce. 169

Sir Lala Sukuna saw the danger of Fijian land not being used as long ago as 1936, in a speech to the Council of Chiefs, he said: It is thoroughly understood that the control of our lands is in our hands, but the owner

167 168

169

Letsas in M Freeman and R Harrison, (eds.) Law and Philosophy (2007), p.49, 51. Legitimate service to assist in hut building, chief's garden and supplies of food, when required for visitors or extraordinary occasions.. Part V paragraph 17 and 19, Letter from Sir Hercules Robinson to the Earl of Carnarvon en route to Sydney from Levuka, October 16, 1874. As presented supra n 51.


of the property has an important duty to perform. ...It is the bounden duty of landowners to utilize what they possess for the benefit of all. An idle landowner neglects his duty to his state. … [H]e should lease the surplus to those that can make use of it.

Titles to Land was considered; the most serious question [and] of the gravest importance to the future peace and prosperity of the Colony. The broad principles to be followed in the difficult and exceptional case of Fiji are; 1.

2.

3.

4.

[T]hat the whole of [Fiji] … has by virtue of the Instrument [of Cession] become absolutely and unreservedly transferred to the Crown, and the Queen has the full power of disposing of the whole of the land … as Her Majesty may seem fit, having regard to such interests as She may deem to deserve recognition under Article 4 of that Instrument. [Deals with European land claims at the time] and if the land appears to have been acquired fairly and at a fair price … after due enquiry … a Crown Grant in fee simple of the land [be granted]. That the Native Titles to land not so granted to Europeans should... be … verified [and] determined [to be[ in occupation of or actually required for the probable future support … of Chiefs and tribes. [T]he Crown should hold such lands in trust for … the tribes, families or Chiefs. That henceforth all [private] dealings in land shall … be invalid and not recognisable by any Court of Law, [and] expressly forbidden by enactment, [and when anyone] desires to purchase any lands his application must be addressed to the Colonial Government. Ordinance for Land transfer [is] to be enacted on the model ... now in force in Australia. 170

These were clearly the “broader questions of principle that should not] be left to the Commission to decide”. 171 In 1903, Mr Joseph Chamberlain, 172 wrote about the aims of the British Government; is the encouragement among them of a spirit of individual effort and self-reliance … The communal system must continue for the present in its essential features, while at the same time everything possible should be done to ensure that it shall not be worked exclusively for the benefit of the ruling class but with … intention of using it to educate the natives so that it shall become less and less necessary to them. 173

The issue of Fijian identity was real at one stage. Fijians were outnumbered by Indians for a very long time and their fear of losing the Fijian identity was real and fuelled support for the earlier coups. But changes in demographics means the Fijians now outnumber others and no longer have that excuse.

170

171

172 173

Part V, paragraph 13 of the Imperial Instructions from Earl Carnarvon to Sir AH Gordon concerning the settlement of cession problems, dated 4th March, 1875, as in supra n 51. Ibid, at paragraph 14: A Commission was to be appointed to inquire and report about the issue of land but any uncertainty was to be redirected to Her Majesty's Government for clarification. The Commission was to be composed of persons unconnected with the Colony prior to Cession. Then Secretary of State for the Colonies. Supra n 48, 132


The electoral system lies at the heart of all issues and needs to be addressed urgently to ensure a fair and just society prevails and all forms of discrimination is uprooted. Fiji's problems are 'deep-rooted and complex'. 174 The current stance of the interim government is an attempt by the President to resolve some of these 'deep-rooted' issues that have plagued Fiji since independence and perhaps even long before independence. The people of the Fiji Islands have unfinished constitutional business. 175

To understand the full depth of the Fijian issues, one must understand the history of those issues. Fijian issues have existed since before the 1874 Deed of Cession and are likely to continue into foreseeable future.

7

The Way Forward [A] more fundamental reason why the natives should learn […] to play a useful part in the civilisation to which they now belong; [is] the survival of the race. Their old life has gone for ever; […] all the hideous customs and practices that made them notorious towards the middle of last century have passed away; but most of their good qualities remain – their courtesy, hospitality, camaraderie, joyousness, love of adventure, submission to authority. One thing they lack […] is the will to work on. The Fijian is capable of great exertion – for a short time, and he takes readily to … work that appeal to his sporting instincts [but not] in occupations that require constant vigilance, sustained effort and … responsibility. The Fijian must overcome these defects if he is to survive. 176

Traditional counterparts, such as New Zealand and Australia, are being left out of a beautiful Fiji that lies on the horizon as United States is set to 'reinvigorate' Pacific interests 177 as the United States Secretary of State Hillary Clinton assures that its' influence nor its interests in the Pacific are not on the wane. We want Australia as well as other nations to know that the United States is not ceding the Pacific to anyone. We have long-standing, bilateral relationships with nations like Australia and others, and we have a very active multi-lateral agenda that we intend to reinvigorate. 178

This reassurance follows US congressman Eni Faleomavaega's two-day visit to Fiji. Mr Faleomavaega has urged the US to step up its presence in the Pacific and to not be overly 174 175 176 177 178

People's Charter, at 5. Introduction at paragraph 1.1 of supra n 94. Supra n1, 237-238.

Fiji Times, Thursday, June 04, 2009, Update: 4:33PM Hilary Clinton to Radio Australia's

Canberra correspondent Linda Mottram.


reliant on Australia and New Zealand when charting its foreign policy.179 Faleomavaega says Australia/ New Zealand heavy-handed approach to Fiji makes matters worse; US role required.

Could this be another turning point in Fiji's history as after 1874, the term 'ceding' has appeared from a fresh Obama administration that is carrying out dialogue with its 'enemies'. Perhaps a suggestion for an old custom of Sevusevu is in order and an ancient 'slight' made not so long ago for a sum of five thousand dollars for losses incurred at an event that “occurred on the 4th of July 1849 when the American Consul was celebrating his Independence Day on the island of Nukulau”180 and Tui Viti “had not [caused] the losses complained of.” 181

Such an allegation against our most honoured Tui Viti

Cakobau, he who lead the battle of Kamba alongside King George of Tonga in 1855 and saved Fiji from the forces of Heathenism,and today Fijians enjoy the warm love of God in their hearts because of that single event. It remains an impediment in the mind of a Fijian, so bound by this custom centuries old and by respect for his highest chief. The 'slight' is perhaps the only obstacle for American interest in the Pacific and the presentation of a Tabua, some kava, and fresh dialogue with the descendants of Tui Viti Cakobau, and then maybe join in for a meke and conduct affairs the Pacific way. Perhaps it is time to understand one another. Perhaps the wheels are already in motion as suggested by the remarks of His Excellency Winston Thompson Ambassador of Fiji to His Excellency Barack Obama, President of the United States;182 Your ascendency has given the People of the Fiji Islands great optimism that a new dawn has arrived in the history of US - Fiji relations.

I cannot help but fear for New Zealand's relationship with Fiji at this crucial stage. The Maori Party co-leader Tariana Turia was correct in her estimate of the situation and there is an urgent need to send a delegation to meet Fiji's leaders, if New Zealand does not enter constructive dialogue, its interests and more importantly its long term relations with Fiji will be affected. [Perhaps New Zealand's] chief would feel deeply humiliated by [his] display of passion at the wrong moment, and unguarded outbursts [should be] followed by apologies and gifts of repentance. 183

Fiji is a small country whose inhabitants are courteous and full of 'joyousness' and are 179 180 181 182 183

http://www.house.gov/apps/list/press/as00_faleomavaega/eniopedonfiji.html Supra to note above in historical coverage. Supra n 48, 8. On the occasion of presentation of credentials at the White House 20th May 2009. Supra n1.


lead by our President of the Republic of the Fiji Islands His Excellency Ratu Josefa Iloilovatu Uluivuda and Vice President of the Republic of the Fiji Islands Ratu Epeli Nailatikau who is also a great-great-grandson of Tui Viti Seru Epenisa Cakobau from his daughter Adi Cakobau, in addition, he is a grandson of King George Tupou II of Tonga. His father is the product of issue between HRH King Tupou III and Adi Litia Cakobau who was sent to Tonga as a trial bride to the King but was later rejected as they could not wed under the normal Tongan constitution.

Fiji's constitutional issues, 'a shadow of our Colonial past', plague its progress and the policy of segregation enshrined in the electoral, health and educational processes as a means to control must be uprooted once and for all and a path paved forward for Fiji 'as we stand united under noble banner blue and we honour and defend the cause of freedom ever onward march together God bless Fiji. 184

8

Sources and References :

Ali, Plantation to Politics : Studies on Fiji Indian, Suva, University of the South Pacific and Fiji Times and Herald Ltd, 1980, at p. 156.

Sir Alan Burns, Fiji, (1963), Her Majesty's Stationery Office, London, part of the Corona Library. Eddie Dean and Stan Ritova (eds.), Rabuka: No Other Way,(1988). Moorebank. Henderson GC, Fiji and the Fijians; 1835-1856, (1931), Angus & Robertson Ltd, Sydney. Henderson GC MA (Oxon),“The Evolution of Government in Fiji”, Sydney, (1935). Henderson GC, Fijian Documents Political and Constitutional 1858-1875 (1938), Angus & Robertson Ltd, Sydney. Lal, Power and Prejudice. Lawson S, The Failure of Democratic Politics in Fiji, (1991), Claredon Press, Oxford. Lawson S; Working Paper no.93, “Constitutional Change in Contemporary Fiji : the Apparatus of Ideological Justification”, National Library of Australia, Canberra, October 1990. 184

Words by: Michael Francis Alexander Prescott (b. 1928)


Letsas in M Freeman and R Harrison, (eds.) Law and Philosophy (2007). Reeves P, Vakatora TR, Lal BV, Towards a united Future; report of the Fiji Constitutional review Commission (1996), Parliamentary Paper no. 34 of 1996, Government Printer, Suva. Roth GK, “Native Administration in Fiji During the Past 75 Years”, 3. Simione Durutalo, 'The Fiji Trade Union Movement at the Crossroads – Social and Political Options for the Labour Movement', Journal of Pacific Studies, 11 (1985), 204. Williams G, 'The Case that Stopped a Coup? The Rule of Law in Fiji', transcript of lecture delivered at the Victoria university law school in Wellington on 27 November 2003. Wright AA, First Assistant Colonial Secretary, 3rd edition, The Colony of Fiji 1874-1931, (1931). JJ McHugh, Government Printer, Suva. “Native Taxation in Fiji” a paper read by Sir Arthur Gordon before the Royal Colonial Institute, London, on 18 March, 1879. 'Native Councils in Fiji, 1875-80', by Sir Arthur Gordon, Contemporary Review, May 1883. http://www.statsfiji.gov.fj/

Fiji, Legislative Council Debates, 1940s. Fiji, Legislative Council, Report of the Commission of Enquiry into the December Disturbances, CP 10/1960, and for a detailed analysis see FJ West, 'Background to the Fijian Riots', Australian Quarterly, 32 (1960), 46-53. Fiji, Legislative Council, Report of the Fiji Constitutional Conference 1970, CP 5/1970, 1. Fiji, Parliament, Report of the Royal Commission, PP 24/1975. Fiji Times Fiji Sun


APPENDIX 1 : CENSUS DATA FIJI 1881-1996.


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Fiji's Unfinished Constitutional Business (2009).