Home » Uncategorized » Professor Narsey’s Bulletin Three: Constitution and Contentious Decrees

Professor Narsey’s Bulletin Three: Constitution and Contentious Decrees

The Bainimarama Regime has purportedly made numerous changes to the laws of Fiji, including the imposition of its own constitution, the 2013 Bainimarama/Khaiyum Constitution (2013 BKC). These laws are “operational” (i.e. being implemented by the judiciary) in the absence of any significant physical opposition or popular uprising from the people of Fiji.

Many voters will however have strong views on some of the changes implemented by the 2013 BKC. Voters and political parties should not waste their energies on debating the many changes which a future elected parliament will have every moral and lawful authority to change. Voters simply need to know the stand of the political parties on the following:

Issue 1:
Which constitution do we have now?

The average voters do not have a clue and probably do not care: they will simply go along with the Bainimarama Government who control the judiciary, army and police.

The voters will take part in the elections under whatever electoral regulations this regime decides on. This is the pragmatic position taken by the existing political parties who simply want the return of an elected parliamentary government.

But the ultimate judge of the validity of a constitution has to be the judiciary, which has not made, or has not been allowed to make a judgment, following the definitive 2009 Court of Appeal.

The current situation appears confusing partly because the Ghai Constitution Commission made the critical mistake of attempting to present a “new” draft constitution, rather than an “Amendment” of the 1997 Constitution. Readers may wish to read the following which was part of my Final Submission to the Yash Ghai Commission:

http://narseyonfiji.wordpress.com/2012/12/27/wadan-narsey-final-submission-to-yash-ghai-commission-in-segments/b-new-or-revised-constition-and-how-it-is-not-semantics/

Any constitutional revision, must itself abide by the “rule of law” already existing. The public can recall the words of the current Chief Justice (Anthony Gates) in his ruling in the case Koroi v Commissioner of Inland Revenue (2001).

“It is not possible for any man to tear up the Constitution. He has no authority to do so. The Constitution remains in place until amended by Parliament, a body of elected members who collectively represent all of the voters and inhabitants of Fiji… Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution. Eventually the original order has to be revisited, and the Constitution resurfaces .. and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”

Technically, the 1997 Constitution is still in place. Therefore all contentious decrees or actions of the Bainimarama Government since December 2006 must be verified by a future elected parliament, or changed, as explained in my Submission to the Ghai Commission here:

http://narseyonfiji.wordpress.com/2012/12/27/wadan-narsey-final-submission-to-yash-ghai-commission-in-segments/e-contentious-issues-should-be-decided-by-the-next-parliament/

The issues discussed further in this Bulletin 3 cannot be decided by a military dictatorship, however “progressive” some changes may appear to be, to some of our citizens.

Voters need to ask political parties whether

(a) they support the 1997 Constitution; and

(b) they believe that the next elected parliament will be free to examine any changes from the 1997 Constitution, implied by the 2013 BKC and any changes proposed by the Ghai Draft Constitution.

Issue 2
The special place of indigenous Fijians

The UN Declaration on the Rights of Indigenous Peoples, was verified by the General Assembly in 2007.

While accepting the fundamental equality of all peoples, the Declaration nevertheless noted that indigenous peoples the world over have suffered marginalization through colonialism and globalization.

The UN recognized the need to respect and promote the rights of indigenous peoples affirmed in historical treaties and other constructive agreements with the state.

The UN declaration encouraged states to enhance indigenous peoples rights through consultation and co-operation with them (and not by force).

Article 5 states clearly that indigenous people “have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions”.

Just these few references suggest that the Bainimarama Regime, through the 2013 BKC and other decrees, is forcing many changes on the Fijian people and institutions in complete contradiction of the UN Convention: abolishing the GCC, removing the term “Fijian” from the indigenous people’s exclusive use, banning the use of Fijian names of political parties, etc.).

Voters may ask all political parties to declare their position on the UN Declaration on the Rights of Indigenous Peoples, and their relevance for indigenous Fijians in the laws of Fiji.

Issue 3
Great Council of Chiefs (GCC)

Some may argue that the GCC has not served either the interests of indigenous Fijians or Fiji as a whole, as well as they could have and that the Bainimarama Government was right to “close down” the GCC. The first part of this statement may well be correct, as is suggested in this article of mine.

https://narseyonfiji.wordpress.com/2012/03/17/the-great-council-of-chiefs-suspension-not-a-winding-up-order-but-a-wake-up-call-the-fiji-times-28-july-2007/

However, an unelected military government has no moral or legal authority to close down an institution which was an integral part of the system of governance approved by all elected Fiji parliaments. The next elected parliament will be free to resuscitate the GCC in its former or any reformed form.

Votes may ask all political parties to declare their position on the Great Council of Chiefs, following an elected Parliament.

Issue 4
The Senate

The Senate was a useful “checks and balances” mechanism, to the elected House of Representatives- a useful “Upper House of Review” able to present a more mature perspective, less influenced by “populist” opinion. It was an integral part of the 1997 Constitution in many ways. The next elected parliament will be free to resuscitate the Senate in its former or some reformed form.

Voters may ask all political parties to declare their position on the Senate following an elected Parliament.

Issue 5
Changes to land and mineral resources legislation

It is not for the unelected Bainimarama Government to bring about any changes to Fiji’s land and natural resources legislation. These will all need to be revisited by the next elected Parliament.

Voters may ask all political parties to declare their position on all land legislation decreed by the Bainimarama Government, and their stand following an elected Parliament.

Issue 6
The electoral system to be used for future elections.

The coming elections will be held under whatever regulations are issued by the Bainimarama Government. Given the secrecy of the Bainimarama Government and non-accountability, the Fiji public still has no idea what the system will be.

However, the elected Fiji Parliament will be free to change the electoral system in way they wish. My submission to the Ghai Commission for a desirable electoral system may be read here:

http://narseyonfiji.wordpress.com/2012/12/27/wadan-narsey-final-submission-to-yash-ghai-commission-in-segments/d-my-recommendations-for-the-electoral-system/

Voters may ask all political parties to declare their position on their vision of a future electoral system, following an elected Parliament.

Issue 7
The common name to be used for Fiji citizens (“Fijians” or whatever).

For some Fiji citizens, one of the positive initiatives of the Bainimarama Regime has been the attempt to create a common national identity and common name for all Fiji citizens.

There is no dispute with the attempt to create a common national identity. However, the decreed use of the word “Fijian” to describe all Fiji citizens is contentious on a number of grounds, as I have attempted to explain here:

https://narseyonfiji.wordpress.com/2012/03/18/fijians-i-taukei-indians-and-indo-fijians-name-changes-by-military-decree/

Such name changes must not only be left to Parliamentary majority, but should require some consensus from the indigenous Fijian community who have historically been associated with this name.

Voters may ask all political parties to declare their position on the use of the word “Fijian” to describe all Fiji citizens, following an elected Parliament.

Issue 8
Immunity for coup perpetrators and supporters

While immunity may be granted by an elected parliament, such total immunity may not be granted for the abuse of fundamental human rights. The nature and extent of the immunity that the Bainimarama Government is granting itself may be read here:

http://narseyonfiji.files.wordpress.com/2012/12/c-non-negotiable-aspects-of-the-draft-constitution.pdf

The next elected parliament will need to revisit the entire question of immunity.

Voters may ask all political parties to declare their position on immunity provisions, following an elected Parliament.

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11 thoughts on “Professor Narsey’s Bulletin Three: Constitution and Contentious Decrees

  1. Does Narsey actually believe that anyone would get straight answers to any of these questions?

  2. Fiji has people who can talk only over grog bowl.
    Fiji is ruled by a group of about 20 people who are keeping the contry and it’s people ransom. It time for people to take action and get rid of the current thugs.The constitution and the decree are all illegal and must be challenged in the court by the current political parties.
    The current thugs must be tried in the court of law. The chief justice , judges and magistrate
    ( foreigners) must do the right thing and leave Fiji immediately otherwise where are the i Taukei’s .Break in there houses and ensure they leave Fiji. These people are the biggest problem as they are supporting the current illegal government.
    The people of Fiji must raise and create instability and get the illegal regime removed.

  3. What Narsey believes is inconsequential Anon.

    All he is doing is providing guidance so that voters can determine which prospective politician is best aligned to fundamental values that they believe in, and then hold them to their promises if they are successful.

    Should voters remain apathetic and disinterested then they will get a government that they deserve.

    I think we all know that the elections are going to be rigged by the illegal & treasonous regime but it is not an excuse to give up without a fight.

    The power is now in the hands of the voters — that is the take home message from Narsey — and voters must wield this power with wisdom & foresight.

  4. This is the kind of analysis that the public need to be able to make wise choices in the coming election.

  5. prof warden narsey asked prof mahen dah reddy why he never opened his mouth when his recommended minimum wage was set aside by the military government of bai-kai?
    the answer is very simple : to open the mouth the arse hole must be closed tight. but when you work for the military thug rulers the arse hole is always open wide. it’s a case of riding the tiger. you can’t disembark because you will be phucked. that’s why Mahen dah can’t open his mouth. he can’t criticised his political masters.
    an academic who can’t speak his mind freely is an academic who is phucked.

  6. These questions are more then helpful! they take the role of a lightpost/beacon on our search for the “ethical” leader. To put it plainly, it has taken Fiji, at least, 8 years trying to put things right and to be honest, there is now a greater sense of disunity and fragmentation amongst ordinary citizens and to tell the truth, I-taukei’s patience/ understanding are being tested again and pressure is building like an unsuspected Volcano, building momentum within. The by-product of the last 8 years has only added to the frustrations over old and tired policies which took 8 years to remove and inthe process made a few priveleged leaders “millionaires’, and still 90 degrees away from its intent, causing more friction amongst the senistive and silent ones, and only time will tell. Bainimarama failed to unite people as we have done so in the past.

    Narseys comments – probe two things ( in my view) – 1. the appropriatness of the ‘yardstick’ used to measure and weigh up leaders, leadership and development in Fiji; and 2. secondly, the calibre and credibility of the user/holder of that yardstick. Fiji has got everything but an ‘ethically’ driven Leader who can truly inspire peoples and the nation. No not one in sight yet.

  7. Issues pointed out by Narsey just confirms the illegality of everything under the Bainikaiyum regime! Reforms carried out do not have legal basis because of the very way they were carried out – changes and abolition of institutions via self-imposed decrees are not democratic transformations but dictatorial! Narsey is right in drumming up questions about the whole Bainikaiyum project for voters to understand. They are issues that will certainly be revisited when true representative democracy returns. The closed, unaccountable, unfair, and unequal manner in which the Bainikaiyum reforms reforms have been instituted has a lot to be desired about! The entire Bainikaiyum regime which faces challenge of re-imaging itself to voters know too well that all the illegal projects they have been up to over the past years is going to be reviewed and will undergo thorough scrutiny when new leadership and genuine parliamentary democracy returns. This will not happen under a Bainikaiyum government! Useful being reminded of Argentina’s case that saw criminals responsible for a coup who had enriched themselves from the nation’s wealth being convicted 30 years after it had happened. Fiji might not be that long but it certainly is coming! Bainikaiyum’s constitution is no barrier to that.

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