Fiji rides the constitutional carousel… again (Part 1)

Venerated constitution expert Yash Ghai submitted a draft constitution to Fiji’s Bainimarama government in the twilight of 2012. As Chair of the Constitution Commission he led three months of fieldwork gathering submissions from citizens across Fiji, then spent a further three months drawing these together into a draft with his Commission colleagues, all the while soliciting the considerations of a wide range of scholars, experts and practitioners.

A Fijian research analyst who worked with the Commission told me that not only was the entire process impressively organised, but that the resulting draft seemed to convey and accommodate the wide-ranging views and opinions of the Fiji people.

One of these views relates to Fijian paramountcy, which is often invoked as a basic ethnic group right, on par with human rights. It unifies the trident root of modern Fijian identity expressed in lotu-matanitu-vanua, and fits snugly into the twentieth century explosion of (ethnic) identity politics.

The trick for Ghai presumably was how to balance heuristic cognisance of the crucial role that Fijian paramountcy plays in fostering ethnic security on one hand, while on the other steering a consociational path towards Fiji’s future as a democratic multicultural nation, which we must consider integral to his brief given the civic-nation sentiments of Bainimarama’s government.

It takes a singular understanding of, even reverence for, Fijian culture to achieve the delicate balance between ethnic-and civic-nation sensibilities by writing a constitution imbued with the subtleties of kerekere. But that is precisely what the Ghai draft achieved.

The Ghai draft submitted the constitution to ethnic Fijian sensibilities and judgement in the form of a culturally-attuned request. Quite a masterstroke. And it needed to be, because the request included universal common roll voting and commitment to multicultural nation-building.

If the Ghai constitution draft could speak, it would have said:
“We recognise the principle of Fijian paramountcy and the narrative of the gift through which British colonial rule and Indo-Fijian settlement in Fiji have become ethnically historicised, interpreted and rationalised. We ask that in the same welcoming spirit, you now acquiesce to Fiji’s transition to a multicultural democratic polity.”

In obeisance to another dominant strand of opinion that emerged from the Constitution Commission’s fieldwork, the same Fijian research analyst noted in personal communication with me that the Ghai draft’s eradication of Fiji’s culture of coups was in direct response to the people’s will.

In fact, my own fieldwork in the years between the 2000 and 2006 coups yielded what I have since come to understand as feigned complacency about the country’s ‘coop’ culture (as the event of 1987 was originally known), hiding more desperate feelings of ‘enough, already!’

It is at this point that the real debate about constitutionalism in Fiji emerges. Fiji has ridden the constitutional carousel once too often in its relatively short postcolonial life, coup crises segueing into constitutional crises as a matter of form. Consequently, it pays to adopt a slightly sceptical stance about the sanctity of any given constitution as well as the idea relayed by constitutionalism.

All the more so when you consider that the Ghai draft constitution – the work of the Constitution Commission established by Fiji’s military-led government – has been shelved by Fiji’s Bainimarama government, dismissed one imagines as an unpalatable paean to indigenous cultural sensitivities and crucially lacking a forthright civic attitude as well as that much-needed immunity clause for members of the present government.

The country’s Attorney-General, Aiyaz Sayed-Khaiyum, somebody with whom I discussed and debated Fiji’s ethnic instabilities back in 2002-4 when he was a corporate lawyer, has therefore authored a government draft constitution. Ghai supervised Sayed-Khaiyum’s Masters thesis on constitution-making in divided societies. Now the student has ousted the teacher. But to what effect? And what will it mean for Fiji?

As my next post will demonstrate, the government draft constitution – though dismissing the kerekere impulse of Ghai’s draft, curbing rights in the restrictive manner we expect of military regimes, and concentrating executive power in the hands of the PM and Attorney-General – is a predominantly future-focused document that verily yanks Fiji into some semblance of a modern nation-state that can take its place close to the top table, away from the ghettoising image and effects of ethnic political conflict.

How far the present government and its constitution will succeed in transforming the political landscape, the ethnicist impulse and the fortunes of Fiji – well, that remains to be seen. Fiji is home to approximately 800,000 people, among them a majority indigenous population whose sense of survival and security is wedded to ethnonationalist principles because Fiji is the only homeland they know and have.

By implicit logical extension, the non-indigenes of Fiji – specifically the descendants of those long-ago Indian indentured labourers – are envied for having both a homeland that conforms to indigenous Fijian notions of ethnonationalist dominance, and a home away (Fiji). The immigrant or transnational status therefore looks like a wealthy one considered from the perspective of an indigene who fears, or is cultivated to fear – a Maori or Aborigine future.

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