Constitution-making in ‘divided’ societies (Part 1)

If we argue that “[c]onstitutionalism is the idea… that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations”[1], a central contradiction arises in the tension between limiting government’s powers and making this practicable given that government creates the laws of a country. This carries within it the implication that for constitutionalism to be effective, for its scope and limitations to be meaningful, its tenets must become entrenched – obdurate, fixed, impermeable to change, and by logical extension written down in black and white.

But how do the fixed entity and principles of constitutionalism interact with dynamic societal change? Is the constitution superior to, and more fundamental than, the society to which it applies? Or ought we to refine constitutionalism to mean a living entity, developing in tandem with changing political values and principles? And, more crucially, what relevance does constitutionalism have for the inhabitants and citizens of a multiethnic country – like Fiji, say?

Let’s start by saying that “all states have constitutions and all states are constitutional states[2]. Meaning that all states, however and by whomsoever they are ruled, run on the basis of a set of norms. But what happens to these norms in the event of cultural diversity, when what is normative is no longer uncontested but becomes a value to be defined, to be struggled over by people demanding recognition of their diverse cultures within the state? Legal pluralism extrapolates the variety of ways in which contemporary constitutionalism engages with the demand for cultural recognition, and uncovers “hidden constitutions” and practices that accommodate cultural diversity even while the state’s constitutional model remains intact[3].  

To understand how cultural diversity was accommodated in Fiji before she began upon her path of independence we have to look to colonialism, and to the differential relationships that the British held and nurtured with indigenous Fijians and IndoFijians, and thence between them. Indigenous Fijians were entombed in a paternalism that sought to safeguard cultural practices and ways of life at the cost of participation in the modern economy, an aspect of which led to the enshrining of the Great Council of Chiefs, whose members helped apply the paternalistic creed and became a consolidated hub of indigenous Fijian cultural-political leadership.

IndoFijians, meanwhile, were left to haphazard patterns of post-indenture settlement governed by a colonial edict of segregation, and formed an ethnie linked to their land of origin in respect to cultural diacritica and the politics of equality that was spreading via the Indian independence movement, while seeking to simultaneously apply this political consciousness to their land of settlement – Fiji.

Neither ethnie has been involved in the struggle for cultural recognition merely for the sake of participating in the state with their cultural heads held high, nor have either of them sought to stake out a territory for their own cultural nation carved out of the state; the ‘hidden constitutions’ path has never been on either ethnie’s agenda. What both indigenous Fijians and IndoFijians struggle to achieve is authorship of the political foundations of the country they both call home.

How they differ is in their interpretation of what ought to anchor those foundations – the indigenes calling forth an ethnic nation in which are inscribed the fundamentals of the modern Fijian ethnie, notwithstanding academic attempts to persuade them that their ethnic identity is composed of colonially created neo-traditions; the post-indentured migrants pursuing a form of secular statehood in which secularity stands in opposition not merely to religion but to culture and ethnicity.

The conflict in Fiji, then, is not of an ethnic quality or type. While the indigenous Fijians are pivotally ethnic in their self-identification; the IndoFijians are not so much because theirs is a race-class identity much like that of the African-Americans. The conflict is one of political philosophy. And it’s natural therefore that the politics of Fiji should be so closely tied to constitutions[4], to a struggle for control of the foundations on which the state of Fiji is built.

The question of those foundations is of course the subject of much debate and discourse in Fiji today – social media providing the public space for articulation among Fiji’s citizens; civil society and non-governmental organisations engaging in research and forums to discuss the constitutional ‘crisis’; and those of us who will forever be outsiders (but who love Fiji) diving into the paradoxes of a liberalist paradigm that demands the triad of democracy, multiculturalism and indigeneity.

The military-installed government of Fiji has abrogated the 1997 Constitution, set up a constitution commission to construct a new one, thrown six months of assiduous work and the culturally-sensitive but forward-looking draft out on its ear, discarded frankly problematic plans for public participation in the form of a (public figure-led) constituent assembly, composed a starkly civic, unforgiving and forthright constitution draft in its turn, and following a month of briefings and submissions has now retired until 1 June –on which date, or later, it will announce a probably unchanged version of its document as Fiji’s new constitution.

We cannot be surprised that government’s draft constitution will remain unchanged, because its author – the Attorney-General – has clarified abundantly his position on constitution-making in ‘divided’ societies, via a Masters thesis on the question[5]. Following a handwritten inscription that expresses hope for a better and fairer Fiji – which makes me wonder whether the now Attorney-General knew of his future role and responsibilities back when we debated the issue during my time in Fiji (2002-4) – he states that all Fiji’s citizens be called Fijian, with ethnic emphasis resigned to illuminating specific ideas or interpreting events.[6]

The effect of the Attorney-General’s constitution is to likewise separate the state from ethnicity, without demanding the impossible feat of doing away with ethnicity as a prime anchor of self-identification and interpretation. It is a reform of the foundations of the state in the manner of Descartes – “thorough and systematic reform in accord with a central plan appears more reasonable than adjustment and accommodation to the assemblage of customs and laws that already exist”[7] – based on a central plan of making Fiji worthy of a place in the international matrix of states, as a player on the international scene, by presenting to the world a Fiji that stands in stark differentiation to the rest of the postcolonial, ethnic-conflict mired, world.

Then again, Descartes also implied, on one scholar’s reading, that it would be “unreasonable for an individual to plan to reform a state by changing it from the foundations up and overturning it in order to set it up again”[8].

[1] Stanford Encyclopedia of Philosophy “Constitutionalism” September 11, 2012

[2] ibid

[3] James Tully. Strange multiplicity: constitutionalism in an age of diversity. Cambridge University Press. 1995:99

[4] Cottrell & Ghai “Constitutional engineering and impact: the case of Fiji” (pp159-192) in Arjomand (ed) Constitutionalism and political reconstruction. Brill. 2007

[5] Aiyaz Sayed-Khaiyum. “Constitution-making in ‘divided’ societies”. Unpublished MA thesis. Sydney. 1997

[6] ibid:6

[7] Tully. 1995:101

[8] ibid:102


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