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


Between principle and process: debating constitution-making in Fiji

On Wednesday 24th April, Minority Rights Group International and the Citizens’ Constitutional Forum launched a report on the challenges and opportunities of diversity in Fiji ( I wish there were something new in this report to, well, report that we don’t already know regarding these issues, as well as the attitudes attached to them and the structures undergirding them.

In view of the report’s predictability, what emerged during Wednesday’s discussion at the London School of Economics was that it is the support act to a more fundamental ambition: that of calling the present military-installed and -led government of Fiji to task for abrogating due process… or at least the process it self-identified as part of the roadmap for Fiji’s return to democratic electoral politics.

So, while Minority Rights Group International and the Citizens’ Constitutional Forum purport to engage with the issues it regards as the beating heart of the Fiji Government’s (hereafter “FG”) draft constitution – moving beyond the ethnic paradigm in governance, representation and community relations (p2) – the real message conveyed at the event was that process must trump principle in the shaping of Fiji’s future.

In the report, MRG’s Head of Conflict Prevention, Chris Chapman, applauds the “revolutionary” intent of the Ghai draft constitution provisions relating to improving ethnic relations, tackling ethnically-biased policies and increasing government accountability (p2) – all of them, broadly speaking, emerging from the FG’s own non-negotiable principles (see p17), for which it ought to be credited, no?

Notwithstanding the numerous decrees and restrictions synonymous with miltary rule – and not for one monent defending these as conscionably correct – it remains the case that the FG draft constitution equals the Ghai version in calling for a shared citizenhip label, in enunciating government’s reponsibility to assist all who are in need of assistance, and in stating unequivocally that government is accountable to the people when it fails to deliver access to basic resources like education, a living wage and local infrastructure. These were part of the non-negotiables laid out by the FG in its brief to the Ghai-led Constitution Commission, and as such the FG is the progenitor of those aspects for which the Ghai draft is being lauded.

What is revolutionary about the Ghai draft isn’t the provisions singled out by Chapman, since these were part of its remit, but the language and symbolism in which these provisions were couched. I’ve referred in another post (Fiji rides the constitutional carousel… again [Part 1]) to the fantastic feat of cultural sensitivity that Ghai pulled off, and there’s a maturity and knack in being able to simultaneously enshrine ethnic diversity and retreat from the logic of ethnic identity politics as a practicable foundation for future national development – Chapman calls it an “impassioned, poetic plea” while I call it a wonderfully self-conscious act of kerekere.

The issue, though, is about much more than misplaced credit accruing from the fact that Ghai knows how to soften the blow of a constitution intended to be the foundation for a post-ethnic Fiji society while the FG clearly can’t be bothered with such niceties. No, the issue is about conforming to the de-legitimisation of military rule as a necessarily bad thing because – gasp! – the miltary overlords have diverted from the procedures and processes they themselves put in place. But as a rule, if you’re on the right side of the barrel of a gun, power and the power to decide what happens next is your prerogative.

And this, above all, is what CSOs – and the Commonwealth – seem to find most disagreeable about the FG, the waterfall of decrees and human rights abuses notwithstanding. Hence, the report’s recommendation that the FG reinstate the Ghai draft constitution and submit it to the participatory process entailed by a Constituent Assembly.

But will a participatory process light the path to an uncontested constitutional future given the strength of division evidenced in the Naidu-led survey research, between those who welcome equal citizenship and those who construe this and other provisions as anti-indigenous, forgetting for one moment those who may favour recognition of belonging to Fiji but fear the retribution that will likely be directed at them if this becomes law?

Participatory politics is predicated on the principle of being able to articulate indignation, as was the case of the Occupy movement (, not necesarily in articulating a shared and common Idea, which is what we putatively attribute as a function of the Constituent Assembly that never was. What does Fiji have to gain by raising the spectre of this body – whose composition was to have been decided by the FG anyway, and applicants to which form part of the elite layer of Fiji society involved in directing the country’s ethnopolitical landscape these past decades?

And suppose a Constituent Asembly were to find in favour of the Ghai draft constitution – where would this leave the indigenous Fijian and their ‘disquiet’? The MRG/CCF report recommendations are peculiarly silent on this issue, leaving one to suspect – as if you hadn’t already guessed it – that CSO critiques of the FG are embedded not in disagreement about fundamental principles of equality and government accountability but about the breakdown in process on the way to achieving these principles.

What is missing from the debate is whether multicultural democracy, itself far from perfectly practised in Western Europe, is an Idea too far for complex postcolonial societies like Fiji? In a way, Chapman answers this question when he says that constitution-making is like an act of conflict-resolution. Perhaps the guiding principle of constitutionalism is not to act as a paean to all discontent, but to negotiate a path through that discontent while symbolically reassuring the people that their articulations have been heard and have been considered, though not perhaps acted upon.

The promised post exploring the relevance of consitutionalism – and what that should look like – outside Europe will appear in a few weeks’ time. The next post will likely analyse the MRG/CCF report “Fiji: the challenges and opportunities of diversity”, which can be accessed from the Minority Rights Group International website

Fiji rides the constitutional carousel… again (Part 2)

If the multicultural love-in and kerekere aspects of the Ghai draft constitution (see Part 1) felt a little unreal, enclosed in the same hazy optimism as those British sunbathers who take to the pebble beaches even before the first daffodil has pluckily sneaked its head above the gravelled parapet, then you can take heart in the forthright rationalism of the Fiji Government draft that followed.
In the Fiji Government (“FG” hereafter) draft you’ll find none of the continuity & consanguinity between indigenous past & multicultural future that Ghai valiantly sought to establish, and nothing either of the symbol of the gift that entwines the act of cession – when Britain conceded, after the second time of asking, to colonise Fiji – with subsequent narratives of indigenous Fijian paramountcy.
(By the way, I am well aware that a post-coup unelected ‘government’ brings the use of that word into serious contention, though I maintain that any leadership – no matter its provenance or route to power – ought to be evaluated on what it delivers to the people).
What you will find in the FG draft constitution is clear intent. And that intent is to institute Fiji as a civic nation.  Government must work towards providing access to basic amenities and resources, including clean water, education, and fair wages. It must fulfil this remit via a slimmed-down 45-member parliament and provide just cause when it fails in these responsibilities towards the people of Fiji.
So far, so uncontentious, you might think…. and in terms of pricking the over-inflated belly of Parliament, that seems true enough. But when we get on to talking about access to resources or the electoral system – moving to a strictly one-person one-vote format – the implications for Fiji’s embedded format of ethnic politics, and for those who have rallied around it, are enormous.
Whatever the theories regarding premoden migration flows to Fiji, and discarding this South Pacific archipelago’s distinction in straddling the Melanesian-Polynesian cultural fault-line, the modern Fijian ethnie begins and ends with being ‘Fijian’. Intra-group dissonance simmers along unendingly, and Fiji’s modern politics is littered with the debris of intra-Fijian power plays between the existing confederacy chiefs, but the defining feature of Fiji’s history since colonialism has been a narrative of ethnic conflict.
The phenomenon of ethnic conflict in Fiji is a difficult one to unpick. And a Rotuman friend of mine has challenged my interest in doing so – not because they consider me unequal to the task, thankfully, but because analysing history does not put food in the belly of a starving child. Once I’d decided not to take this attack on ‘academicism’ personally – admittedly not before I’d counted off my own acts of putting food in the bellies of babes and other lost, lonely, dispossessed and discarded people in society, I was left with this thought….
…. ethnicism in Fiji has impelled the country’s focus away from the basic humanity that my friend possesses in heaps; it has mythologised its constituent ethnic communities as the basic unit of kinship, all the while forgetting that the most basic unit of all is our shared humanity. And yet, we move in groups, we congregate with and around people who speak the same language, dress the same, eat the same, share religious beliefs, are intimately aware of and have a place in the same sociocultural structures… we cleave to that which most closely and constantly reminds us of our families. And consequently, the ‘othering’ of, well, others becomes a political necessity.
When ethnic politics gains such stature, such legitimacy, as it has in Fiji, then ‘Cultures without Borders’ as an idea, let alone a practice, must meet with laughable derision. Yet, without it we lose the humanity that enables us to work together to put food in the bellies of starving children. And if there’s anything that we can find to applaud in the FG draft constitution it is the avowal that government in Fiji must strive to provide a certain standard of care and opportunity to its citizens.
Pity, then, that Government’s duty of care is undermined in the FG draft constitution by a Bill of Rights allowing use of force, detainment and rescinding of civil liberties. And curious too that the greatest executive authority rests not merely with the PM but with the Attorney-General, and that the upper house of Parliament (the Senate) has been removed fully. This is where the FG draft opens itself up to critiques of autocratic despotism, having – for those of a civic-nation inclination – set out so exemplary a template regarding government’s duty of care to all citizens.
I won’t dwell on the immunity clauses in the FG draft – when you’ve conducted yourself outside and above the law then seeking protection from judgements of treason and the like seems a fairly understandable impulse. Though, I would argue, greater dignity comes from standing up and saying that you acted in a certain (extra-legal) manner for the betterment of your people, and therefore you are willing to accept the consequences contained therein.
If I were sitting on the fence, I’d say that it remains to be seen whether the FG draft constitution effects the wholesale transition from ethnic to civic state that it seems so focused on achieving. But if there’s one thing we know about Fiji it is that ethnic political entrepreneurship has too strong a heritage and too resilient a nature (,+Is+and+Can+Be)#!/2013/04/what-do-they-mean-by-democratic-fiji.html)  to make a return to ethnic politics in Fiji untenable. And though sidelined by the current FG, the Great Council of Chiefs cannot be considered a spent force in this respect – their silence since being disbanded may seem curious, but they haven’t exited stage left just yet.
In summary, you could say that I’m nervous about the potential for Fiji to become a post-ethnic state as envisaged by the FG constitutional draft; not least because of its effect on the indigenous Fijian sense of security, its ethnic sensibilities as an indigenous group fearing a Maori-like future. And yet, I know from my time in Fiji that via an inner light of imagination Fiji may approach interethnic connaturality (Pio Manoa 1979:185).
(In a future post, I’ll be considering the relevance of constitutionalism outside Europe)

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.