WHEN FIJI'S May 19 coup took place, there was an
immediate cry of
outrage and a widespread call for the reinstatement
of the Chaudhry
government and the rigorous following of the 1997
Constitution. Those two
aims must remain top objectives (along, of course,
with the safe release of
the hostages).
Unfortunately, there has been in a number of quarters
in Fiji (especially
among some of the indigenous people) and even in a
few quarters overseas
(which had been unanimous in their condemnation of
the coup) a tendency to
pull back from these objectives and concede ground to
the hostage-takers on
several of the issues they raised.
This is absolutely
unacceptable. The
power of the gun must not be allowed to dictate
policy.
To make such
concessions will only open the way to endless
violence of this kind in
Fiji's future, and to a spate (excuse the pun) of
similar problems in
other countries of the Pacific (as we have already
seen happen in the
Solomons) - not just island nations, by the way, but
Australia and New
Zealand too. If people see that violence is rewarded
and that the peaceful
efforts of right-thinking citizens are ignored, this
can only result in a
large increase in lawlessness throughout the region.
At the outset the President seemed determined
to follow the proper
constitutional path. Very quickly, however, he
wavered, when he first
announced that he could not guarantee the return of
the Chaudhry government.
The return of the Chaudhry government was, and is, an
absolute essential for
upholding constitutionality and the rule of law.
One might like to argue that it would not in fact be
prudent for Chaudhry to
continue as Prime Minister, or even for the People's
Coalition to continue
at the helm without seeking another mandate. Or one
might suggest that they
should continue to lead, but make arrangements for a
more widely consensual
resolution of important matters, especially those of
a sensitive nature to
the indigenous people. They might even arrange to
have an impartial study
made of certain parts of the 1997 Constitution,
changing them according to
the parameters laid down in that Constitution if that
were thought
desirable. But all these are issues for the
reconvened Parliament to
consider. Constitutionally, it is up to those elected
representatives, and
noone else, to make those judgements (after the
hostages have been released
and had sufficient rest, of course, and after they
have been fully briefed
and given time to weigh up the situation).
The President's initial respect for the Constitution
later took a more
questionable turn when he purported to dismiss the
Chaudhry Cabinet, having
prevailed upon Ratu Tevita Momoedonu to assist him in
this. Shortly after
this, he ignored the Constitution altogether, fleeing
the President's
residence and passing over executive power to the
Army. The Army then made
things worse, first by putatively revoking the 1997
Constitution and then,
after dallying with the Speight group as the Great
Council of Chiefs (GCC)
had done, by deciding to set up an Interim Government
whose composition and
term of office is at this juncture not at all clear.
Where does this leave Fiji constitutionally? Firstly,
as is clear to most,
Speight has no power to revoke the Constitution. What
is equally true
though, is that the GCC and the Army have no power to
revoke or change it
either! The 1997 Constitution was passed after
massive consultation (though
no referendum) with the people, being passed
unanimously by both Houses of
Parliament and the GCC. Not even the will of the
majority may change the
Constitution. Section 191 (2) of the Constitution
requires than at least two
thirds of both Houses of Parliament approve a change
to it, and there are
additional safeguards as well. These provisions exist
precisely to protect
all sectors of society from domination by any other
group.
The disenchantment of some with either the
Constitution or the Government of
the day gives no right to any group to revoke that
Constitution, especially
when there's been no sincere effort to address real
or imagined wrongs
through available legal processes. The petitions that
had been brought to
the government were in fact being addressed. It is
clear that for many,
their so-called grievances were only an excuse to
destabilise the country
and pursue personal and/or racist objectives.
Whatever shortcomings the
Chaudhry government had in no way merited their being
couped. Indeed it was
a part of the destabilization campaign to ignore the
good things the
Chaudhry government did, and to exaggerate, distort,
or even invent, bad
things.
There is another serious question to be asked too. Is
it only Speight who is
holding guns to the Chaudhry government's heads to
negotiate a deal? Have
not others in effect been doing the same? Some have
professed to sack the
Chaudhry government, throw out the 1997 Constitution
and make other moves
detrimental to the interests of the People's
Coalition (not to mention the
people of Fiji as a whole) while Chaudhry and his
government are being held
hostage.
Chaudhry was accused at times of being
insensitive, arrogant or
disrespectful, but what of the insensitivity,
arrogance and disrespect of
those people who discuss and plan the future of Fiji
without involving the
elected government of the people at all? Not only
that, but they have been
so incredibly racist as to exclude Indo-Fijians from
the discussions
entirely!
Theoretically, of course, it could be claimed that
all this negotiating is
mere posturing. No deals made with a hostage-holder
have validity. Thus,
when the hostages are released, all resignations,
proposals and agreements
can be reneged upon and more genuine negotiations
take place involving all
sectors of society.
That certainly is what all
pressure groups, including
outside governments, should try to persuade the
current leaders. But the
present trend seems to be different. Whether we
consider the actions of the
President, the Army, the GCC, or more recently the
Western chiefs, these
various groups of people seem to have acted with real
intent to follow on in
the direction they are currently heading: abrogating
the 1997 Constitution,
installing their own government, and changing the
Constitution willy-nilly
to further favour indigenous interests.
So where are
we constitutionally?
Firstly, as stated above, neither Speight, the GCC,
the President, or the
Army has the power to revoke or change the
Constitution (see Section 190).
The situation of the Government being held hostage is
not envisaged by the
Constitution, but the President certainly did
correctly in invoking the
executive authority given him by Section 85. His deal
with Momoedonu,
however, is wrong constitutionally (even though Ratu
Mara claimed his
actions to be on the Afringes of constitutionality@,
or some such term).
Section 96 makes it clear that the President acts in
his own deliberate
judgement only as prescribed within the Constitution.
Section 99 (1) says
quite clearly that Athe President appoints and
dismisses other Ministers on
the advice of the Prime Minister@. Even though
according to Section 106 the
President may appoint acting ministers (including an
acting Prime Minister),
Sections 96 and 99 make it clear that this can only
be done on the advice of
the Prime Minister.
The whole operation with Momoedonu, therefore, was
unconstitutional as he
was not properly appointed. It was also wrong on
other grounds. The
President instructed Momoedonu beforehand what he was
expected to do: have
the Cabinet dismissed, have Parliament prorogued, and
then resign. But this
is backwards. It is not the President's job to tell
the (acting) Prime
Minister what to do about Cabinet and Parliament. It
is the (acting) Prime
Minister who is to determine such things and then
instruct the President
accordingly. By putting pressure on Momoedonu to act
in this particular way,
the President was acting improperly. It was
reprehensible from another point
of view too. What good was it supposed to do to
dismiss the legitimate
Cabinet? Was that a fitting way to treat innocent
hostages?
A further interesting point is that, even had Ratu
Mara's actions with
Momoedonu been constitutional, all that was achieved
was that the Ministers
were dismissed and Parliament prorogued.
But both
Houses of Parliament are
still intact, as is Prime Minister Chaudhry's
position as Prime Minister.
Section 99 (quoted above) refers only to "other
Ministers". A Prime Minister
may not be dismissed except under the circumstances
of Section 109 (1),
which clearly did not take place. And of course, when
Momoedonu resigned, he
resigned only as (so-called) acting Prime Minister.
The fact that he
resigned can in no legal or sensible way be taken as
meaning that Prime
Minister Chaudhry also resigned! Thus, even if the
dismissal of Cabinet had
been constitutional, Prime Minister Chaudhry, when
freed, can instruct the
President to appoint a new one (or, for that matter,
the same old one).
Similarly, it must be pointed out that, although the
President prorogued
Parliament (Section 59 (2)), he had also declared a
state of emergency.
Section 188 (1) declares that "upon the proclamation
of a state of
emergency, the President must summon the House of
Representatives to meet".
As soon as the hostages are released therefore, the
House must meet. (Note
that by Section 188 (2) the House would have had to
meet even if it had been
dissolved - all the more so then when it has only
been prorogued).
Once the
House meets, they have the power to "disallow" the
state of emergency
(Section 189 (1)) or make whatever other provisions
they deem desirable.
Prime Minister Chaudhry too, of course, can instruct
the President to lift
the prorogation of Parliament. Certainly if the state
of emergency can be
disallowed, the prorogation of Parliament made
because of it can also be
disallowed.
The President acted in disregard for the Constitution
when he passed over
executive power to the Army. There is no provision in
the Constitution
allowing him to do this. What's more, it was totally
unnecessary. He is the
Army's Commander-in-Chief (Section 87).
He could have
given the Army quite a
free hand while still remaining in charge. If because
of his age, his
extreme unpopularity among the hostage-takers, or the
fact that his
offspring is being held hostage, he felt he should
vacate the position at
least for a time, he should have handed over his
authority to the
Vice-President as provided for in the Constitution
(Section 88 (2)).
The reinstatement of the Chaudhry government and the
due following of the
1997 Constitution must remain the prime goals of
present activity by foreign
governments and those many groups inside the country
concerned for democracy
and the rule of law.
The way Fiji is headed, it will
become a pariah state,
incurring trade boycotts, sporting bans, and other
sanctions that will be
hard on ordinary people. But the goals of freedom,
justice and equality
cannot be attained without sacrifice. Those who
support such penalties are
not to be viewed as enemies of the State but rather
its best friends.
They
are trying to bring bad leadership to its senses,
make it move with the
times and conduct itself according to the basic norms
of civilized society.
It is better to make a strong concerted effort that
brings quick results,
even at the cost of some suffering, than to let Fiji
drift steadily further
into racial prejudice, moral bankruptcy, economic
decline, and a protracted
struggle - things that will raise the levels of
tension and unhappiness
throughout the country over a long period, and create
greater overall
distress.
Better a timely amputation than a
protracted painful death from
gangrene.
The blame for our troubles must be put squarely on
those who conducted the
coup and those who are supporting or accommodating
them, not on those who
are supporting bans or the like, for such strong
measures are definitely
necessary.
It has been quite disturbing to see how
the half-hearted measures
employed after the 1987 coups have even been cited by
George Speight's group
as a reason not to worry about their illegal
activities.
Their illegal
regime will be accepted, and normal economic and
other ties will be resumed
soon enough, they claim. They have noted how violence
was rewarded before.
This must not be allowed to happen again.
Even if the prospects for the restoration of true
democracy seem bleak, they
also seemed bleak in 1987. There is a large pool of
good and honest people,
whose religious and moral principles can be relied
upon to steer them
towards justice (not like those who blasphemously
employ violent and unjust
means to proclaim a so-called "Christian(?)" state).
Under God, it is on
these good people we must rely to restore Fiji=s
integrity. That is what
democracy is about.
David Arms is a Catholic priest who has researched
and written widely on Fiji's 1997 constitution. He is
a member of the Citizens' Constitutional Forum.
